Employees and Offers of Employment. (a) No later than ten (10) Business Days prior to the anticipated Closing Date, Purchaser shall, or shall cause one of its Affiliates to, make an offer (which shall be memorialized in writing) of at-will employment, on terms and conditions consistent with the requirements set forth in Section 8.01(b), to each Employee (whether full-time or part-time, actively employed, or on short-term disability leave, authorized leave of absence, workers’ compensation leave, military service or lay-off with recall rights as of the Closing) to become employed by Purchaser or one of its Affiliates effective as of the Closing. Each Employee who does not specifically decline such offer of employment and commences employment with Purchaser pursuant to this Section 8.01(a) is hereinafter referred to as a “Transferred Employee.” (b) Each offer of employment contemplated by Section 8.01(a) shall, subject to the additional requirements of any at-will employment contract, provide that the Employee will (i) have duties and responsibilities that are no less favorable than those that applied to such Employee immediately prior to the Closing Date, (ii) have a principal place of employment at a location within the United States, and (iii) for the one-year period commencing on the Closing Date, be entitled to receive, in each case as applicable, (A) the same base salary or hourly base wage rate as in effect for such Employee immediately prior to the Closing Date; (B) an annual cash target bonus opportunity that is at least equal to the annual cash target bonus opportunity in effect for such Employee immediately prior to the Closing Date, subject to terms and conditions substantially similar to those in effect for similarly situated employees of Purchaser and its Affiliates; and (C) employee benefits (including retirement benefits) that are substantially similar in the aggregate to the employee benefits (including retirement benefits, but excluding any defined benefit pension or equity-based benefits or compensation) made available to such Employee by Seller and its Affiliates immediately prior to the Closing Date. In addition, Purchaser, or the applicable Affiliate, will cause each written offer to include any such other terms and conditions as are necessary to ensure that Seller shall incur no Liability whatsoever under the federal Worker Adjustment and Retraining Notification Act or analogous state or local Law or any severance plan or arrangement maintained by Seller and applicable to the Employees. (c) Purchaser shall comply with any and all Laws governing employment discrimination and employment relations in connection with its hiring processes and procedures for the employment of the Transferred Employees.
Appears in 1 contract
Employees and Offers of Employment. (a) No later than ten (10) Business Days prior to the anticipated Closing Date, Purchaser shall, On or shall cause one of its Affiliates to, make an offer (which shall be memorialized in writing) of at-will employment, on terms and conditions consistent with the requirements set forth in Section 8.01(b), to each Employee (whether full-time or part-time, actively employed, or on short-term disability leave, authorized leave of absence, workers’ compensation leave, military service or lay-off with recall rights as of the Closing) to become employed by Purchaser or one of its Affiliates effective as of the Closing. Each Employee who does not specifically decline such offer of employment and commences employment with Purchaser pursuant to this Section 8.01(a) is hereinafter referred to as a “Transferred Employee.”
(b) Each offer of employment contemplated by Section 8.01(a) shall, subject to the additional requirements of any at-will employment contract, provide that the Employee will (i) have duties and responsibilities that are no less favorable than those that applied to such Employee immediately prior to the Closing Date, Buyer may, at its sole discretion, offer employment on such terms and conditions as it determines in its sole discretion and on an at-will basis, to some or all of the Employees. No Seller has made any representation or assurance to any Employee about whether he or she will receive an offer of employment and/or about any terms or conditions of employment Buyer may offer. Buyer will cooperate with Sellers in connection with Sellers’ negotiations with certain members of senior management of the Business to waive or otherwise modify such persons’ entitlement to severance payments from Sellers.
