Employees and Employee Benefits. (a) At least ten (10) Business Days prior to the Closing Date, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.” (b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing. (c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closing. (d) Effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred 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 Transferred Employee participates. (e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
Appears in 3 contracts
Samples: Termination Agreement (Colony Capital, Inc.), Termination Agreement (Colony Capital, Inc.), Termination Agreement (Colony Credit Real Estate, Inc.)
Employees and Employee Benefits. (a) No later than January 15, 2014, Contributor shall promptly provide the Midstream Business Employee Information in writing to Acquirer with respect to each Midstream Business Employee. Thereafter as requested by Acquirer, and 15 days prior to the Closing Date whether or not requested by Acquirer, Contributor shall provide Midstream Business Employee Information that is accurate, complete and up-to-date as of the time such information is provided with respect to each Midstream Business Employee. At least ten (10) Business Days 10 days prior to the Closing Date, CLNC Acquirer shall, or shall cause an Affiliate of CLNC to, offer to each of the employees of Manager and/or any one of its Affiliates whoto, as make offers of employment to the date Midstream Business Employees of this AgreementAcquirer’s choosing who pass Acquirer’s drug and other employment screening procedures, are primarily engaged in providing services under and each such offer shall be on terms consistent with the Management Agreement, whose names are requirements set forth on in this Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus 5.8. From and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of after the Closing Date, the Midstream Business Employees that timely accept offers of employment as described in the preceding sentence and Manager report to work with Acquirer or one of its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, Affiliates on the date immediately preceding or after the Closing Date. Those Employees who accept employment Date in accordance with such offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be are referred to herein as “Transferred Employees.”
” (b) During which such term shall include Transition Employees to the extent applicable). To the extent that any Midstream Business Employee does not receive an offer of employment from Acquirer or does not accept the one-time offer of employment from Acquirer or one of its Affiliates, Acquirer and its Affiliates are precluded from making any subsequent offers of employment to such Midstream Business Employee for a period commencing of six months following the Closing Date unless Acquirer or one of its Affiliates pays or reimburses Contributor for the cost of any severance pay and benefits paid or provided by Contributor under the COC Severance Program or Executive Change of Control Agreement with respect to such Midstream Business Employee. In addition, if Acquirer and its Affiliates shall terminate any Transition Employee during the 90-day period beginning on the Closing Date and ending on the date which Acquirer or one of its Affiliates is twelve (12) required to provide severance benefits to such terminated Transition Employee under Section 5.8(f), then Acquirer and its Affiliates shall be precluded from making any subsequent offers of employment to such Transition Employee for a period of six months from the Closing (or if earlier, following the date of the Transferred such Transition Employee’s termination of employment with CLNC Acquirer and its Affiliates unless Acquirer or an Affiliate one of CLNC), CLNC shall, its Affiliates pays or shall cause an Affiliate reimburses Contributor for the cost of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary any severance pay and benefits under the COC Severance Program that are paid or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided Contributor, including any amount paid or reimbursed to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the ClosingAcquirer or its Affiliates under Section 5.8(f).
(cb) CLNC Except as otherwise specifically provided for in this Section 5.8, for the 12 month period immediately following the Closing (the “Continuation Period”), Acquirer shall, or shall cause its Affiliates to, give provide (i) each Transferred Employee full credit for with (A) a base pay or salary rate at least equal to the base pay or salary rate as in effect with respect to such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan Date, but only if the information regarding such base pay or salary rate is (I) timely provided to Acquirer pursuant to Section 5.8(a) above and (II) accurate, and (B) bonus opportunities and employee benefits, including vacation and paid time off, no less favorable, in which the Transferred Employee participated; providedaggregate, howeverthan the bonus opportunities and employee benefits offered or provided to similarly situated employees of Acquirer and its Affiliates, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or and (ii) to each Transferred Employee who is terminated without “cause” or resigns for “good reason” (each as defined in the extent that such recognition would result COC Severance Program) during the Continuation Period with severance benefits in a duplication accordance with Section 5.8(f), below.
(c) Effective as of coverage or benefits with respect to the same period of service. CLNC Closing, Acquirer shall, or shall cause its Affiliates to, take commercially reasonable steps to cause each compensation or employee benefit plan maintained by Acquirer or any of its Affiliates and in which any Transferred Employee becomes eligible to participate in, to treat the prior service of such Transferred Employee with any of Contributor and its Affiliates as service rendered to Acquirer or its Affiliates, as the case may be, for vesting and eligibility purposes only, but only to the extent that (i) such service crediting is permitted pursuant to the terms of such plans, does not violate any applicable Law and does not result in duplication of benefits for the same period of service and (ii) information regarding such service is (A) timely provided to Acquirer pursuant to Section 5.8(a) above and (B) accurate.
(d) Acquirer shall, or shall cause its Affiliates to, take commercially reasonable steps to (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees limitation on health and their eligible dependents under welfare coverage of any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents due to pre-existing conditions and/or waiting periods, active employment requirements, and requirements to show evidence of good health under the applicable health plans in which and welfare plan of Acquirer or any Affiliate of Acquirer to the extent such Transferred Employee participated and his or her eligible dependents are covered under a health and welfare benefit plan of Contributor or any of its Affiliates (as the case may be), and such conditions, periods or requirements are satisfied or waived under such plan of Contributor or any of its Affiliates, immediately prior to the Closing during Date and (ii) credit each Transferred Employee and his or her eligible dependents with all deductible payments, co-payments and co-insurance paid by such employee and covered dependents under the portion medical employee benefit plan of Contributor or any of its Affiliates (as the plan year case may be) prior to the Closing Date during the year in satisfying which the Closing Date occurs for the purpose of determining the extent to which any deductibles, co-payments such employee and his or her dependents have satisfied their deductible and whether they have reached the out-of-pocket maximums maximum under health plans maintained any medical employee benefit plan of Acquirer or any Affiliate of Acquirer for the calendar year in which the Closing Date occurs, but, with respect to any actions pursuant to subsection (i) or (ii), above, only (A) to the extent permitted by CLNC the terms of such plans, applicable Law and third party insurers and administrators, and (B) if the information necessary to accomplish the actions contemplated by subsections (i) and (ii), above, is accurate and is timely received by Acquirer.
(e) In the event that a Transferred Employee makes a voluntary election pursuant to Section 401(a)(31) of the Code to roll over his or her account balance in the Contributor 401(k) Plan to a tax-qualified defined contribution plan sponsored by Acquirer or one of its Affiliates in which such Transferred Employee is eligible to participate after participate, Acquirer agrees to take commercially reasonable steps to cause such tax-qualified defined contribution plan to accept such rollover in cash, but only to the extent permitted by applicable Law and the terms of such Acquirer plan. Contributor covenants that, as of the date of each such rollover by a Transferred Employee, the Contributor 401(k) Plan shall be qualified pursuant to Section 401(a) of the Code.
(f) Acquirer shall, or shall cause one of its Affiliates to, provide severance benefits to each non-executive Transferred Employee who is a full-time employee of Acquirer that is terminated involuntarily without “cause”, or resigns for “good reason” (each as defined in the COC Severance Program, provided that in the case of “good reason”, it is expressly understood that the term is evaluated by appropriate comparison to such non-executive Transferred Employee’s prior employment with Eagle Rock Energy G&P, LLC), from Acquirer and its Affiliates during the Continuation Period equal to the amount of the severance benefits to which such Transferred Employee would have been entitled under the COC Severance Program, as set forth in Section 5.8(f) of Contributor’s Disclosure Schedules, as a result of such a termination following a “Change of Control” within the meaning of the COC Severance Program; provided, however, that, if the cost of the severance benefits to be paid by Acquirer or its Affiliates to any Transferred Employee under this Section 5.8(f) exceeds the Severance Cap for that Transferred Employee, then Contributor shall pay Acquirer the amount of such excess within 10 days of Acquirer’s written demand.
(g) If any Executive becomes a Transferred Employee and is terminated involuntarily without “cause”, or resigns for “good reason” (each as defined in such Executive’s Executive Change of Control Agreement, provided that in the case of “good reason”, it is expressly understood that the term is evaluated by appropriate comparison to such Executive’s prior employment with Eagle Rock Energy G&P, LLC), from Acquirer and its Affiliates during the Protection Period (as defined in such Executive’s Executive Change of Control Agreement), Acquirer shall, or shall cause one of its Affiliates to, provide severance benefits to each such Executive equal to the amount of the severance benefits to which such Executive would have been entitled under (i) the Executive Change of Control Agreement and (ii) that certain letter agreement between the Executive and Eagle Rock Energy G&P, LLC dated as of December 23, 2013 (but only with respect to those comparable awards (as determined by Acquirer) granted to Executive under Acquirer’s long-term incentive plan pursuant to Section 5.8(m)), each as applicable to such Executive and as set forth in Section 5.8(g) of Contributor’s Disclosure Schedules, as a result of such a termination following a “Change of Control” within the meaning of such Executive’s Executive Change of Control Agreement.
(h) Acquirer shall, or shall cause one of its Affiliates to, provide compensation to Transferred Employees that is comparable to that which each Transferred Employee would have been entitled to under the awards granted to each such Transferred Employee under the Cash Plan in the ordinary course of business consistent with past practice at least five business days prior to the Closing Date, as set forth in Section 5.8(h) of Contributor’s Disclosure Schedules, and outstanding as of the same plan year in which such deductiblesClosing Date; provided, co-payments or out-of-pocket maximums were incurred; and (iii) waive however, that Acquirer shall be required by the foregoing to provide compensation that is comparable with respect to any waiting period limitation or evidence of insurability requirement that would otherwise be applicable award granted to a Transferred Employee under the Cash Plan after December 1, 2013, only if Acquirer preapproves in writing the grant of such award.
(i) Except as otherwise specifically provided for in Section 5.8(j), Contributor shall be solely responsible for and his shall timely discharge all liabilities and obligations arising from Contributor’s employment of all its employees, including those who subsequently become Transferred Employees, including salaries, wages, bonuses, payroll Taxes, retirement, and any other claims, obligations and expenses of any kind arising out of the employment by, or her eligible dependents termination from the employment of, Contributor.
(j) Acquirer and its Affiliates shall be responsible for any accrued but unpaid bonuses as correctly listed in Section 5.8(j) of Contributor’s Disclosure Schedules (which shall be provided at least 10 days prior to the Closing Date) payable to any Transferred Employee on or after the ClosingClosing Date, except subject to the extent Transferred Employee’s continued employment by Acquirer and its Affiliates through the date such waiting period or requirement amount would otherwise be paid; provided that, notwithstanding the foregoing, Contributor shall have been applicable under a comparable Benefit Plan the ability to pay any such accrued but unpaid bonuses through the Closing Date and, for the avoidance of doubt, neither Acquirer nor its Affiliates shall be responsible hereunder for any such bonuses paid by Contributor.
(k) For purposes of determining the number of vacation days to which each Transferred Employee shall be entitled during the calendar year in which the Closing Date occurs, Acquirer shall honor all accrued or earned vacation days and unused paid time off of such Transferred Employee participated immediately as of the Closing Date, as correctly set forth in Section 5.8(k) of Contributor’s Disclosure Schedules; provided that, Contributor shall be permitted to update the information on Section 5.8(k) of Contributor’s Disclosure Schedules on or prior to the ClosingClosing Date to account for any additional accrued or earned vacation days and unused paid time off as a result of the period between the date hereof and the Closing Date, determined in accordance with the paid-time-off policy of Contributor in effect and provided to Acquirer prior to the date of this Agreement.
(dl) Contributor shall be solely responsible for all obligations and liabilities with respect to the continuation coverage requirements of Section 601 et. seq. of ERISA and Section 4980B of the Code and similar state Law for all employees of Contributor and its Affiliates (and their dependents and beneficiaries) who are not Transferred Employees for whom a “qualifying event” or similar event under such Laws occurs or has occurred.
(m) Effective as of the Closing, except as may otherwise be agreed between the parties Acquirer shall, or shall cause one of its Affiliates to, replace, for each Transferred Employee, all unvested restricted unit awards granted under the Transition Services Agreement, the Transferred Employees shall cease active participation Contributor’s Long Term Incentive Plan in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees ordinary course of business consistent with past practice at least five business days prior to the Closing Date. For purposes , as set forth in Section 5.8(m) of this AgreementContributor’s Disclosure Schedules and outstanding as of the Closing Date, the following claims shall be deemed to be incurred with a comparable award (as follows: (idetermined by Acquirer) 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) under Acquirer’s long-term disability benefits, incentive plan (with the value of such replacement award determined by reference to the fair market value of Contributor’s and Acquirer’s common units on the eligibility date determined Closing Date); provided, however, that Acquirer shall be required by the long-term disability insurance carrier for foregoing to replace any unvested restricted unit award granted under Contributor’s Long Term Incentive Plan after December 1, 2013 only if Acquirer preapproves in writing the plan in which the applicable Transferred Employee participatesgrant of such unvested restricted unit award.
(en) This The provisions of this Section 4.03 5.8 are for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be binding construed to confer upon or give to any person (including, for the avoidance of doubt, any Transferred Employee or other current or former employee of Contributor or any of their respective Affiliates, other than the parties hereto and inure solely their respective permitted successors and assigns, any legal or equitable or other rights or remedies (including with respect to the benefit of each of the Parties to this Agreement, and nothing matters provided for in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever 5.8) under or by reason of any provision of this Agreement. Nothing in this Section 4.035.8 shall create, amend, or terminate or be deemed to create, amend or terminate (or prevent the amendment or termination of) any Employee Benefit Plan or any compensation or benefit plan of Contributor or Acquirer or any of their respective Affiliates. Acquirer shall have no obligation to continue to employ or retain the services of any Transferred Employee for any period of time following the Closing. Nothing contained herein, express in this Agreement or implied, resulting from the transactions contemplated hereunder shall or shall be construed deemed to establishcreate a contract of employment between Acquirer and its Affiliates, amend or modify on the one hand, and any benefit planMidstream Business Employee, programon the other hand, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 all Transferred Employees shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any be regarded as “at will” employees of Acquirer and its Affiliates or compensation or benefits of any nature or kind whatsoeverfor all purposes.