(b) Sellers agree to (i) use commercially reasonable efforts to cooperate with Buyer in Buyer’s recruitment of the Employees, (ii) terminate the employment of the Employees who have a principal place accepted Buyer’s offer of employment at a location within employment, on or immediately prior to the United StatesClosing Date and to pay any and all accrued liabilities with respect to each Transferred Employee, including, but not limited to, all such liabilities relating to such termination, including, without limitation any payments and benefits due such Transferred Employees pursuant to accrued salary and wages, bonuses, commissions, pension, retirement, savings, health, welfare and other benefits and severance payments or similar payments of the Transferred Employees, and (iii) for provide to each Transferred Employee any notice (which notice shall be reasonably acceptable to Buyer) required under any law or regulations in respect of such termination including, without limitation, the one-year period commencing on Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and the Closing Date, be entitled to receive, in each case as applicable, (A) the same base salary or hourly base wage rate as in effect for such Employee immediately prior to the Closing Date; (B) an annual cash target bonus opportunity that is at least equal to the annual cash target bonus opportunity in effect for such Employee immediately prior to the Closing Date, subject to terms and conditions substantially similar to those in effect for similarly situated employees of Purchaser and its Affiliates; and (C) employee benefits (including retirement benefits) that are substantially similar in the aggregate to the employee benefits (including retirement benefits, but excluding any defined benefit pension or equity-based benefits or compensation) made available to such Employee by Seller and its Affiliates immediately prior to the Closing Date. In addition, Purchaser, or the applicable Affiliate, will cause each written offer to include any such other terms and conditions as are necessary to ensure that Seller shall incur no Liability whatsoever under the federal Worker Federal Workers Adjustment and Retraining Notification Act or analogous state or local Law or any severance plan or arrangement maintained by Seller and applicable to the Employees(“WARN Act”).
(c) Purchaser Sellers shall comply with any and all Laws governing employment discrimination and employment relations use their commercially reasonable efforts to assist Buyer in connection with its hiring processes and procedures for the employment of obtaining from the Transferred EmployeesEmployees executed assignment of inventions, confidentiality and noncompetition (if applicable) agreements in form satisfactory to Buyer.
Appears in 1 contract
Employees and Offers of Employment. (a) No later than ten (10) Business Days prior to the anticipated Closing Date, Purchaser shall, On or shall cause one of its Affiliates to, make an offer (which shall be memorialized in writing) of at-will employment, on terms and conditions consistent with the requirements set forth in Section 8.01(b), to each Employee (whether full-time or part-time, actively employed, or on short-term disability leave, authorized leave of absence, workers’ compensation leave, military service or lay-off with recall rights as of the Closing) to become employed by Purchaser or one of its Affiliates effective as of the Closing. Each Employee who does not specifically decline such offer of employment and commences employment with Purchaser pursuant to this Section 8.01(a) is hereinafter referred to as a “Transferred Employee.”
(b) Each offer of employment contemplated by Section 8.01(a) shall, subject to the additional requirements of any at-will employment contract, provide that the Employee will (i) have duties and responsibilities that are no less favorable than those that applied to such Employee immediately prior to the Closing Date, Buyer may, at its sole discretion, offer employment on an at-will basis to all of the Transferred Employees.
(b) Seller agrees to (i) use reasonable efforts to cooperate with Buyer in Buyer’s recruitment of the Transferred Employees, (ii) have a principal place terminate the employment of employment at a location within the United StatesTransferred Employees with Seller on or immediately prior to the Closing Date and to pay any and all liabilities with respect to each Transferred Employee, including, but not limited to, all such liabilities relating to such termination, including any payments and benefits due such Transferred Employees pursuant to accrued and payable salary and wages, bonuses, commissions, pension, retirement, savings, health, vacation, welfare and other benefits and severance payments or similar payments of the Transferred Employees, and (iii) provide to each Transferred Employee any notice (which notice shall be reasonably acceptable to Buyer) required under any law or regulations in respect of such termination including the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). Notwithstanding the foregoing, Buyer shall assume all of the Seller’s Closing Date accrued liabilities for post-closing obligations with respect to accrued but unused vacation and paid time off and sick pay.
(c) Buyer agrees that it will make offers of employment to Transferred Employees in good faith, with terms and conditions, including, but not limited to, salary and benefits, to be determined at the oneBuyer’s sole discretion. Nothing herein shall be construed as an offer of employment on other than an employee-year period commencing on the Closing Dateat-will basis. Buyer further agrees to give credit to each Transferred Employee of all applicable calculations of years of service, waiting periods and other limitations and prerequisites so that eligibility for, or employee benefits provided to such person shall be entitled to receive, in each case substantially comparable as applicable, (A) the same base salary or hourly base wage rate as in effect for if such Employee immediately prior to the Closing Date; (B) an annual cash target bonus opportunity that is at least person had been employed by Buyer equal to the annual cash target bonus opportunity his employment by Seller. Seller will make all reasonable efforts to assist Buyer in effect hiring all Transferred Employees, and neither Seller nor any Co-Employer will take any action that would impede, hinder, interfere or otherwise compete with Buyer’s effort to hire any Transferred Employees. Buyer shall not assume responsibility for any Transferred Employee until such employee commences employment with Buyer, but in no event shall Buyer assume any responsibility for any commitment, obligation, duty or liability (i) of Seller to any Transferred Employee, or (ii) to any Transferred Employee immediately that arose prior to the Closing Date, subject except as expressly set forth herein. Buyer shall not assume responsibility for any employee of Seller who is not a Transferred Employee and Seller agrees to continue to assume all responsibilities, commitments and/or liabilities for any employee of Seller who is not a Transferred Employee.
(d) Seller shall use its best efforts to assist Buyer in Buyer’s hiring of certain of Seller’s key Transferred Employees and in its entering into employment or consulting arrangements with them.
(e) Buyer shall employ the Transferred Employees who accept employment with Buyer following the Closing Date in accordance with the terms and conditions substantially similar to those in effect for similarly situated employees of Purchaser and its Affiliates; and (C) employee benefits (including retirement benefits) that are substantially similar set forth in the aggregate employment offer letters to be delivered to the employee benefits (including retirement benefits, but excluding any defined benefit pension or equity-based benefits or compensation) made available to such Employee Transferred Employees by Seller and its Affiliates immediately prior to the Closing DateBuyer. In addition, Purchaser, or the applicable Affiliate, will cause each written offer to include any such other terms and conditions as are necessary to ensure that Seller Nothing herein shall incur no Liability whatsoever under the federal Worker Adjustment and Retraining Notification Act or analogous state or local Law or any severance plan or arrangement maintained by Seller and applicable to the Employees.
(c) Purchaser shall comply with any and all Laws governing employment discrimination and employment relations in connection with its hiring processes and procedures for prevent Buyer from terminating the employment of the any such Transferred EmployeesEmployee.
Appears in 1 contract
Employees and Offers of Employment. (a) No Purchaser shall provide employment effective as of the Closing Date to each employee of DCC listed in the Employee Letter (collectively, the “Employees”), other than the Annex Employees and the Retained Employees, on terms and conditions which are substantially similar in the aggregate to the terms and conditions of each Employee’s employment as of the date hereof (the ”Offers of Employment”). Without limiting the foregoing, each Offer of Employment shall include the following terms:
(i) a base wage or salary that is not less than the base wage or salary in effect immediately prior to the Closing Time;
(ii) aggregate compensation and benefits, including a base wage or salary, benefits (including any pension or retirement plan(s)), and participation in any benefit, incentive and bonus pay programs, including long-term incentive programs, bonus programs or share ownership or issuance programs, that are substantially similar in the aggregate with those in effect immediately prior to the Closing Time; and
(iii) a job function that is substantially similar to the job function in effect immediately prior to the Closing Time. In addition, the Offers of Employment shall provide for recognition for the commencement date of employment and years of service with DCC and all Predecessor Entities, for all purposes, including eligibility and entitlement to employee benefits (including any pension or retirement plan(s) or any replacement plans provided by Purchaser and Purchaser shall waive all waiting periods, evidence of insurability requirements and pre-existing condition limitations under such replacement plans in respect of the Employees), vacation, notice of termination and Severance Obligations. Employees shall be entitled to carry over any unused portion of their 2019 vacation time.
(b) Purchaser shall provide DCC with a copy of the form of the Offers of Employment it intends to deliver to such Employees by no later than ten five (105) Business Days prior to the anticipated delivery of the Offers of Employment and Purchaser shall in good faith consider the comments of DCC on such form of Offers of Employment.
(c) For a period of three (3) months following the Closing Date, Purchaser shall, or shall cause one of its Affiliates to, make an offer (which shall be memorialized in writing) of at-will employment, on provide each such Employee with terms and conditions consistent with the requirements set forth in Section 8.01(b), to each Employee (whether full-time or part-time, actively employed, or on short-term disability leave, authorized leave of absence, workers’ compensation leave, military service or lay-off with recall rights as of the Closing) to become employed by Purchaser or one of its Affiliates effective as of the Closing. Each Employee who does not specifically decline such offer of employment and commences employment with Purchaser pursuant to this Section 8.01(a) is hereinafter referred to as a “Transferred Employee.”