Appears in 2 contracts
Samples: Contribution Agreement (Eagle Rock Energy Partners L P), Contribution Agreement (Regency Energy Partners LP)
Employees and Employee Benefits. (a) At least ten (10) Business Days prior to the Closing Date, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing beginning on the Closing Date and ending on the date which is twelve first (121st) months from anniversary of the Closing (or if earlierDate, Buyer shall provide the date salaried employees of the Transferred Employee’s termination Company or any of employment its Subsidiaries who continue to be employed by the Company or any of its Subsidiaries (the “Company Employees”) with CLNC or an Affiliate of CLNC)base compensation, CLNC shallcommission and annual bonus opportunities and employee benefits that are substantially comparable in the aggregate to the base compensation, or shall cause an Affiliate of CLNC tocommission and annual bonus opportunities and employee benefits provided to such Company Employees immediately prior to the Closing Date, maintainexcluding, for each Transferred Employeeall purposes any incentive compensation and defined-benefit pension benefits. In addition, for the period beginning on the Closing Date and ending on the first (i1st) their respective Total Target Direct Compensation Opportunity (which anniversary of the Closing Date, Buyer shall include base salary or hourly wages which provide severance benefits in amounts that are no less than the base salary or hourly wages provided by Manager as amounts that would be calculated under that certain PSAV Severance Policy effective January 1, 2013 (the “Seller Severance Policy”), upon termination of the date employment of this Agreement any Company Employee who would be eligible to receive severance under the Seller Severance Policy, notice of which termination is given during such period (and previously provided subject to CLNCsuch 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) (but excluding any equity- or equity-based incentives and any transaction-vesting bonus and incentive plans) identified on Section 4.4 of the Seller Disclosure Letter in accordance with their terms in effect immediately prior to the Closing Date, and shall calculate 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, from and after the Closing Date, Buyer shall and shall cause the Company and its Subsidiaries to credit the Company Employees with the same amount of service as was credited by the Company and its Subsidiaries prior to the Closing Date (i) for eligibility and vesting purposes (but not for purposes of accruals under any defined-benefit pension plan) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations determinations, in the case of each of (i) and (ii) under any benefit plans established or maintained by CLNC compensation plan, program, agreement or its Affiliates arrangement in which they participate of Buyer or the Transferred Employee participates following Company any of its Subsidiaries on or after the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; providedDate, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) except to the extent that such recognition a credit would result in a the duplication of coverage or benefits with respect benefits. In addition, Buyer shall (A) cause to the same period be waived all pre-existing condition exclusions and actively at work requirements and similar limitations, eligibility waiting periods and evidence of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents insurability requirements under any employee benefit plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred any of the Company Employees may be eligible commence to participate following the Closing; Closing Date (iiany such plan, a “New Plan”) honor to the extent waived or satisfied by a Company Employee under any Company Benefit Plan in which they are then participating and (B) cause any deductible, co-payment insurance and covered out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents expenses paid under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing Company Benefit Plan in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence commencement of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closing.
(d) Effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable New Plan occurs by any Company Employee (or covered dependent thereof) to be taken into account for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees prior to the Closing Date. For purposes of this Agreementsatisfying the corresponding deductible, coinsurance and maximum out of pocket provisions under any applicable New Plan in 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit year of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03initial participation. Nothing contained herein, express or implied, shall be construed is intended to establish, amend confer upon any employee of the Company or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create its Subsidiaries any right in to continued employment for any Transferred Employee period or continued receipt of any specific employee benefit, or shall constitute an amendment to or any other Person modification of any New Plan or Company Benefit Plan.
(b) No later than the first payroll date following the Closing Date, Buyer shall, or shall cause the Company to, make the payments to the Persons named on the Phantom Plan Payment Schedule and the LTIP Payment Schedule in the respective amounts specified therein for each such Person. Such payments shall be in full and final satisfaction of such Persons’ rights under 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 provide any required notice under WARN and any other applicable Law and to otherwise comply with any such statute with respect to any continued employment with CLNC “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 its Affiliates or compensation or benefits the transactions contemplated hereby. Seller shall deliver to Buyer at Closing a list of any nature or kind whatsoeverall employees whose employment terminated within 90 days prior to Closing and the reason for each termination.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (PSAV, Inc.)
Employees and Employee Benefits. (a) At least ten (10) Business Days prior to the Closing Date, CLNC shallSellers shall provide, or shall cause an Affiliate to be provided not later than thirty (30) days following the date hereof, to Buyer, to the extent permitted by Applicable Law, such information regarding the Business Employees as is contained in each Business Employer’s personnel records, including copies of CLNC tosuch records as may be reasonably requested by Buyer.
(b) Sellers shall take, offer or shall cause to be taken, all necessary actions to terminate ADC Software USA’s status as a participating employer in each of the employees of Manager and/or any of its Affiliates whoU.S. Domestic Plans, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment termination to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, ; Sellers shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shalltake, or shall cause an Affiliate to be taken, all necessary actions to terminate the participating employer status of CLNC toany ADC Software Ireland Group Member in each Foreign Plan listed on Schedule 3.11(i), maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager such termination to be effective as of the Closing Date.
(c) Buyer shall offer to hire, as of the Closing Date, each ADC Foreign Subsidiary Business Employee listed on Schedule 5.4(c) (such list to be as of the date set forth on Schedule 5.4(c) and as updated prior to the Closing Date to reflect changes permitted under Article 5 of this Agreement or changes agreed to in writing by Buyer between the date of this Agreement and previously provided the Closing Date) or Buyer shall take commercially reasonable efforts to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that areeffect the transfer, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
Closing Date, of such ADC Foreign Subsidiary Business Employee from the ADC Foreign Subsidiary to Buyer in accordance with the Foreign Employee Transfer Regulations and any other Applicable Law. Offers of employment (cconditioned upon the closing of the transactions contemplated by this Agreement) CLNC shall, will be extended thirty (30) days or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) more prior to the Closing for eligibility Date, and vesting purposes any such offer or direct transfer of employment will be on terms and for purposes conditions reasonably similar to the employment terms of vacation accrual and severance benefit determinations under any benefit plans established each ADC Foreign Subsidiary Business Employee, including salary terms, of such individual’s employment with a member of the ADC Software Group or maintained by CLNC or its Affiliates in which the Transferred Employee participates following ADC Foreign Subsidiary as of the Closing Date. Each ADC Foreign Subsidiary Business Employee who either accepts Buyer’s offer of employment or is transferred from the ADC Foreign Subsidiary to the same extent recognized by CLNC or its Affiliates immediately prior Buyer is referred to the Closing under herein as a comparable Benefit Plan “Foreign Subsidiary Transferred Employee.” Buyer shall satisfy in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits all material respects Applicable Law with respect to the same employment of each Foreign Business Employee (including any Foreign Subsidiary Transferred Employee) by Buyer. Buyer shall assume all obligations and Liabilities arising under the Foreign Employee Transfer Regulations in respect of the period beginning on or after the Closing Date that become due to any Foreign Business Employee (including any Foreign Subsidiary Transferred Employee) including any obligations and Liabilities in connection with any change in the terms and conditions of service. CLNC shallsuch Foreign Business Employee’s employment with Buyer from the terms and conditions of such individual’s employment with a member of the ADC Software Group or ADC Foreign Subsidiary as of the Closing Date.
(d) Buyer will be responsible for all compensation and all other rights and benefits accruing and becoming due with respect to the period beginning on or after the Closing Date to each Foreign Subsidiary Transferred Employee under such individual’s employment agreement, if any, and/or the Foreign Employee Transfer Regulations.
(e) To the extent permitted by Applicable Law, Buyer shall recognize and credit each Continuing Employee with such individual’s unused vacation, personal leave days, leave entitlement or shall cause its Affiliates topaid time off balance with the ADC Foreign Subsidiary or ADC Software Group member as of the Closing Date.
(f) On and after the Closing Date, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may each Continuing Employee will be eligible to participate following in the Closing; employee benefit plans maintained by Buyer or Buyer’s Affiliate for similarly situated employees of Buyer or Buyer’s Affiliate (ii) honor “Buyer’s Plans”), subject to any deductible, co-payment eligibility requirements applicable to such plans and out-of-pocket maximums incurred by Buyer’s obligations under other provisions of this Section 5.4. Buyer shall offer each Continuing Employee who is a Transferred U.S. Domestic Business Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated who, immediately prior to the Closing during the portion Date were participants in a U.S. Domestic Plan that is a group medical plan, with coverage as of the Closing Date under a Buyer’s Plan that is a group medical plan, subject to the eligibility requirements under such group medical plan. Buyer shall use commercially reasonable efforts to ensure that for purposes of (i) waiting periods for eligibility to participate under Buyer’s Plans, (ii) vesting service periods under Buyer’s Plans, (iii) any pre-existing condition limitation period or restriction under Buyer’s medical and/or disability benefit plans and (iv) length of service periods for determining benefits under Buyer’s or Buyer’s Affiliate’s vacation, personal leave days, leave entitlement or paid time off programs, severance plan year and short-term disability plan for which such Continuing Employee may be eligible on or after the Closing Date, that service by such individual with the ADC Software Group, ADC Foreign Subsidiary, Sellers or other Affiliates shall be treated as service with Buyer and its Affiliates, to the extent such treatment does not compromise Buyer’s applicable plan compliance with ERISA, the Code or other Applicable Laws and only to the extent service was recognized under the similar or comparable U.S. Domestic Plan, Foreign Plan, or ADC Foreign Subsidiary Plan, as applicable. Notwithstanding the foregoing, such participation and service credit shall be governed by, subject to, and limited by, Applicable Law, including the Foreign Employee Transfer Regulations.
(g) Sellers and Buyer will each reasonably cooperate to effect the transfer of retirement account balances under ADC Foreign Subsidiary Plans to an existing retirement plan or a new retirement plan established by Buyer or its Affiliates, in accordance with the terms of the applicable plans and Applicable Law (including, but not limited to, the Foreign Employee Transfer Regulations) and Sellers and Buyer shall execute or cause to be executed such further agreements to provide for the transfer of such retirement account balances as may be reasonably required.
(h) To the extent permitted under relevant third party contracts and Applicable Law, effective as of the Closing Date, Sellers shall cause the Foreign Plans, other than any Foreign Plan listed on Schedule 3.11(i), sponsored or administered by Affiliates of ADC Software Canada in which Business Employees employed by ADC Software Canada (“Canadian Business Employees”) participate to be transferred and assigned to Buyer or Buyer’s Affiliate, and Buyer or Buyer’s Affiliate agrees to accept and assume such plans (“Canadian Group Plans”) and, subject to clause (i), all obligations, liabilities and claims in relation thereto and Sellers and Buyer shall execute or cause to be executed such further agreements to provide for the transfer of the Canadian Group Plans as may be reasonably required.
(i) In relation to Canadian Group Plans transferred to Buyer which provide for the funding of benefits as they accrue, whether by premium, contribution or segregation of assets, Sellers and Buyer agree that, subject to obtaining any approvals or consents required from Governmental Authorities or third parties, under Applicable Law or third party contracts, arrangements shall be made for transfers of assets and liabilities (“Reverse Transfers”) from transferred Canadian Group Plans to reasonably comparable employee benefit plans (“New ADC Canadian Plans”) to be established or designated by Sellers (or their Affiliates) in relation to members of the Canadian Group Plans who are not Canadian Business Employees (“ADC Retained Canadian Employees”), or who are Terminating Employees whose termination dates are prior to the Closing in satisfying any deductiblesDate. For the purposes of Reverse Transfers, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible the assets and liabilities to participate after be transferred shall be valued as at the Closing Date using the methods, assumptions, records and information employed in connection with the same plan year most recent valuations or reports prepared in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable relation to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately Canadian Group Plans prior to the Closing.
(dii) Effective as of After the ClosingClosing Date, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred ADC Retained Canadian Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that and Terminating Employees whose termination dates are incurred by the Transferred Employees prior to the Closing Date. For purposes of this Agreement, the following claims Date shall be deemed cease to be incurred as follows: participate in transferred Canadian Group Plans and shall commence participation in and accrue benefits under New ADC Canadian Plans.
(i) lifeIn connection with the removal of Nonbusiness Assets and Excluded Employees from ADC Software Ireland pursuant to Section 5.15, accidental death and dismemberment, short-term disability, and workers’ compensation insurance benefits, on there may be a transfer of retirement account balances under the ADC Software Ireland Foreign Plan that is a retirement plan to a new retirement plan established for such Excluded Employees. In the event giving rise of such transfer, Sellers and Buyer will each reasonably cooperate to effect the transfer of retirement account balances to a new retirement plan in accordance with the terms of the plans and Applicable Law (including, but not limited to, the Foreign Employee Transfer Regulations) and Sellers and Buyer shall execute or cause to be executed 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 further agreements to provide for the plan in which the applicable Transferred Employee participatestransfer of such retirement account balances as may be reasonably required.
(ej) This Section 4.03 If Buyer or any of its Affiliates terminate the employment of any Continuing Employee without cause within six (6) months after the Closing Date, then Buyer shall be binding upon and inure solely provide, or shall cause its Affiliate to the benefit of each of the Parties to this Agreementprovide, and nothing in this Section 4.03, express any such Continuing Employee with severance benefits at least as favorable as those described on Schedule 5.4(j).
(k) Nothing herein expressed or implied, implied shall confer upon any Business Employee or other Person employee, former employee, leased employee, independent contractor or consultant of Sellers or the Business Employers or legal representatives thereof, any rights or remedies of remedies, including right to employment or continued employment for any nature whatsoever specified period, under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoeverAgreement.
Appears in 1 contract
Employees and Employee Benefits. (ai) At least ten Effective as of and following the Closing for the lesser of (10A) a period of 12 months and (B) the Company's next scheduled salary review in the Ordinary Course of Business Days following the Closing Date, each Company Employee shall continue, for so long as such Company Employee may be employed by the Company in the sole and absolute discretion of the Company following the Closing, to receive a base salary or hourly wage no less than that in effect immediately prior to the Closing DateDate and after such period, CLNC shall, or questions of salary and hourly wage shall cause an Affiliate of CLNC to, offer to each of be determined by Buyer in its sole discretion. During the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of 12 month period following the Closing Date, such Company Employee shall receive benefits under employee benefit plans (excluding equity plans and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(bother incentive compensation) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which that are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that aresubstantially similar, in the aggregate, substantially similar to those provided to the Employees immediately prior to benefits provided under the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25Company Plans set forth on Section 3(s) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for Disclosure Schedule to such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates employees immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closing.
(d) Effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees prior to the Closing Date. For The Buyer agrees that if the 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 this Agreementvesting, eligibility for participation and seniority, but not for purposes of benefit accrual under any defined benefit retirement plan or retiree medical plan, the following claims Buyer shall be deemed cause each Company Employee to be incurred as follows: receive past service credit for such employee's service with (i) lifethe Seller, accidental death and dismemberment, short-term disability, and workers’ compensation insurance benefits, on the event giving rise to such benefits; (ii) medicalany Affiliate of the Seller, vision, dental, and prescription drug benefits, on the date the applicable services, materials or supplies were provided; and (iii) long-term disability benefitsany 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 be responsible for, the retention, transaction or similar bonuses arising on or prior to the eligibility date determined 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 long-term disability insurance carrier for the plan in which the applicable Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely Company on or prior to the benefit Closing Date. The Seller shall indemnify Buyer for any payments becoming due or liabilities arising under any Company Plan with respect to the employment or termination of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies employment of any nature whatsoever Company Employee prior to the Closing Date and for any liability arising under or Title IV of ERISA by reason of this the Company's membership in a controlled group under Section 4.03. Nothing contained herein414(b), express (c), (m) or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that (o) of the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoeverCode.