(b) Each offer of employment contemplated by Section 8.01(a) shall, subject to the additional requirements of any at-will employment contract, provide that the Employee will (i) have duties and responsibilities that are no less favorable than those that applied to such Employee immediately prior to the Closing Date, (ii) have a principal place of employment at a location within the United States, and (iii) for the one-year period commencing on the Closing Date, be entitled to receive, in each case as applicable, (A) the same base salary or hourly base wage rate as in effect for such Employee immediately prior to the Closing Date; (B) an annual cash target bonus opportunity that is at least equal to the annual cash target bonus opportunity in effect for such Employee immediately prior to the Closing Date, subject to terms and conditions substantially similar to those in effect for similarly situated employees of Purchaser and its Affiliates; and (C) employee benefits (including retirement benefits) that are substantially similar in the aggregate to the employee benefits (including retirement benefits, but excluding any defined benefit pension or equity-based benefits or compensationterms of employment in each Employee’s Offer of Employment issued in accordance with Section 11.1(a) made available provided that Purchaser shall be entitled to make modifications to such Employee by Seller and its Affiliates immediately prior to the Closing Date. In addition, Purchaser, or the applicable Affiliate, will cause each written offer to include any such other terms and conditions as part of, and comparable to, modifications made to the terms and conditions of employment for Purchaser’s employees generally and provided such modifications are necessary to ensure that Seller shall incur no Liability whatsoever under the federal Worker Adjustment and Retraining Notification Act or analogous state or local Law or any severance plan or arrangement maintained by Seller and applicable not disproportionately applied to the Employees.
(cd) Purchaser may, in its discretion, at any time after the Closing Date, terminate an Employee that has received an Offer of Employment. In such case, Purchaser shall provide to each Employee who is terminated without cause prior to three (3) months following the Closing Date with severance pay and benefits that are equal to, or greater than, the Employee’s entitlements under DCC’s severance pay guidelines that have been disclosed or are referred to in the Data Room Information or the Employee Letter.
(e) Purchaser may engage in discussions with, and make Offers of Employment to, the Annex Employees. Unless an Annex Employee has accepted an Offer of Employment and waived his or her entitlement to receive his or her payment of the amounts set forth in his or her employment agreement, DCC shall be entitled to terminate an Annex Employee and pay all amounts payable to Annex Employees in accordance with the terms of their respective employment agreements, provided that such amounts will be for the account of Purchaser and adjusted for pursuant to Section 6.1(a)(v).
(f) Purchaser shall comply with not make an Offer of Employment to a Retained Employee and, for a period of six (6) months following Closing, Purchaser shall not hire a Retained Employee. DCC shall be entitled to terminate a Retained Employee and DCC and Purchaser acknowledge that Purchaser’s obligation to indemnify for Severance Obligations of the Employees do not apply to such Retained Employees.
(g) To the extent not done prior to the Closing Time, DCC may, following the Closing Time, satisfy all of the Employee Retention Obligations and pay the pro-rated amount of the Employees’ 2019 target bonus amount. Employee Retention Obligations and pro-rated Employee 2019 bonus amounts payable to Employees, shall be for the account of the Purchaser. Employee bonus amounts earned in 2018 and paid in 2019 shall be for the account of DCC.
(h) Notwithstanding Section 11.1(a) above:
(i) for any Employee in receipt of long-term disability benefits immediately prior to the Closing Time, DCC shall give Purchaser written notice when such Employee is cleared as fit to return to work (including on modified duties or on a return to work program), and all Laws governing employment discrimination and employment relations Purchaser shall no later than five (5) Business Days after receipt of such notice issue an Offer of Employment so that such Employee’s start date is effective as of the date the Employee is cleared as fit to return to work instead of the Closing Date;
(ii) for the Subsequently Transferred Employees, the start date of a Subsequently Transferred Employee is anticipated to be sixty (60) days following the Closing Date, provided that: (A) in connection with its hiring processes any Subsequently Transferred Employee that remains substantially engaged in the provision of services pursuant to Section 10.3, DCC may, acting reasonably, extend the retention of any such Subsequently Transferred Employee for a further period not to exceed a further thirty (30) days, or such other date as agreed to by the Parties; and procedures for (B) in connection with any Subsequently Transferred Employee who has in DCC’s discretion ceased engaging in the provision of services pursuant to Section 10.3, the Purchaser may issue an Offer of Employment that is effective as of the date such Subsequently Transferred Employees ceases to provide services pursuant to Section 10.3; and with respect to the Employees identified in Section 11.1(h)(i) and the Subsequently Transferred Employees, all obligations of Purchaser under Sections 11.1(c) and 11.1(d) shall run from such Employee’s start date instead of the Closing Date. For greater certainty, save and except as provided in this Section 11.1(h), Offers of Employment shall be made to all Employees (regardless of whether such Employee is actively employed or on leave of absence, but not on long-term disability, immediately prior to Closing Time), except Annex Employees and the Retained Employees, effective as of the Closing Date and all Offers of Employment to Employees on long-term disability benefits immediately prior to the Closing Time and to Subsequently Transferred Employees shall be effective as of the date specified in the applicable Offer of Employment issued in accordance with this Section 11.1(h).