Appears in 1 contract
Samples: Stock Purchase Agreement (Centennial Communications Corp /De)
Employees and Employee Benefits. (a1) At least ten Seller will be responsible for (10i) Business Days prior the payment of all wages and other remuneration due to employees with respect to their services as employees of the Company or any Subsidiary through the Closing Date, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor all liabilities for any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Company Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately Plan arising prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurredClosing; and (iii) waive the payment of any waiting period limitation termination or evidence severance payments and the provision of insurability requirement that would otherwise be health plan continuation coverage (including all administrative and notice obligations) under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or any other applicable Law, with respect to a Transferred Employee and his any Company or her eligible dependents Subsidiary employees (including, for purposes of COBRA continuation, any qualified beneficiaries) who are terminated on or after before the ClosingClosing Date (“Terminated Employees”), except to any individuals currently receiving COBRA coverage, individuals who are within the extent COBRA election period that timely elect COBRA coverage, and those individuals who are “M&A qualified beneficiaries” (as such waiting period term is defined in Treasury Regulation Section 54.4980B-9, Q&A-4). Seller will be liable for any claims made or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closing.
(d) Effective as of the Closing, except as may otherwise be agreed between the parties incurred by Terminated Employees under the Transition Services AgreementCompany Employee Plans, and Buyer will not have any responsibility, liability or obligation to such employees, their beneficiaries or any other Person with respect to any Company Employee Plan. Seller and the Transferred Company shall make or cause to be made on behalf of all Terminated Employees shall cease active participation in the Benefit Plans. Manager shall remain liable all contributions due to be made under each Company Employee Plan for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees periods prior to the Closing Date. For purposes Additionally, Seller, at its sole cost and expense, shall take such actions as are necessary to make, or cause each Company Employee Plan to make, appropriate distributions to all the employees of the Company and its Subsidiaries in accordance with such Company Employee Plan and applicable Law. Seller and Buyer will cooperate to facilitate the transfer of the unexpended balances in the health care flexible spending accounts and dependent care flexible spending accounts of employees of the Company following Closing on a basis consistent with IRS Rev. Rul. 2002-32, provided that Buyer or the Company maintains the necessary plans set up to receive such balances.
(2) Prior to the Closing or earlier termination of this Agreement, none of the following claims Seller Parties shall be deemed transfer the employment of any of the Employees listed on Section 6.9(b) of the Disclosure Letter to be incurred as follows: (i) life, accidental death any Person other than the Company or one of its Subsidiaries. From 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 after the date hereof, Seller and Parent shall use commercially reasonable efforts to cooperate with Buyer in connection with Buyer’s negotiations with such employees for their continued employment the applicable services, materials Company or supplies were provided; and (iii) long-term disability benefits, on one of its Subsidiaries after the eligibility date determined by the long-term disability insurance carrier for the plan in which the applicable Transferred Employee participatesClosing.
(e3) This Section 4.03 shall be binding upon and inure solely Prior to the benefit Closing, the Seller Parties shall cause the transfer of each employment of the Parties Employees listed on Section 6.9(c) of the Disclosure Letter to this Agreement, and nothing in this Section 4.03, express Parent or implied, shall confer upon any a Subsidiary of Parent other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that than the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC Company or any of its Affiliates or compensation or benefits Subsidiaries.
(4) Prior to the Closing, Seller will take all reasonable action necessary, to the extent permitted, to confirm that the Company 401(k) Plan will permit the rollover of outstanding plan loans for any Company employee to a Buyer plan, if any. Prior to the Closing, Buyer will take all reasonable action necessary, to the extent permitted, to confirm that its plan, if any, will accept the rollover of any nature or kind whatsoeveroutstanding plan loans for any Company employee.
Appears in 1 contract
Samples: Stock Purchase Agreement (Star Equity Holdings, Inc.)
Employees and Employee Benefits. (a) At least ten As of the Closing, Kecy shall technically terminate all employees of the Business who then actively work for Kecy. Such technical termination of such employees does not require Kecy to provide or issue any WARN Act notices. Under the WARN Act, any person who is an employee of Kecy as of the Closing shall be considered an employee of Buyer immediately after the Closing. It is Buyer’s intention to offer employment, on an “at will” basis, to all or substantially all of such employees. Kecy shall bear any and all obligations and liabilities under the WARN Act, if any, regarding such employees prior to the Closing, and Buyer shall bear any and all obligations and liabilities under the WARN Act, if any, regarding such employees after the Closing, including, without limitation, obligations and liabilities resulting from any employment losses occurring after the Closing.
(10b) Business Days Kecy 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, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with Kecy at any time on or prior to the Closing Date and Kecy shall pay all such amounts to all entitled persons on or prior to the Closing Date, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shallKecy shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health, accident or shall cause its Affiliates todisability benefits brought by or in respect of current or former employees, give each Transferred Employee full credit for officers, directors, independent contractors or consultants of the Business or the spouses, dependents or beneficiaries thereof, so long as such Transferred Employee’s service with Manager claims relate to events occurring on or its Affiliates (and predecessors, as applicable) prior to the Closing Date and such employees, officers, directors, independent contractors or consultants is eligible under the applicable benefit plan. Kecy also shall remain solely responsible for eligibility and vesting purposes and for purposes all worker's compensation claims of vacation accrual and severance benefit determinations under any benefit plans established current or maintained by CLNC former employees, officers, directors, independent contractors or its Affiliates in consultants of the Business which the Transferred Employee participates following the Closing relate to the same extent recognized by CLNC events occurring on or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; providedDate. Kecy shall pay, howeveror cause to be paid, that all such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) amounts to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees appropriate persons as and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closingwhen due.
(d) Effective as soon as practicable following the Closing Date, Kecy, or any applicable Affiliate, shall effect a transfer of assets and liabilities from the defined contribution retirement plan that it maintains, to the defined contribution retirement plan maintained by Buyer, with respect to those employees of the ClosingBusiness who become employed by Buyer, except as may otherwise or an Affiliate of Buyer, in connection with the transactions contemplated by this Agreement. Any such transfer shall be agreed between in an amount sufficient to satisfy Section 414(l) of the parties Code.
(e) Each employee of the Business who becomes employed by Buyer in connection with the transaction shall be given service credit for the purpose of eligibility under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits group health plan and eligibility and vesting only under the Benefit Plans that are incurred by the Transferred Employees defined contribution retirement plan for his or her period of service with Kecy prior to the Closing Date. For purposes of this Agreement; provided, the following claims shall be deemed to be incurred as followshowever, that: (i) lifesuch credit shall be given pursuant to payroll or plan records, accidental death at the election of Buyer, in its sole and dismemberment, short-term disability, absolute discretion; 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 Transferred Employee participates.
(e) This Section 4.03 such service crediting shall be binding upon permitted and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit consistent with Buyer's defined contribution retirement plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
Appears in 1 contract
Samples: Asset Purchase Agreement (ARC Group Worldwide, Inc.)
Employees and Employee Benefits. (a) At least ten (10) Business Days prior to the Closing Date, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each of Guaranty agrees that the employees of Manager and/or any HFB or Hemet who are retained by Guaranty after the consummation of the Bank Merger will be provided with benefits under employee benefit plans (other than plans involving the issuance of securities of HFB or TI) which in the aggregate are substantially comparable to those currently provided by Guaranty to its Affiliates whocurrent employees. Guaranty will cause each employee benefit plan of Guaranty in which employees of HFB or Hemet are eligible to participate to take into account for purposes of eligibility and vesting thereunder the service of such employees with HFB or Hemet as if such service were with Guaranty, to the same extent that such service was credited under a comparable plan of HFB or Hemet. Guaranty will honor in accordance with their terms all employee benefit obligations to current and former employees and directors of HFB and Hemet accrued as of the date Effective Time of this Agreement, are primarily engaged in providing services the Holding Company Merger. HFB and its ERISA Affiliates shall take any actions necessary (to the extent permissible under the Management AgreementPlans and applicable laws and regulations) or reasonably requested by Guaranty to cause, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment termination of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date all of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, Plans (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than as the base salary or hourly wages provided by Manager as term is defined in Section 4.21 of the date of this Agreement and previously provided to CLNCAgreement) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC HFB or any ERISA Affiliate which cover employees and directors of HFB and its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participatedERISA Affiliates; provided, however, that such service HFB 401(k) Plan shall not be recognized (iterminated but shall be merged with the Guaranty 401(k) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate Plan as soon as administratively practicable after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closing.
(d) Effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees prior to the Closing Date. For purposes Guaranty also agrees that any pre-existing condition limitation or exclusion in its health plans shall not apply to the employees of this AgreementHFB or Hemet who are retained by Guaranty after the consummation of the Bank Merger or their spouses and dependents who are covered under similar health plans of HFB, the following claims shall be deemed to be incurred as follows: (i) life, accidental death Hemet and dismemberment, short-term disability, and workers’ compensation insurance benefits, its ERISA Affiliates on the event giving rise Closing Date and who change coverage to Guaranty's health plans at the time such benefits; (ii) medical, vision, dental, and prescription drug benefits, on employees are first given 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 option to enroll in which the applicable Transferred Employee participatesGuaranty's health plans.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
Appears in 1 contract
Samples: Merger Agreement (Hf Bancorp Inc)
Employees and Employee Benefits. (a) At Except for certain headquarters employees of Xxxxx Fargo set forth on a list to be provided by Newco to Xxxxx Fargo at least ten (10) Business Days five days prior to the Closing Date, CLNC shall, or Newco shall cause an Affiliate of CLNC to, offer to each of the employees of Manager and/or any of its Affiliates who, 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 of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “"Active Employees”) a position "). Each such offer of employment or the opportunity (i) to each non-bargaining unit employee shall be on terms and conditions to be employed determined by CLNC Newco in its sole discretion and (or an Affiliate thereofii) 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), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which for such compensation is paid does not need employee immediately prior to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or other terms and conditions to be determined by Newco in its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Datesole discretion. Those All Active Employees who accept Newco's offer of employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC by the Closing Date shall hereafter be referred to as “deemed "Transferred Employees.”
(b) During the period commencing " 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 on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of have a right to re-employment with CLNC Xxxxx Fargo or an Affiliate any of CLNC)its Subsidiaries, CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided on terms and conditions to be determined by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, Newco in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participatedsole 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 (6) months after the Closing Date.
(b) With respect to each Transferred Employee, service with Xxxxx Fargo or any of its Affiliates shall not be recognized (i) counted for purposes of determining any period of eligibility to participate or to vest in benefits accrual under any defined Newco's benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents extent such service was counted under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents similar type of WF Benefit Plan under the health plans in which such Transferred Employee participated was covered immediately prior to the Closing during Date, except that such service with Xxxxx Fargo shall not be counted for purposes of Newco's severance policies to the extent that Transferred Employees have received severance benefits 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 plan calendar year prior to preceding the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums Date under health plans maintained by CLNC or its Affiliates the same type of WF Benefit Plan in which such Transferred Employee is eligible to participate after participating as of the Closing in the same plan year Date. With respect to each Transferred Employee, Newco's group health plans shall not exclude coverage for pre-existing conditions that were not excluded under similar WF Benefit Plans in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or is participating as of the Closing Date.
(c) Newco agrees that, within ten business days after the Closingdate hereof, except 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 extent transactions set forth herein. Newco also agrees that it will bargain in good faith with representatives of each such waiting period or requirement would have been applicable under a comparable Benefit Plan in which union regarding the Transferred Employee participated immediately prior to the Closingemployment terms and conditions of each bargaining unit employee.
(d) Effective As of the Closing Date, Newco shall assume the obligations and 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 Closing, except as may otherwise be agreed between the parties plan administrator under the Transition Services Agreement, the Transferred Employees shall cease active participation both policies. At a time (but in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees any event prior to the Closing Date. For purposes ) 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 this Agreement, its severance policies described above and shall clearly indicate that the following claims terms of such severance policies shall be deemed to be incurred as follows: (i) life, accidental death govern any terminations of employment on account of the transactions contemplated hereby 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 Transferred Employee participatessupersede any prior communications with respect thereto.
(e) This Section 4.03 Newco shall be binding upon assume the liability as of the Closing Date for the accrued and inure solely unpaid vacation and sick days with respect to the benefit employees of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC Xxxxx Fargo or any of its Affiliates or compensation or benefits Subsidiaries.
(f) Newco shall promptly reimburse Xxxxx Fargo for the liability of Xxxxx Fargo and its Subsidiaries for claims incurred and unpaid prior to the Closing Date under the WF Employee Benefit Plans which constitute welfare benefit plans (including the related portion of any nature retrospective insurance premiums, but excluding any WF Casualty and Employee Claims) to the extent 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 kind whatsoeverreserves (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 retention or reserves under the WF Employee Benefit Plans which constitute welfare benefit plans to the extent allocable to Xxxxx Fargo and its Subsidiaries.
(g) As soon as practicable after the Closing Date, the account balances as of the Closing Date of the Transferred Employees held in the Xxxx- Xxxxxx Security Corporation Investment Plan (the "401(k) Plan"), as 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 ("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 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 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. In consideration of and effective upon such transfer, the Newco Plan shall assume all liabilities to Transferred Employees under the 401(k) Plan to the extent of the amount of assets transferred by the 401(k) Plan to the Newco Plan. Each of 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 the 401(k) Plan, the same to be retained or assumed by Xxxx- Xxxxxx.
(h) Xxxxx Fargo and Xxxx-Xxxxxx, on one hand, and Newco, on the other hand, shall each promptly and reasonably cooperate in good faith with each other to ensure that their respective obligations with respect to employee benefit plans are timely and properly satisfied, including sharing information regarding employees and coordinating communications with employees.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten 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 (10or is attributable to expenses properly incurred by that employee) Business Days 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 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, CLNC shall, or the Purchaser shall cause an Affiliate of CLNC to, offer to each identify which of the employees Buffalo Employees it intends to make offers of Manager and/or employment. If any of its Affiliates who, as the Buffalo Employees who receive offers of employment from the Purchaser accepts employment with the Purchaser (those of the date Buffalo Employees who receive offers of this Agreement, are primarily engaged in providing services under employment from the Management Agreement, whose names are set forth on Section 4.03(a) Purchaser and agree to accept such offers of the Disclosure Schedules (employment being hereinafter referred to as the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation OpportunityBuffalo 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 such 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 be effective employees employed by the Sellers as of the Closing DateDate who receive offers of employment from Purchaser or Worthington Warehouse, as appropriate, and Manager whose employment is terminated by Purchaser or its AffiliateWorthington Warehouse, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City timeappropriate, on or before the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate first anniversary of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on in an amount equal to the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, lesser of: (i) their respective Total Target Direct Compensation Opportunity the total amount of any such severance benefits paid by Purchaser or Worthington Warehouse, as appropriate, to any such employees within such one (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC1) year period; and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that arethe aggregate amount of the Buffalo New Hire Severance. Payment to Purchaser or Worthington Warehouse, in as appropriate, of the aggregateamount Purchaser or Worthington Warehouse, substantially similar as appropriate, is entitled to those provided to be reimbursed for by the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee preceding sentence shall be required to relocate more than twenty-five made by Sellers within ten (2510) miles from such Transferred Employee’s employment location as days following receipt by Sellers of reasonably satisfactory evidence of the Closingpayment 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) CLNC shallSellers shall be responsible for complying with the provisions of Section 4980B of the Code and Sections 601 through 608, inclusive, of ERISA (such Code and ERISA provisions hereafter referred to as “COBRA”) pertaining to notice to be provided to such employees of the Buffalo Facility or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager other employees of Sellers who do not become employees of Purchaser or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) Worthington Warehouse to the extent that COBRA notices are required to be provided to such recognition would employees as a result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to transactions contemplated by this Agreement. In addition, Sellers shall provide health care continuation coverage required by COBRA for employees employed at the Closing in satisfying any deductibles, co-payments Buffalo Facility or out-of-pocket maximums under health plans other employees of Sellers who do not become employees of Purchaser or Worthington Warehouse through an Employee Plan or Employee Plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in 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 same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive duration of any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the ClosingCOBRA continuation coverage period.
(d) Effective as Although it is anticipated that Purchaser will make offers of employment to most employees presently employed at the ClosingCleveland Facility, except as may otherwise be agreed between the parties Purchaser is under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plansno obligation to employ any personnel presently employed by Sellers. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees prior Prior to the Closing Date, Purchaser may offer employment to such employees presently employed by the Business as Purchaser in its sole discretion shall determine. For purposes Subject to any obligation that Purchaser may have to recognize the collective bargaining agent of this Agreementthe employees employed by the Business at the Cleveland Facility, Purchaser shall have the following claims 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. All such offers shall be deemed on terms established by Purchaser and shall be contingent upon employment commencing with Purchaser only following the Closing Date. Sellers agree not to be incurred as follows: (i) lifediscourage any Persons who are offered employment by Purchaser from accepting employment with Purchaser. Any prior employment by Sellers of such employees shall not affect entitlement to, accidental death and dismembermentor the amount of, short-term disability, and workers’ salary or other compensation insurance or benefits, on the event giving rise current or deferred, which Purchaser may make available 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 Transferred Employee participatesits employees.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gibraltar Industries, Inc.)
Employees and Employee Benefits. (a) At least ten (10) Business Days prior to the Closing Date, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each It is contemplated that all of the employees currently providing services to Parascript, whether as employees of Manager and/or any Parascript or the Member Representative, will become employees of AHC or its Affiliates whoprofessional employer organization consistent with past practices of AHC and its professional employer organization. Prior to Closing, as the parties will formally document their agreement regarding such employees, which agreement will address salaries and benefits, retirement and savings plans and general employee provisions.
(b) AHC shall assume sponsorship of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Parascript Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be Plans effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, Participation in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During Parascript Employee Plans by such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closingemployees will continue uninterrupted.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, As soon as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate administratively feasible following the Closing; , AHC shall merge the AHC 401(k) Retirement Savings Plan, (iithe “AHC 401(k) honor any deductible, co-payment Plan”) and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to Parascript 401(k) Plan (the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii“Parascript 401(k) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the ClosingPlan”).
(d) Effective As soon as of administratively feasible following the Closing, except as may otherwise AHC shall merge the AHC Flexible Benefits Plan (the “AHC Cafeteria Plan”) and the Parascript Management, Inc. Flexible Benefits Plan (the “Parascript Cafeteria Plan”). Participant elections made for the plan year that includes the Closing Date (the “Plan Year”) will continue to be agreed between effective on and after the parties under Closing Date. Participant reimbursements made during the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees Plan Year prior to the Closing Date. For purposes of this Agreement, the following claims shall Date will 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 Transferred Employee participatescarried forward.
(e) This Section 4.03 shall be binding upon AHC will take all actions necessary to continue to provide continuation coverage, as required under COBRA, following the Closing Date to any former employee that provided services to Parascript (or dependent of any employee or former employee of Parascript) whose COBRA qualifying event occurred on or before the Closing Date at a time when the individual was covered by such Parascript Employee Plan. Parascript will provide AHC with a list of all Persons currently or formerly associated with Parascript who have elected continuation coverage under COBRA under Parascript’s health plan, and inure solely who are still in their available continuation period, as well as a list of all such Persons whose qualifying event has occurred before the Closing, and who are in their COBRA election period, but who have not yet made such election. Parascript will provide the foregoing information to AHC at least seven (7) days prior to Closing and will update such information on the Closing Date, if necessary.
(f) AHC and Parascript will cooperate prior to the benefit of each of Effective Time to develop and implement appropriate incentive arrangements, including, without limitation, non-competition provisions standard for AHC for similarly situated employees, for Parascript employees who will continue to be employed by Parascript or to be employed by AHC after the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoeverClosing Date.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten Prior to the Closing Date, Newco shall extend offers of at-will employment to Employees of the Business, and offers to engage those Personnel of the Business, exclusive of Employees, for certain consultant or independent contractor services, on such terms and conditions as set forth as Exhibit J (10“Offer Letters”). The persons listed on Schedule 5.04(a) hereto shall be retained by Newco for the positions and for such period of time after the Closing Date as are listed on such schedule.
(b) Onewire shall be solely responsible for, and Recruiter and Newco shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former Personnel 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 Onewire at any time on or prior to the Closing Date and Onewire shall pay all such amounts to all entitled persons as and when due.
(c) Onewire 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 Personnel of the Business Days or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date, CLNC shall, . Onewire also shall remain solely responsible for all worker’s compensation claims of any current or shall cause an Affiliate of CLNC to, offer to each former Personnel of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth Business which relate to events occurring on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity prior to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC Onewire shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shallpay, or shall cause an Affiliate of CLNC toto be paid, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided all such amounts to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location appropriate persons as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closingwhen due.
(d) Effective as of the Closing, except soon as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees prior to practicable following the Closing Date. For purposes , Onewire, or any applicable Affiliate, shall effect a transfer of assets and liabilities (including outstanding loans) from the defined contribution retirement plan that it maintains, to the defined contribution retirement plan maintained by Newco, with respect to those eligible Personnel of the Business who become employed by Newco, or an Affiliate of Newco, in connection with the transactions contemplated by this Agreement, the following claims . Any such transfer shall be deemed in an amount sufficient to be incurred as follows: (isatisfy Section 414(l) 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, Code. Upon the transfer of assets and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit liabilities into Newco’s plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 all transferred account balances from Onewire’s plan shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoeverbecome fully vested.
Appears in 1 contract
Samples: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Employees and Employee Benefits. (a) At least ten (10) Business Days prior to Commencing on the Closing Date, CLNC shall, or the Seller shall cause an Affiliate of CLNC to, offer to each terminate all employees of the employees of Manager and/or any Business who are actively at work on the Closing Date, and the Purchaser or one of its Affiliates whoat the Closing shall offer employment on an at-will basis, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate to all employees who are employed by the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates Seller immediately prior to the Closing under (the individuals who accept Purchaser’s or such Affiliate’s offer of employment are collectively referred to herein as the “Hired Personnel”), in each case (i) at approximately the same location (and Purchaser and its Affiliates agree not to move Hired Personnel to a comparable Benefit Plan 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 Transferred 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 participatedBenefit 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 not be recognized permitted and consistent with the Purchaser’s or such Affiliate’s defined contribution retirement plan.
(ib) Except for purposes the coverage of (and any ongoing benefits accrual under provided under) the Assumed Plans, the Seller shall be solely responsible, and the Purchaser shall have no obligations whatsoever for, any defined benefit 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 plans or retiree health profit sharing benefits or welfare plan or arrangement or (ii) severance pay for any period relating to the extent that such recognition would result in a duplication of coverage service with the Seller at any time on or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during Date and the portion of the plan year Seller Parties shall pay all such amounts to all entitled persons on or prior to the Closing Date or as soon as reasonably practicable thereafter in satisfying accordance with the Seller’s regular pay practices. The Purchaser shall be solely responsible, and the Seller shall have no obligations whatsoever for, any deductiblescompensation or other amounts payable to any Hired Personnel, coindependent contractor or consultant of the Business, including hourly pay, commission, bonus, salary, fringe, pension or profit sharing benefits or severance pay for any post-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible Closing period relating to participate after the service with the Purchaser following the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the ClosingDate.
(dc) Effective as Except for the coverage of (and any ongoing benefits provided under) the Assumed Plans, the 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, officers, directors, independent contractors or consultants of the ClosingBusiness or the spouses, except as may otherwise be agreed between the parties under the Transition Services Agreementdependents or beneficiaries thereof, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible which claims for benefits under the Benefit Plans that are incurred by the Transferred Employees relate to events occurring on or prior to the Closing Date. For purposes of this Agreement, the following claims The Seller also shall be deemed to be incurred as follows: (i) life, accidental death and dismemberment, short-term disability, and remain solely responsible for all workers’ compensation insurance 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. 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, on 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 event giving rise to such benefitsextent any duplication of benefits results; (ii) medicalprovided, visionfurther, dental, and prescription drug benefits, on that the date the applicable services, materials Purchaser’s recognition of accrual of vacation 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 Transferred Employee participatesother paid time off shall not exceed five weeks of accrued vacation or other paid time off.
(e) This Section 4.03 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 binding upon transferred to and inure solely to assumed by the benefit of each 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 of the Parties to this Agreement, and nothing Hired Personnel in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies excess of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoeverfive weeks.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten (10) Business Days prior to the Closing Date, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(bi) During the period commencing on the Closing Date Effective Time and ending on the date which is twelve (12) months from the Closing December 31, 2016 (or if earlier, the date of the Transferred Employeeemployee’s termination of employment with CLNC Parent or an Affiliate any of CLNCits subsidiaries), CLNC shall, or Parent shall cause an Affiliate the Surviving Corporation to provide each employee of CLNC tothe Company who remains employed by the Surviving Corporation after the Closing (each such employee, maintaina Company Continuing Employee), for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include with base salary or hourly wages which are no not less than the base salary or hourly wages provided by Manager as of the Company on the date of this Agreement Agreement. During the period commencing on the Effective Time and previously provided ending on December 31, 2016 (or if earlier, the date of the employee’s termination of employment with Buyer or any of its subsidiaries), Parent shall cause the Surviving Corporation to CLNCprovide the Company Continuing Employees with employee health and welfare benefits (but not cash or equity incentive compensation) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar comparable to those the employee health and welfare benefits (i) provided by the Company on the date of this Agreement or (ii) provided by Parent and its subsidiaries to its similarly situated employees on the date of this Agreement; provided, however, the health and welfare benefits provided to the Company Continuing Employees immediately prior subject to a collective bargaining agreement shall be subject to the Closingterms of that agreement or any amendment thereof. During such twelveThe Company Continuing Employees covered by this provision will remain at-month period following will employees, subject to the Closingterms of any applicable collective bargaining agreement.
(ii) With respect to any “employee benefit plan” as defined in Section 3(3) of ERISA or other similar plan, no Transferred program or arrangement maintained by Parent or any of its subsidiaries, excluding both any defined benefit pension plans maintained by Parent or any of its subsidiaries and any equity compensation arrangements maintained by Parent or any of its subsidiaries (collectively, Parent Benefit Plans) in which any Company Continuing Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location will participate effective as of the Closing.
(c) CLNC Effective Time, Parent shall, or shall cause its Affiliates the Surviving Corporation to, give each Transferred Employee full credit for such Transferred Employee’s recognize all service of the Company Continuing Employees with Manager the Company or any of its Affiliates (and predecessorssubsidiaries, as applicable) prior to the Closing case may be, as if such service were with Parent, for eligibility and vesting purposes and for all purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable such Parent Benefit Plan in which the Transferred Employee participated(including, but not limited to, eligibility, vesting and level of benefits); provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that (A) such recognition would result in a duplication of coverage benefits or benefits with respect (B) such service was not recognized under the corresponding Plan.
(iii) Parent shall use reasonable best efforts to the same period of service. CLNC shallwaive, or shall cause its Affiliates toto be waived, any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any Parent Benefit Plan in which the Company Continuing Employees (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be dependents) are eligible to participate following from and after the Closing; (ii) honor Effective Time, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable plan of the Company in which the Company Continuing Employees participated. If a Company Continuing Employee commences participation in any deductiblehealth benefit plan of Parent or any of its subsidiaries after the commencement of a calendar year, Parent shall cause such plan to recognize the dollar amount of all co-payment payments, deductibles and out-of-pocket maximums similar expenses incurred by a Transferred such Company Continuing Employee (and his or her eligible dependents dependents) during such calendar year for purposes of satisfying such calendar year’s deductible and co-payment limitations under the health relevant welfare benefit plans in which such Transferred Company Continuing Employee participated immediately prior (and dependents) commences participation.
(iv) Following the Effective Time, with respect to outstanding incentive compensation accrued by the Closing during Company for the portion fiscal year ending March 31, 2016 and disclosed to Parent, Parent shall cause each Company Continuing Employee to continue to be eligible to receive payment of such incentive compensation under the applicable plan for such fiscal year prior to in accordance with the Closing terms and conditions of such plan as in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred effect on the Effective Time. In the event that the employment of a Company Continuing Employee is eligible to participate after terminated by the Closing Company without “cause” (as such term is defined in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iiiCompany’s 2012 Incentive Compensation Plan) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the ClosingEffective Time, except but prior to the payment of such incentive compensation, such Company Continuing Employee shall remain entitled to receive such incentive compensation (which shall be pro-rated to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately termination occurs prior to March 31, 2016) based on actual results for such fiscal year. Any pro ration shall be calculated by multiplying such Company Continuing Employee’s bonus entitlement for the Closingfull fiscal year ending March 31, 2016 had such termination not otherwise occurred by a fraction, the numerator of which is the number of days that has elapsed between the beginning of such fiscal year and the applicable termination date, and the denominator of which is the total number of days in such fiscal year. Incentive compensation paid pursuant to this Section 6.2(c)(iv) shall be paid at the same time and in the same form as such incentive compensation is paid in the ordinary course of business to all other participants under the applicable plan, without regard to any otherwise applicable continued service requirement.
(d) Effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred 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 Transferred Employee participates.
(ev) This Section 4.03 6.2(c) shall be binding upon and inure solely to the benefit of each of the Parties parties to this Agreement, and nothing in this Section 4.036.2(c), express or implied, shall confer upon any other Person person any rights or remedies of any nature whatsoever under or by reason of this Section 4.036.2(c). Nothing contained herein, express or implied, implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangementarrangement or (ii) shall alter or limit the ability of the Surviving Corporation, including Parent or any Benefit Planof their respective affiliates to amend, modify or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The Parties parties hereto acknowledge and agree that the terms set forth in this Section 4.03 6.2(c) shall not create any right in any Transferred Employee Company employee or any other Person person to any continued employment with CLNC the Surviving Corporation, Parent or any of its Affiliates their respective subsidiaries or compensation or benefits of any nature or kind whatsoever.
Appears in 1 contract
Employees and Employee Benefits. (a) At least Prior to the Closing Date, Seller Parent shall cause Seller Bank to transfer the employment of any Bank Employee who, as of the date immediately prior to the Closing Date, is on an approved leave of absence and receiving long-term disability benefits pursuant to any of Seller Parent, Seller or Seller Bank’s long-term disability insurance policies to an entity other than Seller Bank.
(b) For a period of one year after the Effective Time (the “Continuation Period”), Purchaser Parent shall provide, or cause its Subsidiaries to provide to each Bank Employee who continues employment with Purchaser Parent or any of its Subsidiaries following the Effective Time (each, a “Continuing Employee”), with (1) base salary or wages, as applicable, and target annual incentive opportunities that are substantially comparable in the aggregate to those provided to each such employee as of immediately prior to the Closing Date and (2) retirement and welfare benefits that are substantially comparable in the aggregate to those provided to similarly situated employees of Purchaser Parent or any of its Subsidiaries.