(i) Nothing in this Section 11.1, express or implied, will confer upon any other Person (other than the Parties hereto) any rights or remedies of any nature whatsoever under or by reason of this Section 11.1. Nothing contained herein, express or implied, will be construed to establish, amend or modify any Employee Plan. The Parties acknowledge and agree that the terms set forth in this Section 11.1 will not create any right in any Employee to any continued employment with Purchaser or DCC or any of their respective Affiliates, or to compensation or benefits of any nature or kind whatsoever, and nothing in this Section 11.1 shall preclude Purchaser or DCC from terminating the employment or services of any Employee, or from terminating any Employee Plan in accordance with its terms and Applicable Law, at any time on or after the Transferred EmployeesClosing.
Appears in 1 contract
Employees and Offers of Employment. (a) No later than ten (10) Business Days Purchaser has, prior to the anticipated date of this Agreement, made contingent offers of employment to the Designated Employees on an "at will" basis on terms reasonably determined by Purchaser to be attractive to such employees and consistent with this Agreement.
(b) Designated Employees who have accepted Purchaser's offer of employment prior to the Closing DateDate with such employment to be effective beginning on the Closing Date (each a "Transferred Employee") will be eligible to participate in employee benefit plans, Purchaser shall, or shall cause one stock option and other compensation plans that are generally available to similarly-situated employees of its Affiliates to, make an offer (which Purchaser. Transferred Employees shall be memorialized in writinggiven credit for service performed for Seller ("Service Credit") for purposes of at-will employment, on terms the following Purchaser benefits:
(i) Regular paid time off under Purchaser's policies (vacation and conditions consistent with the requirements set forth in Section 8.01(bpersonal absence rates);
(ii) Purchaser's Sheltered Employee Retirement Plan ("SERP"), to each vesting and eligibility only;
(iii) Purchaser's Sheltered Employee Retiree Medical Account (whether full-time or part-time"SERMA"), actively employed, or on eligibility only;
(iv) Purchaser's Retiree Medical Plan ("IRMP") eligibility;
(v) Purchaser's short-term disability leaveplan (Seller service will reduce the benefit limitation period for conditions occurring during the first three months of plan participation, authorized leave of absence, workers’ compensation leave, military service or layif the employee enrolls at Purchaser);
(vi) Purchaser's long-off with recall rights as term disability plan: Seller hire date will apply for purposes of the Closingpre-existing condition exclusion; Seller service will reduce the exclusion period for conditions occurring during the first twelve (12) to become employed by Purchaser or one months of its Affiliates effective as of the Closing. Each Employee who does not specifically decline such offer of employment and commences employment with Purchaser pursuant to this Section 8.01(a) is hereinafter referred to as a “Transferred Employee.”plan participation;
(bvii) Each offer of employment contemplated by Section 8.01(aPurchaser's next level service awards (prior service toward next Purchaser milestone); and
(viii) shall, subject to Determining the additional requirements of any at-will employment contract, provide that the Employee will (i) have duties and responsibilities that are no less favorable than those that applied to such Employee immediately prior to the Closing Date, (ii) have a principal place of employment at a location within the United States, and (iii) stock option exercise period following retirement for the one-year period commencing on the Closing Date, be entitled to receive, in each case as applicable, (A) the same base salary or hourly base wage rate as in effect for such Employee immediately prior to the Closing Date; (B) an annual cash target bonus opportunity that is at least equal to the annual cash target bonus opportunity in effect for such Employee immediately prior to the Closing Date, subject to terms and conditions substantially similar to those in effect for similarly situated employees of Purchaser and its Affiliates; and (C) employee benefits (including retirement benefits) that are substantially similar in the aggregate to the employee benefits (including retirement benefits, but excluding any defined benefit pension or equity-based benefits or compensation) made available to such Employee by Seller and its Affiliates immediately prior to the Closing Date. In addition, Purchaser, or the applicable Affiliate, will cause each written offer to include any such other terms and conditions as are necessary to ensure that Seller shall incur no Liability whatsoever under the federal Worker Adjustment and Retraining Notification Act or analogous state or local Law or any severance plan or arrangement maintained by Seller and applicable to the Employeesstock options.