(c) During the Continuation Period, Purchaser Parent shall (1) comply with the terms of the Employee Retention Plans in effect on the Effective Time, and (2) except with respect to employees subject to Employee Retention Plans in effect on the Effective Time, provide, or cause its Subsidiaries to provide, each Continuing Employee who is (A) terminated without cause by Purchaser Parent or its Subsidiaries or (B) resigns for Good Reason, with severance or termination compensation and benefits that are no less favorable than the severance or termination compensation and benefits provided to similarly situated employees of Purchaser Parent or the applicable Subsidiary (taking into account service with Seller Parent or its Subsidiaries prior to the Effective Time and service with Purchaser Parent and its Affiliates after the Effective Time); provided that such payments may be conditioned on execution of a release of claims in a form satisfactory to Purchaser Parent. Notwithstanding anything to the contrary contained herein, if as a result of any Continuing Employee ceasing to be employed by Purchaser Parent prior to the first anniversary of the Closing Date or otherwise, the amounts accrued on the Determination Date Balance Sheet for amounts payable pursuant to the Employee Retention Plans on the first anniversary of the Closing Date exceeds the amount actually paid by Purchaser Bank pursuant to the Employee Retention Plans in respect of payments due on the first anniversary of Closing (such excess, the “Excess Retention Amount”), Purchaser Bank shall reimburse Seller Parent in an amount equal to the Excess Retention Amount no later than the fourteen (14) month anniversary of the Closing Date. On or prior to the fourteen (14) month anniversary of the Closing Date, Purchaser Bank shall provide Seller Parent a schedule containing the names of all Continuing Employees, the payments made by Purchaser Bank to such Continuing Employees following the Closing Date pursuant to the Employee Retention Plans and the Excess Retention Amount, if any.
(d) Section 4.10(d) of the Seller Disclosure Schedule sets forth a list of Employee Retention Plans. Except with respect to the Employee Retention Plans, as of the Closing Date, Seller Parent shall cause Seller Bank to terminate the participation of each Bank Employee in each Seller Employee Plan and in no event shall any Bank Employee be entitled to accrue any benefits under such Seller Employee Plan, other than the Employee Retention Plans, with respect to services rendered or compensation paid on or after the Closing. Seller Parent shall update Section 4.10(d) of the Seller Disclosure Schedule to reflect any changes to the list of Employee Retention Plans occurring in the ordinary course of business and in accordance with Section 4.01(b) after the date of this Agreement, and shall deliver an updated copy of Section 4.10(d) of the Seller Disclosure Schedule not later than ten (10) calendar days prior to the Closing Date. The parties hereto agree that the only Liabilities or obligations with respect to any Seller Employee Plan that Seller Bank shall have for periods on and after the Closing shall be with respect to the Employee Retention Plans.
(e) If the Closing Date occurs prior to the ordinary course payment date of 2019 annual performance bonuses, the payments under the Seller Parent Executive Long Term Incentive Plan (“ELTIP”) or any other monthly or quarterly bonus plans, Purchaser Parent or Purchaser Bank shall pay to each Continuing Employee that is eligible to receive a 2019 annual performance bonus payment, an ELTIP payment or any other monthly or quarterly bonus, under the terms of the applicable Seller Employee Plan, and who remains employed on the applicable payment date, a 2019 annual performance bonus, ELTIP payment or any other monthly or quarterly bonus, that is at least equal to the amount set forth beside such employee’s name on a schedule provided to Purchaser Parent by Seller Parent not less than two (2) Business Days prior to the Closing Date, CLNC shall, Date setting forth the name and the 2019 annual performance bonus and/or the ELTIP payment or shall cause an Affiliate any other monthly or quarterly bonus payment amount for each Bank Employee (reduced by the amount of CLNC to, offer to each of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity Taxes required to be employed withheld under applicable Law with respect to such payments, which amounts, so withheld, shall be duly and timely deposited with the applicable Governmental Authority by CLNC (or an Affiliate thereofPurchaser Parent), on substantially similar economic terms with regard to provided, however, that (i) Seller Bank has accrued the sum aggregate amounts of such payment amounts and (ii) the amount of each such Transferred Continuing Employee’s current base salary, target cash 2019 annual performance bonus and/or ELTIP payment or any other monthly or quarterly bonus was determined in the ordinary course consistent with past practice in consultation with Purchaser Parent.
(f) With respect to any benefit plans sponsored by Purchaser Parent and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate Subsidiaries (such economic termsplans, the “Total Target Direct Compensation OpportunityPurchaser Parent Plans”)) in which any Continuing Employee becomes eligible to participate on or after the Effective Time, with such employment to be effective as of Purchaser Parent or the Closing Date, and Manager or its Affiliateapplicable Subsidiaries, as applicable, shall terminate use commercially reasonable efforts to (1) waive all preexisting conditions, actively at work requirements, exclusion and waiting periods with respect to participation and coverage requirements under the employment of each such Employee effective as of 11:59 p.m.Purchaser Parent Plans to the extent they were inapplicable to, New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlierwere satisfied under, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, Seller Employee Plans; (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i2) for purposes of benefits accrual eligibility, vesting and benefit level, recognize the service that was credited to each such Continuing Employee under any defined benefit pension plans or retiree health or welfare plan or arrangement or the Seller Employee Plans prior to the Effective Time, under the Purchaser Parent Plans (ii) except to the extent that such recognition it would result in a duplication of coverage or benefits benefits), as if such service were with Purchaser Parent and its Subsidiaries (provided that the service crediting in this clause (2) shall not apply with respect to the same period any defined benefit plans or for purposes of service. CLNC shall, or shall qualifying for subsidized early retirement benefits); and (3) cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment coinsurance and out-of-pocket maximums expenses incurred by a Transferred any such Continuing Employee and his or her eligible covered dependents under the health plans in which such Transferred Seller Employee participated immediately prior to the Closing Plans during the portion of the plan year prior to ending on the Closing in Date to be taken into account for purposes of satisfying any deductiblesdeductible, co-payments or coinsurance and maximum out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in requirements for the same plan year in which such deductiblesunder the applicable Purchaser Parent Plan.
(g) Prior to the Effective Time, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period permitted by applicable Law and the terms of the applicable plan or requirement would have been applicable under a comparable Benefit arrangement, Seller Bank shall cause the Seller Bank 401(k) Plan in which (the Transferred Employee participated “Bank 401(k) Plan”) to be terminated effective immediately prior to the ClosingEffective Time. Seller Bank shall provide Purchaser Parent with evidence that such plan has been terminated (the form and substance of which shall be subject to review and approval by Purchaser Parent) not later than the day immediately preceding the Effective Time. Purchaser Parent or its Subsidiaries shall permit each Continuing Employee who has received an eligible rollover distribution (as defined in Section 402(c)(4) of the Code) from a Seller Employee Plan that is qualified under Section 401(a) of the Code, if any, to roll such eligible rollover distribution, including any associated participant loans, as part of any lump sum distribution into an account under a Purchaser Parent Plan that is qualified under 401(a) of the Code.
(dh) Effective as of the ClosingClosing Date, except as may Seller Bank shall transfer or dividend to Seller Parent or its Subsidiaries (other than Seller Bank), or Seller Parent shall otherwise be agreed between retain (1) the parties non-qualified agreements and arrangements, and the BOLI plan and the key executive life insurance plan set forth on Section 4.10(h) of the Seller Disclosure Schedule and (2) the Liability for all obligations (whether or not vested) which have accrued under the Transition Services Agreementnon-qualified agreements and arrangements, and the Transferred Employees BOLI plan and the key executive life insurance plan set forth on Section 4.10(h) of the Seller Disclosure Schedule with respect to any Bank Employee, and Seller Bank shall cease active participation in the Benefit Plansnot retain any Liability for such obligations. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees prior Prior to the Closing Date. For purposes , Seller Bank shall transfer to Seller Parent or any of this Agreementits Affiliates (or, if applicable, Seller Parent or any of its Affiliates shall retain) any assets associated with such agreements, arrangements, and plans, including, without limitation, the following claims insurance policies related to such BOLI plan and effective upon the Closing Date, Seller Bank shall be deemed to be incurred as follows: withdraw from the Seller Parent key executive life insurance plan.
(i) lifeEffective as of the Closing Date, accidental death Seller Parent or its Subsidiaries shall cause any outstanding awards held by Continuing Employees pursuant to Seller Bank’s Phantom Stock Plan to become fully vested and dismembermentany such amounts under such Phantom Stock Plan, short-term disabilityif any, 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 shall be payable by Seller Parent or supplies were provided; and (iii) long-term disability benefits, on the eligibility date determined by the long-term disability insurance carrier its Subsidiaries. Any outstanding Phantom Stock Plan awards for the plan in which the applicable Transferred Employee participatesexercise price is greater than the Fair Market Value of the underlying Phantom Shares (each as defined in the Phantom Stock Plan) as of the Closing Date shall be cancelled without consideration in accordance with the terms of the Phantom Stock Plan.
(ej) This Section 4.03 shall be binding upon and inure solely Prior to the benefit of each Closing Date, Purchaser Parent or Purchaser Bank shall take all actions required to assume the Seller Employee Plans set forth on Section 4.10 of the Parties to this Agreement, Seller Disclosure Schedule.
(k) Purchaser Parent and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto Seller Parent acknowledge and agree that the terms set forth all provisions contained in this Section 4.03 4.10 are included for the sole benefit of Purchaser Parent and Seller Parent and nothing contained herein shall not (1) be construed as an amendment to any Seller Employee Plan or other employee benefit plan or program, (2) create any right employee benefit plan or program or any third-party beneficiary or other rights in any Transferred Employee other person, including any Bank Employee, other employee or former employee of any of Purchaser Parent or Seller Parent or their respective Affiliates, or any other Person dependent or beneficiary or collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment and/or benefits that may be provided to any continued employment with CLNC Continuing Employee by Purchaser Parent or any of its Affiliates or compensation under any Purchaser Parent Plan or benefits (3) otherwise obligate Purchaser Parent or any of its Affiliates to maintain any particular employee benefit plan or retain the employment of any nature or kind whatsoeverparticular employee (including the Bank Employees) following the Effective Time. Purchaser Parent and Seller Parent further acknowledge and agree that Seller Parent shall cause Seller Bank to provide to Purchaser Parent all employee books and records relating to Continuing Employees.
Appears in 1 contract
Samples: Merger Agreement (Cit Group Inc)
Employees and Employee Benefits. (a) At least ten Commencing on the Closing Date, Seller shall terminate all employees of the Business who are actively at work on the Closing Date, and Buyer shall offer employment, on an “at will” basis, to a sufficient number of employees to avoid any and all obligations and liability under the WARN Act resulting from employment losses pursuant to this Section 6.01.
(10b) Business Days 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, 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 the Closing Date, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each of the employees of Manager and/or unless any of its Affiliates who, as of the date of this Agreement, such amounts are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect reflected on the date of this Agreementfinal Closing Working Capital Statement, provided that the form in which case Buyer is responsible for such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closingamounts.
(c) CLNC shallSeller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or shall cause its Affiliates todisability benefits brought by or in respect of current or former employees, give each Transferred Employee full credit for such Transferred Employee’s service with Manager officers, directors, independent contractors or its Affiliates (and predecessorsconsultants of the Business or the spouses, as applicable) dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date. Seller also shall remain solely responsible for eligibility and vesting purposes and for purposes all worker’s compensation claims of vacation accrual and severance benefit determinations under any benefit plans established current or maintained by CLNC former employees, officers, directors, independent contractors or its Affiliates in consultants of the Business which the Transferred Employee participates following the Closing relate to the same extent recognized by CLNC events occurring on or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; providedDate. Seller shall pay, howeveror cause to be paid, that all such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) amounts to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees appropriate persons as and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closingwhen due.
(d) Effective as soon as practicable following the Closing Date, Seller, or any applicable Affiliate, shall, if legally able to do so, effect a transfer of assets and liabilities (including outstanding loans) from the defined contribution retirement plan that it maintains, to the defined contribution retirement plan maintained by Xxxxx, with respect to those employees of the ClosingBusiness who become employed by Xxxxx, except 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 414(l) of the Code. Upon the transfer of assets and liabilities into Xxxxx’s plan, all transferred account balances from Seller’s plan shall become fully vested.
(e) Each employee of the Business who becomes employed by Xxxxx 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 may otherwise are provided to similarly situated employees of Buyer.
(f) Each employee of the Business who becomes employed by Xxxxx in connection with the transaction shall be agreed between given service credit for the parties purpose of eligibility under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits group health plan and eligibility and vesting only under the Benefit Plans that are incurred by defined contribution retirement plan for his or her period of service with the Transferred Employees Seller prior to the Closing Date. For purposes of this Agreement; provided, the following claims shall be deemed to be incurred as follows: however, that (i) lifesuch credit shall be given pursuant to payroll or plan records, accidental death at the election of Buyer, in its sole and dismemberment, short-term disability, absolute discretion; and workers’ compensation insurance benefits, on the event giving rise to such benefits; (ii) medical, vision, dental, such service crediting shall be permitted 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 Transferred Employee participatesconsistent with Buyer’s defined contribution retirement plan.
(eg) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, Nothing herein express or implied, implied by this Agreement shall confer upon any other Person employee of the Business, or legal representative thereof, any rights or remedies remedies, including any right to employment or benefits for any specified period, of any nature whatsoever or kind whatsoever, under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit PlanAgreement. The Parties hereto acknowledge and agree that the terms set forth covenants contained in this Section 4.03 6.01 are agreements solely between Seller and Buyer for each other’s benefit and nothing contained in this Section shall not create be deemed to be or construed as amending any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoeverBenefit Plan.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten Certain current and former employees of the Company and its Subsidiaries (10including certain predecessor companies) Business Days participate in a qualified defined benefit pension plan known as the WilTel Communications, LLC Pension Plan (the “Retirement Plan”). Prior to the Closing Date, Leucadia and the Seller shall take all necessary and appropriate action to: (i) cause the Company and its Subsidiaries to amend or revise the Retirement 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 Retirement Plan and the related obligations and liabilities thereunder accrued in respect of the eligible employees prior to the Closing Date, CLNC shall, or shall and (iii) cause an Affiliate of CLNC to, offer the Company and its Subsidiaries to each of cease to sponsor and maintain the employees of Manager and/or any of its Affiliates who, Retirement Plan as of the date of this Agreement, are primarily engaged in providing services under such sponsorship is assumed by Leucadia and the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participatedSeller; provided, however, that such service shall not be recognized the covenants of the Seller set forth in clauses (i) for purposes through (iii) of benefits accrual under any this Section 7.12(a) shall be of no further force and effect upon the exercise by the Buyer of its Benefit Plan Substitution Right in accordance with Section 2.2(b). The Company and its Subsidiaries shall have no obligation to implement a qualified defined benefit pension plans plan for their employees on or retiree health after the Closing Date.