(c) Transferred Employees shall not be given Service Credit for the following Purchaser benefits:
(i) Eligibility for Purchaser's sabbatical;
(ii) Eligibility for stock option vesting acceleration upon retirement for Purchaser stock options;
(iii) Purchaser SERMA contributions or benefit accrual;
(iv) Purchaser SERP benefit accrual, including 401(k) and profit sharing portions;
(v) Purchaser's Long-term disability plan (conditions existing prior to the Seller hire date are not covered); and
(vi) Purchaser's Home PC program. With respect to the foregoing Purchaser benefits, Service Credit shall be counted as of the date the employees are covered by Purchaser's GENI payroll system.
(d) Purchaser shall comply with not assume any and all Laws governing employment discrimination and employment relations in connection with its hiring processes and procedures for the employment compensatory stock options to purchase shares of the Seller's capital stock held by Transferred Employees.
(e) Purchaser shall be responsible for providing COBRA continuation coverage for each qualifying event under Purchaser's health care plans occurring after the Closing Date and relating to a Transferred Employee (or relating to any individual who constitutes a qualified beneficiary with respect to a Transferred Employee). In all other cases, Seller shall be responsible for providing COBRA continuation coverage with respect to the Business Employees and their qualified beneficiaries.
(f) Purchaser and Seller shall use commercially reasonable efforts to enable rollover of any Seller 401(k) plan account balances for eligible Transferred Employees to the Purchaser 401(k) plan. The final determination of eligibility and whether to accept any rollover contributions shall be made by the plan administrator of Purchaser's 401(k) plan in accordance with the Purchaser 401(k) plan terms and in the plan administrator's sole discretion.
Appears in 1 contract
Employees and Offers of Employment. (a) No later than ten (10) Business Days prior to the anticipated Closing Date, Purchaser shall, On or shall cause one of its Affiliates to, make an offer (which shall be memorialized in writing) of at-will employment, on terms and conditions consistent with the requirements set forth in Section 8.01(b), to each Employee (whether full-time or part-time, actively employed, or on short-term disability leave, authorized leave of absence, workers’ compensation leave, military service or lay-off with recall rights as of the Closing) to become employed by Purchaser or one of its Affiliates effective as of the Closing. Each Employee who does not specifically decline such offer of employment and commences employment with Purchaser pursuant to this Section 8.01(a) is hereinafter referred to as a “Transferred Employee.”
(b) Each offer of employment contemplated by Section 8.01(a) shall, subject to the additional requirements of any at-will employment contract, provide that the Employee will (i) have duties and responsibilities that are no less favorable than those that applied to such Employee immediately prior to the Closing Date, Buyer may, at its sole discretion, offer employment on an at-will basis to all of the Business Employees. Buyer shall provide to Seller a complete and accurate list of the Transferred Employees at least two (2) business days prior to Closing.
(b) Seller agrees to (i) use reasonable efforts to cooperate with Buyer in Buyer’s recruitment of the Business Employees, (ii) have a principal place terminate the employment of the Transferred Employees with Seller (or, alternatively, at the discretion of Seller, cause the Transferred Employee to voluntarily terminate his employment at a location within the United States, and (iii) for the one-year period commencing on the Closing Date, be entitled to receiveand, in each case as applicableconnection therewith, (ASeller will accept the resignation of the Transferred Employees) the same base salary on or hourly base wage rate as in effect for such Employee immediately prior to the Closing Date; (B) an annual cash target bonus opportunity that is at least equal to the annual cash target bonus opportunity in effect for such Employee immediately prior to the Closing Date, subject to terms and conditions substantially similar to those in effect for similarly situated employees of Purchaser and its Affiliates; and (C) employee benefits (including retirement benefits) that are substantially similar in the aggregate to the employee benefits (including retirement benefits, but excluding any defined benefit pension or equity-based benefits or compensation) made available to such Employee by Seller and its Affiliates immediately prior to the Closing Date. In additionSeller agrees to pay any and all liabilities with respect to each Business Employee, Purchaserincluding, but not limited to, all such liabilities relating to such termination, including, without limitation any payments and benefits due such Business Employees pursuant to accrued salary and wages, bonuses, commissions, pension, retirement, savings, health, welfare and other benefits and severance, payments or similar payments of the applicable AffiliateTransferred Employees, will cause excluding vacation accruals assumed by the Buyer in accordance with Section 2.03(e) , and (iii) provide to each written offer Transferred Employee any notice (which notice shall be reasonably acceptable to include Buyer) required under any law or regulations in respect of such other terms termination including, without limitation, the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and conditions as are necessary to ensure that Seller shall incur no Liability whatsoever under the federal Worker Federal Workers Adjustment and Retraining Notification Act or analogous state or local Law or any severance plan or arrangement maintained by Seller and applicable to the Employees(“WARN Act”).