(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 (the “Deferred Compensation Plan”). Prior to the Closing Date, Leucadia and the Seller shall take all necessary and appropriate action to: (i) cause the Company and its Subsidiaries to amend or welfare revise the Deferred Compensation Plan so that no further benefits will be accrued by their employees under such plan on or arrangement or after the Closing Date, (ii) to assume the extent that such recognition would result sponsorship of the Deferred Compensation Plan and the related obligations and liabilities thereunder accrued in a duplication respect of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately employees prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductiblesDate, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence cause the Company and its Subsidiaries to cease to sponsor and maintain the Deferred Compensation Plan as of insurability requirement the date such sponsorship is assumed by Leucadia and the Seller; provided, however, that would otherwise the covenants of the Seller set forth in clauses (i) through (iii) of this Section 7.12(b) shall be applicable of no further force and effect upon the exercise by the Buyer of its Benefit Plan Substitution Right in accordance with Section 2.2(b). The Company and its Subsidiaries shall have no obligation to implement a Transferred Employee and his or her eligible dependents nonqualified deferred compensation plan for their employees on or after the ClosingClosing Date.
(c) Within three days after the date hereof, except the Seller shall deliver to the extent such waiting period Buyer a list dated as of October 28, 2005 containing the name, position, starting employment date, current annual salary, bonus and commissions in 2004 of each current employee of either of the Company or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closingits Retained Subsidiaries.
(d) Effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason No provision of this Section 4.03. Nothing contained herein, express 7.12 shall create any third party beneficiary or implied, shall be construed to establish, amend other rights in any employee or modify any benefit plan, program, agreement or arrangement, former employee (including any Benefit Plan. The Parties hereto acknowledge beneficiary or dependent thereof) of the Company or of any of its Subsidiaries in respect of continued employment (or resumed employment) and agree that the terms set forth in no provision of this Section 4.03 7.12 shall not create any right such rights in any Transferred Employee such Persons in respect of any benefits that may be provided, directly or indirectly, under any other Person to any continued employment with CLNC employee plan or arrangement which may be established or maintained by the Buyer or any of its Affiliates after the Closing Date. No provision of this Agreement shall constitute a limitation on rights to amend, modify or compensation terminate after the Closing Date any such plans or benefits arrangements of the Buyer or any nature or kind whatsoeverof its Affiliates.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten Commencing on the Closing Date, Seller shall terminate all employees of the Business who are actively at work on the Closing Date, and, at Bxxxx’s sole discretion, Buyer may offer employment, on an “at will” basis, to any or all of such employees.
(10b) Business Days Seller Parties 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, 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 DateDate and Seller shall pay all such amounts to all entitled persons on or prior to the Closing Date (“Pre-Closing Employee Obligations”); provided, CLNC shallhowever, Seller Parties shall not be obligated to pay the portion of the Pre-Closing Employee Obligations attributable to accrued and unused vacation, paid time off, or shall cause an Affiliate of CLNC to, offer to each of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, other similar amounts that are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on accrued through the Closing Date and ending on reflected in the date which is twelve Employee Benefit Credit (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC“Accrued Employee Vacation”), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than so long as the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided Employee Benefit Credit is credited to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of Buyer at the Closing.
(c) CLNC shallSeller Parties shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or shall cause its Affiliates todisability benefits brought by or in respect of current or former employees, give each Transferred Employee full credit for such Transferred Employee’s service with Manager officers, directors, independent contractors or its Affiliates (and predecessorsconsultants of the Business or the spouses, as applicable) dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date. Seller also shall remain solely responsible for eligibility and vesting purposes and for purposes all worker’s compensation claims of vacation accrual and severance benefit determinations under any benefit plans established current or maintained by CLNC former employees, officers, directors, independent contractors or its Affiliates in consultants of the Business, which the Transferred Employee participates following the Closing relate to the same extent recognized by CLNC events occurring on or its Affiliates immediately 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) Each employee of the Business who becomes employed by Buyer in connection with the transaction shall be given service credit for the purpose of eligibility under a comparable Benefit Plan in which the Transferred Employee participatedgroup 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 such service shall not be recognized (i) for purposes such credit shall be given pursuant to payroll or plan records, at the election of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or Buyer, in its sole and absolute discretion; and (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closing.
(d) Effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees prior to the Closing Date. For purposes of this Agreement, the following claims service crediting shall be deemed to be incurred as follows: (i) life, accidental death permitted 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 Transferred Employee participatesconsistent with Buyer’s defined contribution retirement plan.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten Certain current and former employees of the Company and its Subsidiaries (10including certain predecessor companies) Business Days participate in a qualified defined benefit pension plan known as the WilTel Communications, LLC Pension Plan (the "Retirement Plan"). Prior to the Closing Date, Leucadia and the Seller shall take all necessary and appropriate action to: (i) cause the Company and its Subsidiaries to amend or revise the Retirement 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 Retirement Plan and the related obligations and liabilities thereunder accrued in respect of the eligible employees prior to the Closing Date, CLNC shall, or shall and (iii) cause an Affiliate of CLNC to, offer the Company and its Subsidiaries to each of cease to sponsor and maintain the employees of Manager and/or any of its Affiliates who, Retirement Plan as of the date of this Agreement, are primarily engaged in providing services under such sponsorship is assumed by Leucadia and the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participatedSeller; provided, however, that such service shall not be recognized the covenants of the Seller set forth in clauses (i) for purposes through (iii) of benefits accrual under any this Section 7.12(a) shall be of no further force and effect upon the exercise by the Buyer of its Benefit Plan Substitution Right in accordance with Section 2.2(b). The Company and its Subsidiaries shall have no obligation to implement a qualified defined benefit pension plans plan for their employees on or retiree health after the Closing Date.
(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 (the "Deferred Compensation Plan"). Prior to the Closing Date, Leucadia and the Seller shall take all necessary and appropriate action to: (i) cause the Company and its Subsidiaries to amend or welfare revise the Deferred Compensation Plan so that no further benefits will be accrued by their employees under such plan on or arrangement or after the Closing Date, (ii) to assume the extent that such recognition would result sponsorship of the Deferred Compensation Plan and the related obligations and liabilities thereunder accrued in a duplication respect of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately employees prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductiblesDate, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence cause the Company and its Subsidiaries to cease to sponsor and maintain the Deferred Compensation Plan as of insurability requirement the date such sponsorship is assumed by Leucadia and the Seller; provided, however, that would otherwise the covenants of the Seller set forth in clauses (i) through (iii) of this Section 7.12(b) shall be applicable of no further force and effect upon the exercise by the Buyer of its Benefit Plan Substitution Right in accordance with Section 2.2(b). The Company and its Subsidiaries shall have no obligation to implement a Transferred Employee and his or her eligible dependents nonqualified deferred compensation plan for their employees on or after the ClosingClosing Date.
(c) Within three days after the date hereof, except the Seller shall deliver to the extent such waiting period Buyer a list dated as of October 28, 2005 containing the name, position, starting employment date, current annual salary, bonus and commissions in 2004 of each current employee of either of the Company or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closingits Retained Subsidiaries.
(d) Effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason No provision of this Section 4.03. Nothing contained herein, express 7.12 shall create any third party beneficiary or implied, shall be construed to establish, amend other rights in any employee or modify any benefit plan, program, agreement or arrangement, former employee (including any Benefit Plan. The Parties hereto acknowledge beneficiary or dependent thereof) of the Company or of any of its Subsidiaries in respect of continued employment (or resumed employment) and agree that the terms set forth in no provision of this Section 4.03 7.12 shall not create any right such rights in any Transferred Employee such Persons in respect of any benefits that may be provided, directly or indirectly, under any other Person to any continued employment with CLNC employee plan or arrangement which may be established or maintained by the Buyer or any of its Affiliates after the Closing Date. No provision of this Agreement shall constitute a limitation on rights to amend, modify or compensation terminate after the Closing Date any such plans or benefits arrangements of the Buyer or any nature or kind whatsoeverof its Affiliates.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten (10) Business Days prior Prior to the Closing Date, CLNC Purchaser shall, or shall cause an Affiliate of CLNC Purchaser to, offer to each of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth employment effective on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, to all employees of Seller, including any such employees who are absent due to vacation, family leave, short-term disability or other approved leave of absence (the Seller employees who accept such employment and Manager commence employment on the Closing Date, the “Transferred Employees”).
(b) During the period commencing on the Closing Date and ending on August 31, 2021 (the “Employee Transition Period”), ALT shall cause the Transferred Employees to remain on ALT’s group health insurance plan, and ALT shall continue to pay the salary and wages of the Transferred Employees. Purchaser, or its Affiliate, as applicable, shall terminate will reimburse ALT for the employment of each such actual salary and wages paid to the Transferred Employees by ALT during the Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNCTransition Period, as applicable, well as all costs and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred expenses related to as “Transferred EmployeesALT’s group health insurance plan for the Employee Transition Period.”
(bc) During the period commencing on the Closing Date and ending on the date which is twelve six (126) months from following the Closing Date (or if earlier, the date of the Transferred Employee’s 's termination of employment with CLNC Purchaser or an Affiliate of CLNCPurchaser), CLNC Purchaser shall, or shall cause an Affiliate of CLNC Purchaser to, maintain, for provide each Transferred Employee, Employee with: (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees Seller immediately prior to the Closing. During such twelve-month period following ; (ii) target bonus and commission opportunities, if any, which are no less than the target bonus and commission opportunities provided by Seller immediately prior to the Closing; and (iii) group health plan coverage.
(d) With respect to any employee benefit plan maintained by Purchaser or an Affiliate of Purchaser (collectively, no Transferred Employee shall be required to relocate more than twenty-five (25“Purchaser Benefit Plans”) miles from such for the benefit of any Transferred Employee’s employment location , effective as of the Closing.
(c) CLNC , Purchaser shall, or shall cause its Affiliates to, give each recognize all service of the Transferred Employee full credit for such Transferred Employee’s service Employees with Manager or its Affiliates (and predecessorsSeller, as applicable) prior to the Closing if such service were with Purchaser or such Affiliate, for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participatedpurposes; provided, howeverthat, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of servicebenefits. CLNC For any Purchaser Benefit Plan that is a group health plan, Purchaser shall, or shall cause its Affiliates to, (i) waive use commercially reasonable efforts, subject to the terms of the applicable plan and consent of the applicable insurer, to cause any preexisting and all pre-existing condition limitations otherwise applicable and eligibility waiting periods to be waived with respect to each Transferred Employees Employee (and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may dependents) and cause to be eligible to participate following the Closing; (ii) honor any deductiblecredited, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion for purposes of the plan year prior to the Closing in satisfying Purchaser Benefit Plan, any deductibles, co-payments deductibles or out-of-pocket maximums under health plans maintained expenses incurred by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his their beneficiaries and dependents during the portion of the year prior to their participation in the Purchaser Benefit Plan. Purchaser or her eligible dependents on an Affiliate of Purchaser shall satisfy or after the Closingcause to be satisfied and be fully responsible for any and all COBRA obligations that are required to be offered to any “M&A Beneficiary” (as such term is defined in as defined in Treasury Regulation Section 54.4980B-9, except Q&A 4) with regard to this transaction to the extent required by Treasury regulation 54.4980B-9, with the cost of such waiting period or requirement would have been coverage being the sole responsibility of the applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the ClosingM&A Beneficiary.
(de) Effective Except as provided in Section 5.14(b), effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Employee Plans. Manager Seller shall remain liable for all eligible claims for benefits under the Benefit Employee Plans that are incurred by the Transferred Employees 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 Transferred Employee employee participates.
(ef) 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 5.14(c), including for purposes of any Employee 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. Purchaser shall be liable and hold the Seller harmless for any claims relating to the employment of any Transferred Employee arising out of or attributable to such Transferred Employee’s employment with Purchaser or its Affiliate following the Closing.
(g) This Section 4.03 5.14 shall be binding upon and inure solely to the benefit of each of the Parties to this AgreementParties, and nothing in this Section 4.035.14, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.035.14. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 5.14 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC Purchaser or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
Appears in 1 contract
Employees and Employee Benefits. (a) At For at least ten six (106) Business Days prior to months following the Closing Date, CLNC shall, the Surviving Corporation shall provide or shall cause an Affiliate of CLNC to, offer to each be provided to all employees of the employees of Manager and/or any of Company and its Affiliates who, Subsidiaries as of immediately prior to the date of this AgreementEffective Time, are primarily engaged in providing services under other than the Management Agreement, whose names are set forth employees identified on Section 4.03(a7.16(a) of the Company Disclosure Schedules Letter, who become employed or remain employed by the Surviving Corporation and its Affiliates at or after the Closing Date (the “Continuing Employees”) (i) compensation at a position rate of employment base salary or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliatewages, as applicable, shall terminate that is not less favorable than the employment rate of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than paid by the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC Company or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; providedDate, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or and (ii) other benefits that are either substantially similar in the aggregate to the extent that such recognition would result in a duplication of coverage or benefits with respect to provided by the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC Company or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during Date or substantially similar in the portion aggregate to the benefits provided by Parent and its Affiliates to their employees generally who are similarly situated to such Continuing Employees, determined in Parent’s sole discretion.
(b) Each Continuing Employee shall be entitled to receive (without duplication), (i) upon a termination of employment without Cause (as defined below) within six (6) months following the Closing Date, a lump sum cash severance payment (subject to execution and non-revocation of a release of claims in favor of Parent and its Subsidiaries) equal to such Continuing Employee’s Specified Compensation Amount, less the total amount of base salary actually paid to such Continuing Employee by Parent and its Subsidiaries for the period beginning on the date that the Effective Time occurs and ending on the date of the plan year prior to Continuing Employee’s termination of employment, or (ii) if such Continuing Employee remains employed with Parent and its Subsidiaries through the date that is six (6) months following the Closing in satisfying any deductiblesDate, co-payments or out-of-pocket maximums under health plans maintained a lump sum cash bonus equal to such Continuing Employee’s Specified Compensation Amount, less the total amount of base salary actually paid to such Continuing Employee by CLNC or Parent and its Affiliates in which such Transferred Employee Subsidiaries for the period beginning on the date that the Effective Time occurs and ending on the date that is eligible to participate after six (6) months following the Closing Date. The Company or the Company Subsidiaries, as applicable, may enter into a letter agreement with each of the Continuing Employees providing for the payment of the severance payments and/or cash bonuses described in the same plan year immediately preceding sentence, with the terms and conditions of such agreements subject to Parent’s prior written consent, not to be unreasonably withheld or delayed; provided that, if the sum of the amounts payable under such letter agreements exceeds $3,532,007, the Parties shall cooperate to reduce the payment amount in the individual letters so that the aggregate payments do not exceed $3,532,007. For purposes of this Section 7.16(b), (i) “Cause” means (A) acts or omissions constituting recklessness or willful misconduct on the Continuing Employee’s part in respect of the Continuing Employee’s fiduciary obligations to Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) which such deductiblesis materially and demonstrably injurious to Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries); (B) the Continuing Employee’s commission of fraud, co-payments misappropriation or out-of-pocket maximums were incurredembezzlement in connection with the assets of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries); or (C) the Continuing Employee’s willful unauthorized disclosure of any confidential information, or other breach of any restrictive covenant set forth in an agreement between the Continuing Employee and Parent or any of its Subsidiaries (including the Surviving Corporation and its Subsidiaries); and (iiiii) waive any waiting period limitation or evidence “Specified Compensation Amount” means the sum of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closing.
(dA) Effective as 50% of the Closingapplicable Employee’s 2015 annual base compensation, except as may otherwise be agreed between (B) 50% of the parties under grant date value of any Company RSAs granted to such Continuing Employee in 2015 and (C) 50% of the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred most recent annual bonus received by the Transferred Employees such Continuing Employee 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten Prior to the Closing Date, Newco shall extend offers of at-will employment to Employees of the Business, and offers to engage those Personnel of the Business, exclusive of Employees, for certain consultant or independent contractor services, on such terms and conditions as set forth as Exhibit E (10“Offer Letters”). The persons listed on Schedule 5.04(a) hereto shall be retained by Newco for the positions and for such period of time after the Closing Date as are listed on such schedule.
(b) Scouted shall be solely responsible for, and Recruiter and Newco shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former Personnel 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 Scouted at any time on or prior to the Closing Date and Scouted shall pay all such amounts to all entitled persons as and when due.
(c) Scouted 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 Personnel of the Business Days or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date, CLNC shall, . Scouted also shall remain solely responsible for all worker’s compensation claims of any current or shall cause an Affiliate of CLNC to, offer to each former Personnel of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth Business which relate to events occurring on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity prior to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC Scouted shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shallpay, or shall cause an Affiliate of CLNC toto be paid, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided all such amounts to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location appropriate persons as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closingwhen due.
(d) Effective as of the Closing, except soon as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees prior to practicable following the Closing Date. For purposes , Scouted, or any applicable Affiliate, shall effect a transfer of assets and liabilities (including outstanding loans) from the defined contribution retirement plan that it maintains, to the defined contribution retirement plan maintained by Newco, with respect to those eligible Personnel of the Business who become employed by Newco, or an Affiliate of Newco, in connection with the transactions contemplated by this Agreement, the following claims . Any such transfer shall be deemed in an amount sufficient to be incurred as follows: (isatisfy Section 414(l) 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, Code. Upon the transfer of assets and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit liabilities into Newco’s plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 all transferred account balances from Scouted’s plan shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoeverbecome fully vested.
Appears in 1 contract
Samples: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Employees and Employee Benefits. (a) At least ten From the Closing and for a period of eighteen (1018) Business Days 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, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each who continue as employees of the employees of Manager Company and/or any of its Affiliates who, as of Subsidiaries after the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules Closing Date (the “Continuing Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus compensation and target equity award, each as in effect on the date of this Agreement, provided benefits that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to Continuing Employees by the Employees immediately Company 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 Purchaser shall provide Continuing Employees with substantially the same severance benefits provided to Continuing Employees by the Company and/or its Subsidiaries prior to Closing. During such twelve-month period following The terms and conditions of employment of employees of the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location Company and/or its Subsidiaries as of the Closing.
(c) CLNC shall, Closing whose terms and conditions of employment are subject to collective bargaining or other collective labor representation shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closing.
(d) Effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred governed by the Transferred Employees prior to the Closing Dateapplicable collective bargaining agreement. 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03Nothing herein, express or implied, shall confer upon any other Person Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangementremedies, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee to employment or any other Person to any continued employment with CLNC or for any of its Affiliates specified period, or compensation or benefits of any nature or kind whatsoeverwhatsoever under this Agreement.
(b) With respect to any Employee Benefit Plan in which any Continuing Employee first becomes eligible to participate at or after the Closing (“New Company Plan”), the Purchaser or an applicable Affiliate shall: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to employees of the Company and/or its Subsidiaries under any New Company Plan in which such employees may be eligible to participate after the Closing Date to the extent such pre-existing conditions, exclusions and waiting periods were waived or otherwise satisfied under a corresponding Employee Benefit Plan of the Company and/or its Subsidiaries immediately prior to the Closing Date or would have been so waived or satisfied but for such Employee Benefit Plan’s termination; (ii) cause deductibles, coinsurance or maximum out-of-pocket payments to be made by such employees during the 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 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 (iii) recognize service credited by the Company and/or its Subsidiaries prior to the Closing for purposes of eligibility to participate and vesting credit (and for purposes of severance and paid time off only, for purposes of determining the amount or level of benefit) in any New Company Plan in which such Continuing Employee may be eligible to participate after the Closing; provided, however, that in no event shall any credit be given to the extent it would result in the duplication of benefits for the same period of service.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten On the Closing Date, Seller hereby (10and the Stockholders hereby causes Seller to) terminates all employees of the Business Days as of the Closing Date, and, at Buyer’s sole discretion, Buyer may offer employment, on an “at will” basis, to any or all of such employees. Seller and the Stockholders, jointly and severally, hereby bears any and all obligations and liability under the Warn Act resulting from employment losses pursuant to this Section 6.01 or otherwise, whether prior to, on or after the Closing Date.
(b) Seller and the Stockholders, jointly and severally, are hereby solely responsible, and Buyer hereby has 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, paid sick leave, accrued vacation or other paid time off, 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 hereby (and the Stockholders hereby causes Seller to) pay all such amounts to all entitled Persons on or prior to the Closing Date.
(c) Seller and the Stockholders, jointly and severally, hereby 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 on or prior to the Closing Date. Seller and the Stockholders, jointly and severally, also hereby 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, CLNC shall, or shall cause an Affiliate including any claim for exacerbation of CLNC to, offer to each of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided injuries that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) accrued prior to the Closing for eligibility due to conduct or events occurring post-Closing. Seller hereby (and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established the Stockholders hereby causes Seller to) pay, or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing cause to be paid, all such amounts to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees appropriate persons as and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closingwhen due.
(d) Effective as No portion of the Closingassets of any plan, except as may otherwise fund, program or arrangement, written or unwritten, heretofore sponsored or maintained by Seller, including Benefit Plans (and no amount attributable to any such plan, fund, program or arrangement), are hereby transferred to Buyer, and Buyer is hereby not required to continue any such plan, fund, program or arrangement after the Closing Date. The amounts payable on account of all benefit arrangements are hereby determined with reference to the date of the event by reason of which such amounts became payable, without regard to conditions subsequent, and Buyer is hereby not be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims any Action for insurance, reimbursement or other benefits under the Benefit Plans that are incurred payable by the Transferred Employees reason of any event which occurs 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, 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten No later than 14 days following the Closing Date, Newco may, in Newco’s sole discretion, extend offers of employment or engagement to one or more of the Personnel listed on Schedule 3.20(a) hereto. Such Personnel shall be retained by Newco for the positions and for such period of time after the Closing Date as may be determined in Newco’s sole discretion.
(10b) Genesys shall be solely responsible for, and Truli and Newco shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former Personnel 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 Genesys at any time on or prior to the Closing Date and Genesys shall pay all such amounts to all entitled persons as and when due.
(c) Genesys 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 Personnel of the Business Days or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date, CLNC shall, . Genesys also shall remain solely responsible for all worker’s compensation claims of any current or shall cause an Affiliate of CLNC to, offer to each former Personnel of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth Business which relate to events occurring on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity prior to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC Genesys shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shallpay, or shall cause an Affiliate of CLNC toto be paid, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided all such amounts to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location appropriate persons as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closingwhen due.
(d) Effective as of the Closing, except soon as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees prior to practicable following the Closing Date. For purposes , Genesys, or any applicable Affiliate, shall effect a transfer of assets and liabilities (including outstanding loans) from the defined contribution retirement plan that it maintains, to the defined contribution retirement plan maintained by Newco, with respect to those eligible Personnel of the Business who become employed by Newco, or an Affiliate of Newco, in connection with the transactions contemplated by this Agreement, the following claims . Any such transfer shall be deemed in an amount sufficient to be incurred as follows: (isatisfy Section 414(l) 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, Code. Upon the transfer of assets and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit liabilities into Newco’s plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 all transferred account balances from Genesys’s plan shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoeverbecome fully vested.
Appears in 1 contract
Samples: Asset Purchase Agreement (Truli Technologies, Inc.)
Employees and Employee Benefits. (aParent and the Company agree that, except as provided in Section 4.1(b)(vii) At least ten (10) Business Days of the Company Disclosure Letter, all employees of the Acquired Companies immediately prior to the Closing DateEffective Time shall be employed by the Surviving Corporation and its Subsidiaries immediately after the Effective Time; PROVIDED, CLNC shallthat, neither Parent nor the Surviving Corporation shall have any obligation under this Agreement to continue the employment of any such employees following the Effective Time. Prior to the Closing, the Company shall use its Commercially Reasonable Efforts to obtain from each employee listed on Section 4.1(b)(vii) of the Company Disclosure Letter a release signed by each such employee, substantially in the form of EXHIBIT I attached hereto. Parent and the Surviving Corporation agree that, for a period of 12 months after the Effective Time, the Surviving Corporation shall provide all employees of the Surviving Corporation and its Subsidiaries with compensation and employee benefits (other than severance, equity-based compensation, deal-based payments or non-qualified deferred compensation) that are substantially similar to the compensation and employee benefits provided to the employees of the Acquired Companies immediately prior to the Effective Time under the Acquired Company Employee Plans; PROVIDED, HOWEVER, that the costs of providing such benefits shall cause an Affiliate not exceed 110% of CLNC tothe costs of providing such benefits pursuant to the relevant Acquired Company Employee Plans immediately prior to the Effective Time. To the extent the same exist, offer to each the Surviving Corporation shall be responsible for the continuation of health plan coverage, in accordance with the requirements of COBRA and Sections 601 through 608 of ERISA, for any employee of the Acquired Companies or qualified beneficiary under a Company health plan who is already receiving COBRA benefits or who loses health coverage in connection with the transactions contemplated in this Agreement. "COBRA" means the Consolidated Omnibus Budget Reconciliation Act of 1985 and regulations promulgated thereunder. Nothing herein express or implied shall confer upon any of the employees of Manager and/or the Acquired Companies, the Surviving Corporation or any Subsidiary of the Surviving Corporation, or any of its Affiliates whotheir Affiliates, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closing.
(d) Effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies remedies, including any right to any particular form of compensation or employee benefit or to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoeverAgreement.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten (10) Business Days prior to the Closing Date, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each of the 7.6.1 NHSB anticipates employing branch office customer service employees of Manager Tolland and such other employees of Tolland as NHSB shall reasonably require for the conduct of NHSB’s business following the Effective Time. NHSB may, in its sole discretion, 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 Alliance or Tolland through the Effective Time and/or any becomes an employee of its Affiliates whoNHSB or NEWCO for a period of time to be negotiated between NHSB and each such key employee.
7.6.2 Each employee of Tolland who remains employed by NEWCO or NHSB following the Effective Time (each, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the a “EmployeesContinuing Employee”) a position of employment or the opportunity shall be entitled to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as participate in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as such of the date employee benefit plans, deferred compensation arrangements, bonus or incentive plans and/or other compensation and benefit plans of this Agreement and previously provided to CLNC) Tolland that NEWCO or NHSB may continue for the benefit of Continuing Employees following the Effective Time and (ii) whatever employee group health insurance benefits benefit plans and defined contribution retirement other compensation and benefit plans that NEWCO or NHSB may maintain for the benefit of its similarly situated employees on an equitably equivalent basis, if such Continuing Employee is not otherwise then participating in a similar plan benefits opportunities of Tolland then provided by NHSB or NEWCO. The parties hereto acknowledge that areContinuing Employees shall be eligible to participate in any stock option plan, in the aggregaterestricted stock plan, substantially similar to those provided and/or ESOP which NEWCO implements subsequent to the Effective Time (“New Option Plan”) (subject to receipt of necessary corporate, regulatory and shareholder approvals) based upon the same criteria as other employees of NHSB or NEWCO, with any grants to be made pursuant to such plans with the goal of treating Continuing Employees immediately pursuant to the same criteria and on the same terms as Back to Contents those generally applicable to employees who were employees of NHSB prior to the ClosingEffective Time. During such twelve-month period following the Closing, no Transferred Employee Continuing Employees shall be required eligible to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full receive credit for such Transferred Employee’s service with Manager Alliance and the Alliance Subsidiaries under any existing NHSB employee plan or its Affiliates (and predecessors, as applicable) prior any NHSB benefit plan in which such employees would be eligible to the Closing for eligibility and vesting purposes and enroll for purposes of vacation determining eligibility for and for any applicable vesting periods of such employee benefits only (and not for benefit accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; purposes) provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits benefits. Each Continuing Employee shall be credited with service as a Tolland employee for purposes of determining their status under NHSB’s policies with respect to vacation, sick and other leave. With respect to the same period NHSB defined benefit pension plan, each Continuing Employee shall be credited with service as a Tolland employee for purposes of servicedetermining eligibility under the early retirement, normal retirement and disability provisions of such plan. CLNC shallWith respect to any NHSB plan which is a health, life or disability insurance plan, each Continuing Employee shall cause its Affiliates to, (i) waive not be subject to any preexisting pre-existing condition limitations otherwise applicable to Transferred Employees limitation for conditions covered under such plans and their eligible dependents under any each such plan maintained by CLNC or its Affiliates that which provides health insurance benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) shall honor any deductible, co-payment deductible and out-of-pocket maximums expenses incurred under any comparable Tolland 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 Alliance Employee Plans in accordance with their terms at any time after the Effective Time. At the Effective Time, NEWCO or NHSB shall become the plan sponsor of each Alliance Employee Plan. Alliance agrees to take or cause to be taken such actions as NEWCO or NHSB may reasonably request to give effect to such assumption. NEWCO or NHSB shall have the right and power at any time following the Effective Time to amend or terminate or cease benefit accruals under any Alliance Employee Plan or cause it to be merged with or its assets and liabilities to be transferred to a similar plan maintained by NEWCO or NHSB.
7.6.3 Section 7.6.3 of the ALLIANCE DISCLOSURE SCHEDULE contains all employment and change of control, severance, deferred compensation, retirement and similar agreements, arrangements, policies or programs with any employee or director of Alliance or any Alliance Subsidiary (“Benefit Agreements”). At and following the Effective Time, NHSB and NEWCO shall honor, and the Surviving Corporation shall continue to be obligated to perform, in accordance with their terms, all benefit obligations of Alliance existing as of the Effective Time under the Benefit Agreements, including without limitation bank-owned life insurance, other than those employment agreements, change in control agreements and supplemental executive retirement plans covered by the Termination and Release Agreements referenced in Section 7.6.4 hereof. NHSB acknowledges (i) that the consummation of the Merger will constitute a Transferred Employee “change-in-control” of Alliance for purposes of any of the Benefit Agreements of Alliance (except where otherwise set forth in Section 7.6.3 of the Alliance Disclosure Schedule). Any employee or director of Alliance or any of its Subsidiaries who is a party to an agreement which has been set forth in Section 7.6.3 of the ALLIANCE DISCLOSURE SCHEDULE, excluding the employment agreements, change in control agreements and supplemental executive retirement plans covered by the Termination and Release Agreements referenced in Section 7.6.4 hereof (the “Executive Agreements”) who becomes entitled to benefits thereunder shall be entitled to receive the cash benefits payable under such agreement; provided, however, that the employee or director 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. To the extent that an employee of Alliance or any of its Subsidiaries is entitled Back to Contents to the continued receipt of health insurance, life insurance, disability insurance, automobile allowance or other similar fringe benefits pursuant to an Executive Agreement, and such employee becomes an officer, employee or consultant of NEWCO or any of its Subsidiaries following the Effective Time and as a result becomes entitled to receive the same fringe benefits in his or her eligible dependents under capacity as an officer, employee or consultant of NEWCO or any of its Subsidiaries, then the health plans in which fringe benefits provided to such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closing.