(c) Purchaser Buyer agrees that it will make offers of employment to the Business Employees in good faith, with terms and conditions, including, but not limited to, salary and benefits, to be determined at the Buyer’s sole discretion. Nothing herein shall comply be construed as an offer of employment on other than an employee-at-will basis. Seller will make all reasonable efforts to assist Buyer in hiring all such Business Employees, and Seller will not take any action that would impede, hinder, interfere or otherwise compete with Buyer’s effort to hire any Transferred Employee or any other Business Employee. Buyer shall not assume responsibility for any Business Employee until such employee commences employment with Buyer, but in no event shall Buyer assume any responsibility for any commitment, obligation, duty or liability (i) of Seller to any Business Employee, or (ii) to any Business Employee that arose prior to the Closing Date, except as expressly set forth herein. Buyer shall not assume responsibility for any employee of Seller who is not a Transferred Employee and Seller agrees to continue to assume all Laws governing responsibilities, commitments and/or liabilities for any employee of Seller who is not a Transferred Employee.
(d) Seller shall use its commercially reasonable efforts (without, however, any requirement to pay monies or any other form of consideration) to assist Buyer in Buyer’s hiring of certain of Seller’s key Business Employees and in its entering into employment discrimination or consulting arrangements with them.
(e) Buyer shall employ the Transferred Employees following the Closing Date in accordance with the terms and conditions set forth in the employment relations in connection with its hiring processes and procedures for offer letters to be delivered to the Transferred Employees by the Buyer. Nothing herein shall prevent Buyer from terminating the employment of any such Transferred Employee.
(f) As soon as reasonably practicable after the Closing Date, Buyer shall take all reasonable action so that all Transferred Employees who accept employment with the Buyer after the Closing Date (“Hired Employees”) shall be entitled to participate in each employee benefit plan, program or arrangement of Buyer of general applicability (the “Buyer Benefit Plans”) to the same extent as similarly-situated employees of Buyer and its subsidiaries (it being understood that inclusion of the Hired Employees in the Buyer Benefit Plans may occur at different times with respect to different plans). Buyer shall, subject to any third party insurers consent, use its commercially reasonable efforts to cause each Buyer Benefit Plan in which the Hired Employees are eligible to participate to take into account for purposes of eligibility and vesting thereunder including, but not limited to, applicability of minimum waiting periods for participation, the service of such employees with the Seller.
(g) WARN. Any notice required under the WARN Act that is, has been or will be required of Seller to its employees or former employees by reason of its acts on or prior to the Closing Date, or by reason of the transaction consummation hereby, will be given by Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (ClearStory Systems, Inc.)
Employees and Offers of Employment. (a) No later than ten (10) Business Days prior to the anticipated Closing Date, Purchaser shall, On or shall cause one of its Affiliates to, make an offer (which shall be memorialized in writing) of at-will employment, on terms and conditions consistent with the requirements set forth in Section 8.01(b), to each Employee (whether full-time or part-time, actively employed, or on short-term disability leave, authorized leave of absence, workers’ compensation leave, military service or lay-off with recall rights as of the Closing) to become employed by Purchaser or one of its Affiliates effective as of the Closing. Each Employee who does not specifically decline such offer of employment and commences employment with Purchaser pursuant to this Section 8.01(a) is hereinafter referred to as a “Transferred Employee.”
(b) Each offer of employment contemplated by Section 8.01(a) shall, subject to the additional requirements of any at-will employment contract, provide that the Employee will (i) have duties and responsibilities that are no less favorable than those that applied to such Employee immediately prior to the Closing Date, Buyer may, at its sole discretion, offer employment on an at-will basis to all of the Business Employees. Buyer shall provide to Seller a complete and accurate list of the Transferred Employees at least two (2) business days prior to Closing.
(b) Seller agrees to (i) use reasonable efforts to cooperate with Buyer in Buyer’s recruitment of the Business Employees, (ii) have a principal place terminate the employment of the Transferred Employees with Seller (or, alternatively, at the discretion of Seller, cause the Transferred Employee to voluntarily terminate his employment at a location within the United States, and (iii) for the one-year period commencing on the Closing Date, be entitled to receiveand, in each case as applicableconnection therewith, (ASeller will accept the resignation of the Transferred Employees) the same base salary on or hourly base wage rate as in effect for such Employee immediately prior to the Closing Date; (B) an annual cash target bonus opportunity that is at least equal to the annual cash target bonus opportunity in effect for such Employee immediately prior to the Closing Date, subject to terms and conditions substantially similar to those in effect for similarly situated employees of Purchaser and its Affiliates; and (C) employee benefits (including retirement benefits) that are substantially similar in the aggregate to the employee benefits (including retirement benefits, but excluding any defined benefit pension or equity-based benefits or compensation) made available to such Employee by Seller and its Affiliates immediately prior to the Closing Date. In additionSeller agrees to pay any and all liabilities with respect to each Business Employee, Purchaserincluding, but not limited to, all such liabilities relating to such termination, including, without limitation any payments and benefits due such Business Employees pursuant to accrued salary and wages, bonuses, commissions, pension, retirement, savings, health, welfare and other benefits and severance, payments or similar payments of the applicable AffiliateTransferred Employees, will cause excluding vacation accruals assumed by the Buyer in accordance with Section 2.03(e) , and (iii) provide to each written offer Transferred Employee any notice (which notice shall be reasonably acceptable to include Buyer) required under any law or regulations in respect of such other terms termination including, without limitation, the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and conditions as are necessary to ensure that Seller shall incur no Liability whatsoever under the federal Worker Federal Workers Adjustment and Retraining Notification Act or analogous state or local Law or any severance plan or arrangement maintained by Seller and applicable to the Employees(“WARN Act”).
(c) Purchaser Buyer agrees that it will make offers of employment to the Business Employees in good faith, with terms and conditions, including, but not limited to, salary and benefits, to be determined at the Buyer’s sole discretion. Nothing herein shall comply be construed as an offer of employment on other than an employee-at-will basis. Seller will make all reasonable efforts to assist Buyer in hiring all such Business Employees, and Seller will not take any action that would impede, hinder, interfere or otherwise compete with Buyer’s effort to hire any Transferred Employee or any other Business Employee. Buyer shall not assume responsibility for any Business Employee until such employee commences employment with Buyer, but in no event shall Buyer assume any responsibility for any commitment, obligation, duty or liability (i) of Seller to any Business Employee, or (ii) to any Business Employee that arose prior to the Closing Date, except as expressly set forth herein. Buyer shall not assume responsibility for any employee of Seller who is not a Transferred Employee and Seller agrees to continue to assume all Laws governing responsibilities, commitments and/or liabilities for any employee of Seller who is not a Transferred Employee.
(d) Seller shall use its commercially reasonable efforts (without, however, any requirement to pay monies or any other form of consideration) to assist Buyer in Buyer’s hiring of certain of Seller’s key Business Employees and in its entering into employment discrimination or consulting arrangements with them.
(e) Buyer shall employ the Transferred Employees following the Closing Date in accordance with the terms and conditions set forth in the employment relations in connection with its hiring processes and procedures for offer letters to be delivered to the Transferred Employees by the Buyer. Nothing herein shall prevent Buyer from terminating the employment of any such Transferred Employee.
(f) As soon as reasonably practicable after the Closing Date, Buyer shall take all reasonable action so that all Transferred Employees who accept employment with the Buyer after the Closing Date (“Hired Employees”) shall be entitled to participate in each employee benefit plan, program or arrangement of Buyer of general applicability (the “Buyer Benefit Plans”) to the same extent as similarly-situated employees of Buyer and its subsidiaries (it being understood that inclusion of the Hired Employees in the Buyer Benefit Plans may occur at different times with respect to different plans). Buyer shall, subject to any third party insurers consent, use its commercially reasonable efforts to cause each Buyer Benefit Plan in which the Hired Employees are eligible to participate to take into account for purposes of eligibility and vesting thereunder including, but not limited to, applicability of minimum waiting periods for participation, the service of such employees with the Seller.
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