(d) Effective as of the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees prior to the Closing Date. For purposes of this Agreement, the following claims person shall be deemed to be incurred provided in connection with such person’s service as follows: (i) lifean officer, 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 employee 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely to the benefit consultant of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC NEWCO or any of its Affiliates or compensation or Subsidiaries for so long as such person serves in such capacity and shall be in lieu of, and not in addition to (and for the sole purpose to avoid duplication of benefits), the same fringe benefits that would have otherwise been provided pursuant to the Executive Agreement.
7.6.4 Concurrently with the execution of any nature or kind whatsoever.this Agreement by the parties hereto, (i) each of Xxxxxx X. Xxxxx, Xxxxxxx X.
Appears in 1 contract
Samples: Merger Agreement (Alliance Bancorp of New England Inc)
Employees and Employee Benefits. (a) At least ten (10) Business Days During the one-year period immediately following the Closing Date, Buyer and the Surviving Company shall provide employees of the Surviving Company and its Affiliates who were employees of the Company and its Subsidiaries immediately prior to the Closing Date, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each of and who continue employment with the employees of Manager and/or any of Company and its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be effective as of Subsidiaries following the Closing Date, and Manager Date with (i) annual rates of base salary or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNChourly wages, as applicable, and commence employment with CLNC or an Affiliate annual target cash incentive opportunities that are no less than the annual rates of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously annual target cash incentive opportunities provided to CLNC) such employees immediately before the Closing; and (ii) coverage and benefits pursuant to employee group health insurance benefits benefit plans, programs, policies and defined contribution retirement plan benefits opportunities arrangements that are, in the aggregate, substantially similar comparable to those the benefits provided to such employees under the Employees Plans (excluding any Multiemployer Plan) as in effect immediately prior to the Closing. During Where applicable, each such twelve-month period following the Closing, no Transferred Employee employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closing.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee receive full credit for such Transferred Employee’s service with Manager or the Company and its Affiliates (and predecessors, as applicable) prior Subsidiaries for purposes of determining eligibility to the Closing for eligibility participate and vesting purposes (excluding equity-based compensation vesting) under each employee benefit plan, program, policy or arrangement to be provided by Buyer or the Surviving Company to such employee (excluding equity-based compensation) and for purposes of accruing vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing other paid time off benefits to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be was recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate following the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying applicable Plan (excluding any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iiiMultiemployer Plan) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the Closing.
. To the extent any such employee has satisfied any deductible or co-payments under the Plans that are group health plans for the Plan year in which the Closing occurs, Buyer or the Surviving Company shall use commercially reasonable measures to provide such employee with credit for such payment under the group health plans of Buyer or the Surviving Company that most closely resembles the group health Plan under which the deductible or co-payment was satisfied. Nothing in this Agreement (di) Effective as requires the Buyer or the Surviving Company and its Affiliates to continue the employment of any employee following the Closing, except as may otherwise be agreed between the parties under the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred 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; or (ii) medical, vision, dental, and prescription drug benefits, on the date the applicable services, materials constitutes a benefit plan 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 Transferred Employee participates.
(e) This Section 4.03 shall be binding upon and inure solely an amendment to the benefit of each of the Parties to this Agreement, and nothing in this Section 4.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any a benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
Appears in 1 contract
Employees and Employee Benefits. (a) At least ten (10) Business Days prior to the Closing Date, CLNC Buyer shall, or shall cause an Affiliate of CLNC Buyer to, offer to each of the employees of Manager and/or any of its Affiliates who, as of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect effective on the date Closing Date, to all Employees, including Employees who are absent due to vacation, family leave, short-term disability or other approved leave of this Agreementabsence. Seller shall cooperate with Buyer in connection with Buyer’s efforts to hire the Employees and to obtain the execution and delivery of their New Hire Documents, provided that the form in which such compensation is paid does not need to be the same that the Transferred Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment New Hire Documents to be effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those The Employees who accept employment offers from CLNC or an Affiliate of CLNCwith Buyer, as applicable, execute and return their New Hire Documents and commence employment on the Closing Date are referred to herein as the “Transferred Employees”). The Employees who do not accept employment with CLNC Buyer, or an Affiliate of CLNC who do not execute and deliver their New Hire Documents to Buyer prior to or on the Closing Date, shall hereafter be referred to herein as “Non-Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC Buyer or an Affiliate of CLNCBuyer), CLNC Buyer shall, or shall cause an Affiliate of CLNC Buyer to, maintain, for provide each Transferred Employee, Employee with: (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of Seller immediately prior to the date of this Agreement and previously provided Closing, subject to CLNC) and compliance with applicable Law; (ii) employee group health insurance target bonus opportunities (excluding equity-based compensation), if any, which are substantially comparable to the target bonus opportunities (excluding equity-based compensation) provided by Seller immediately prior to the Closing; (iii) retirement and welfare benefits and defined contribution retirement plan benefits opportunities that are, are substantially comparable in the aggregate, substantially similar to aggregate than those provided by Seller immediately prior to the Employees Closing; and (iv) severance benefits that are substantially comparable to the practice, plan or policy of Seller in effect for such Transferred Employee immediately prior to the Closing. During such twelve-month period following Nothing in this Agreement shall limit Buyer’s ability to terminate the Closing, no employment of any Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closingat any time and for any reason, including without cause.
(c) CLNC With respect to any employee benefit plan maintained by Buyer or an Affiliate of Buyer (collectively, “Buyer Benefit Plans”) for the benefit of any Transferred Employee, effective as of the Closing, Buyer shall, or shall cause its Affiliates Affiliate to, give each recognize all service of the Transferred Employee full credit for such Transferred Employee’s service Employees with Manager or its Affiliates (and predecessorsSeller, as applicable) prior to the Closing if such service were with Buyer, for vesting, and eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participatedpurposes; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that (x) such recognition would result in a duplication of coverage benefits or benefits with respect to (y) such service was not recognized under the same period corresponding Benefit Plan. Without limiting the generality of service. CLNC shallthe foregoing, or Buyer shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable pay all bonuses to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits are included in which Transferred Employees may be eligible to participate the Closing Working Capital Statement promptly following the Closing; (ii) honor any deductible, co-payment end of calendar year 2015 and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under otherwise in accordance with the health plans in which such Transferred Employee participated immediately prior to the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Buyer Benefit Plan in which the Transferred Employee participated immediately prior to the ClosingPlan.
(d) Effective as of Closing and thereafter, Buyer shall waive any eligibility waiting periods and evidence of insurability requirements under any health plan of Buyer or an Affiliate of Buyer extended to Transferred Employees and their eligible dependents, and shall credit each Transferred Employee with all deductible payments, co-payments and other out-of-pocket expenses paid by such Employee under the health benefit plans of Seller prior to the Closing with respect to the plan year in which the Closing occurs for purposes of determining the extent to which any such Employee and his dependents have satisfied his, her or their deductible and/or reached an out of pocket maximum under any health benefit plan of Buyer (or Affiliate of Buyer) extended to Transferred Employees after the Closing.
(e) With respect to any defined contribution plan maintained by Seller as of the Closing, except Buyer shall accept a rollover of account balances into its defined contribution plan, including a rollover of any loan notes outstanding as may otherwise be agreed between of Closing, and shall cooperate with Seller to effect such rollovers.
(f) Effective as of the parties under the Transition Services AgreementClosing, the Transferred Employees shall cease active participation in the Benefit Plans. Manager Seller shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees prior to or on the Closing Date, and, with respect to Non-Transferred Employees, at any time, including with respect to severance and accrued but unused vacation time. 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 Transferred Employee participates.
(eg) Buyer and Seller intend that the transactions contemplated by this Agreement should not result in a payment of severance under either Buyer’s or Seller’s severance plan or policy with respect any Employee who receives an employment offer by Buyer that is consistent with the requirements of Section 6.04(b), and, accordingly, Buyer and Seller shall, prior to Closing, take all actions necessary or advisable to amend their severance policies or plans to so provide. Buyer shall be liable and hold Seller harmless for any claims relating to the employment of any Transferred Employee by Buyer arising following the Closing.
(h) Buyer shall include in offer materials provided to each of Xxxx Xxxxx, Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxx Xxxxxx and Xxxxxxxxx Xxxx (each a “Named Employee”), a general release of Seller in the form of Exhibit H, and shall use its reasonable efforts to cause each such Employee to execute such release. The offer of employment made by Buyer to each Named Employee shall consist of terms that in a reasonable interpretation do not constitute grounds for such employee to resign for “Good Reason” under the terms of the severance agreement between each such Named Employee and Seller, as in effect on the date hereof.
(i) This Section 4.03 6.04 shall be binding upon and inure solely to the benefit of each of the Parties parties to this Agreement, and nothing in this Section 4.036.04, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.036.04. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties parties hereto acknowledge and agree that the terms set forth in this Section 4.03 6.04 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC Buyer or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
Appears in 1 contract
Samples: Asset Purchase Agreement (Higher One Holdings, Inc.)
Employees and Employee Benefits. (a) At least ten (10) Business Days prior to the Closing Date, CLNC shall, or shall cause an Affiliate of CLNC to, offer to each It is contemplated that all of the employees currently providing services to Parascript will become employees of Manager and/or any of its Affiliates whoMitek. Prior to Closing, as the parties will formally document their agreement regarding such employees, which agreement will address salaries and benefits, retirement and savings plans and general employee provisions.
(b) Mitek shall assume sponsorship of the date of this Agreement, are primarily engaged in providing services under the Management Agreement, whose names are set forth on Section 4.03(a) of the Disclosure Schedules (the “Employees”) a position of employment or the opportunity to be employed by CLNC (or an Affiliate thereof), on substantially similar economic terms with regard to the sum of each such Transferred Employee’s current base salary, target cash bonus and target equity award, each as in effect on the date of this Agreement, provided that the form in which such compensation is paid does not need to be the same that the Transferred Parascript Employee currently receives from Manager or its Affiliate (such economic terms, the “Total Target Direct Compensation Opportunity”), with such employment to be Plans effective as of the Closing Date, and Manager or its Affiliate, as applicable, shall terminate the employment of each such Employee effective as of 11:59 p.m., New York City time, on the date immediately preceding the Closing Date. Those Employees who accept employment offers from CLNC or an Affiliate of CLNC, as applicable, and commence employment with CLNC or an Affiliate of CLNC shall hereafter be referred to as “Transferred Employees.”
(b) During the period commencing on the Closing Date and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the Transferred Employee’s termination of employment with CLNC or an Affiliate of CLNC), CLNC shall, or shall cause an Affiliate of CLNC to, maintain, for each Transferred Employee, (i) their respective Total Target Direct Compensation Opportunity (which shall include base salary or hourly wages which are no less than the base salary or hourly wages provided by Manager as of the date of this Agreement and previously provided to CLNC) and (ii) employee group health insurance benefits and defined contribution retirement plan benefits opportunities that are, Participation in the aggregate, substantially similar to those provided to the Employees immediately prior to the Closing. During Parascript Employee Plans by such twelve-month period following the Closing, no Transferred Employee shall be required to relocate more than twenty-five (25) miles from such Transferred Employee’s employment location as of the Closingemployees will continue uninterrupted.
(c) CLNC shall, or shall cause its Affiliates to, give each Transferred Employee full credit for such Transferred Employee’s service with Manager or its Affiliates (and predecessors, As soon as applicable) prior to the Closing for eligibility and vesting purposes and for purposes of vacation accrual and severance benefit determinations under any benefit plans established or maintained by CLNC or its Affiliates in which the Transferred Employee participates following the Closing to the same extent recognized by CLNC or its Affiliates immediately prior to the Closing under a comparable Benefit Plan in which the Transferred Employee participated; provided, however, that such service shall not be recognized (i) for purposes of benefits accrual under any defined benefit pension plans or retiree health or welfare plan or arrangement or (ii) to the extent that such recognition would result in a duplication of coverage or benefits with respect to the same period of service. CLNC shall, or shall cause its Affiliates to, (i) waive any preexisting condition limitations otherwise applicable to Transferred Employees and their eligible dependents under any plan maintained by CLNC or its Affiliates that provides health benefits in which Transferred Employees may be eligible to participate administratively feasible following the Closing; , Mitek shall merge the Mitek Systems, Inc. 401(k) Retirement Savings Plan, (iithe “Mitek 401(k) honor any deductible, co-payment Plan”) and out-of-pocket maximums incurred by a Transferred Employee and his or her eligible dependents under the health plans in which such Transferred Employee participated immediately prior to Parascript 401(k) Plan (the Closing during the portion of the plan year prior to the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans maintained by CLNC or its Affiliates in which such Transferred Employee is eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii“Parascript 401(k) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Transferred Employee and his or her eligible dependents on or after the Closing, except to the extent such waiting period or requirement would have been applicable under a comparable Benefit Plan in which the Transferred Employee participated immediately prior to the ClosingPlan”).
(d) Effective As soon as of administratively feasible following the Closing, except as may otherwise Mitek shall merge the Mitek Systems, Inc. Flexible Benefits Plan (the “Mitek Cafeteria Plan”) and the Parascript Management, Inc. Flexible Benefits Plan (the “Parascript Cafeteria Plan”). Participant elections made for the plan year that includes the Closing Date (the “Plan Year”) will continue to be agreed between effective on and after the parties under Closing Date. Participant reimbursements made during the Transition Services Agreement, the Transferred Employees shall cease active participation in the Benefit Plans. Manager shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Transferred Employees Plan Year prior to the Closing Date. For purposes of this Agreement, the following claims shall Date will 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 Transferred Employee participatescarried forward.
(e) This Section 4.03 shall be binding upon and inure solely Mitek will take all actions necessary to continue to provide continuation coverage, as required under COBRA, following the benefit Closing Date to any former employee that provided services to Parascript (or dependent of each any employee or former employee of Parascript) whose COBRA qualifying event occurred on or before the Parties to this AgreementClosing Date at a time when the individual was covered by such Parascript Employee Plan. Parascript will provide Mitek with a list of all Persons currently or formerly associated with Parascript who have elected continuation coverage under COBRA under Parascript’s health plan, and nothing who are still in this Section 4.03their available continuation period, express or impliedas well as a list of all such Persons whose qualifying event has occurred before the Closing, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.03and who are in their COBRA election period, but who have not yet made such election. Nothing contained hereinParascript will provide the foregoing information to Mitek at least seven (7) days prior to Closing and will update such information on the Closing Date, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, including any Benefit Plan. The Parties hereto acknowledge and agree that the terms set forth in this Section 4.03 shall not create any right in any Transferred Employee or any other Person to any continued employment with CLNC or any of its Affiliates or compensation or benefits of any nature or kind whatsoeverif necessary.
Appears in 1 contract
Samples: Merger Agreement (Mitek Systems Inc)
