Employees and Employee Benefits (a) Seller shall be responsible for the payment of wages and other remuneration and compensation due to employees, independent contractors and consultants of Seller through the close of business on the day immediately prior to the Closing Date. Buyer shall offer employment to all employees of Seller effective on the Closing Date in accordance with the following terms (each such employee to whom an offer is required to be made pursuant to the terms hereof is referred to herein as a “Prospective Employee”):
(i) On a date prior to the Closing to be mutually agreed upon by Buyer and Seller, Buyer shall offer employment in writing pursuant to offer letters in form and substance as agreed to by Seller and Buyer (each such offer letter being an “Offer Letter” and the offer made pursuant to each such Offer Letter, an “Offer”) to each of the Prospective Employees. Each such Offer shall include provision for terms and conditions of employment, including total compensation and benefits, which are substantially similar, in the aggregate, to the terms and conditions of employment which Seller provides to such Prospective Employee at the time the Offer Letter is delivered; and will specify, inter alia, that:
(A) the Prospective Employee’s accrued service with Seller, and any predecessor of Seller, shall be recognized for all purposes;
(B) if the Offer is accepted by the Prospective Employee (which acceptance must be received prior to the Closing Date), their employment with Buyer will commence on the Closing Date (the “Employment Date”), subject to the recognition of service as set forth in Section 6.04(a)(i)(A) above; and
(C) the acceptance of the Offer by the Prospective Employee will be conditional on Closing occurring.
(ii) Seller shall have the right to require Buyer to provide clarification of, and if required to comply with the terms of this Agreement, amend such terms. Buyer shall exercise commercially reasonable efforts to persuade the Prospective Employees to accept such offers of employment.
(iii) A Prospective Employee who accepts Buyer’s Offer and commences employment with Buyer on the applicable Employment Date is hereinafter referred to as a "Hired Employee".
(iv) If an Offer is not accepted by a Prospective Employee prior to the Closing Date, or if an Offer is accepted by a Prospective Employee prior to the Closing Date but such Prospective Employee does not commence employment with Buyer on the Closing Date for any reason other than Buyer rescinding or terminating the Offer prior to the Closing Date, Seller shall be entitled to terminate such Prospective Employee effective as of the Closing Date and Seller shall be responsible for all severance liabilities and obligations relating to all such terminated Prospective Employees.
(b) Seller shall (i) assist Buyer in contacting and communicating with employees, independent contractors and consultants of Seller, and delivering offers of employment to those employees, independent contractors and consultants Buyer makes offers to, (ii) encourage those employees, independent contractors and consultants who receive offers from Buyer to accept the offer and work for Buyer, and (iii) assist Buyer in contacting and communicating with any Prospective Employee who is absent from work by reason of vacation, scheduled day off or any other absence or leave before the Closing Date for the purposes set out in (i) immediately preceding.
(c) Without limitation, Seller shall be responsible for, and shall pay, all wages and earnings, including payment for accrued but unused vacation, for all of the Prospective Employees earned or accrued up to the Closing Date, whether or not paid or payable before or after the Closing Date. Buyer shall be responsible for all wages and earnings with respect to the Hired Employees accrued and earned on and after the Closing Date.
(d) With respect to the group benefit plans provided by Buyer to the Hired Employees:
(i) Seller shall retain responsibility for payment of all covered medical and dental claims under the terms of the relevant Seller plan for Seller employees, to the extent such claims were incurred prior to the Closing Date and/or during a continuous period of hospitalization commencing prior to and ending after the Closing Date. For these purposes, medical and dental claims shall be deemed to have been incurred on the date of treatment (or the date the prescription is written, as the case may be). Buyer shall be responsible for payment of all such claims incurred on or after the Closing Date with respect to Hired Employees, payable to such employees (or any covered dependent of such employee) under the terms of a corresponding group benefit plan.
(ii) Seller shall retain responsibility for short-term and long-term disability benefit claims for such Hired Employees who, prior to the Closing Date, qualified for short-term or long-term disability benefits under the terms of the relevant Seller employee plan, and for long-term disability benefits for such Hired Employees who, prior to the Closing Date, qualified for short-term disability benefits under the terms of the relevant Seller employee plan where such long-term disability arose as a consequence of, and immediately following, the short-term disability period and is applicable to the same injury or disease, in each case as determined by the relevant third party short-term and/or long-term disability benefits provider.
(iii) Buyer shall be responsible for payment of all other short-term and long-term disability benefit claims incurred on and following the Closing Date with respect to such Hired Employees, payable to such employees (or any covered dependent of such employee) under the terms of a corresponding group benefit plan.
(e) Nothing contained in this Section 6.04, express or implied, shall or be construed to (i) constitute an amendment to or any other modification of any Seller employee benefit plan, program or policy; (ii) create any third-party beneficiary rights in any Person; (iii) require Buyer to continue any particular Seller employee benefit plan, program or policy or other employee compensation or benefit plan or arrangements; (iv) limit any Person’s right to amend or terminate any Seller plan or other employment benefit or compensation plan or arrangement; or (v) confer on any or any other Person, including any Hired Employee, any right to employment or continued employment or continued service or any term or condition of employment, or constitute or create an employment or other service agreement with any employee, independent contractor, consultant or other service provider of Seller or of Buyer or any of their Affiliates.
(f) In addition to the other indemnities provided for herein, Buyer shall, subject to and in accordance with the provisions of this Agreement, indemnify and hold harmless Seller from and against any and all damages which Seller incurs in connection with:
(i) all obligations and Liabilities relating to each Hired Employee which Buyer has agreed to assume, perform or discharge pursuant to the terms of this Agreement, including Section 6.04;
(ii) Buyer’s unauthorized disclosure, in violation of this Agreement, of Seller's employee records or other records maintained by Seller that have been provided to Buyer.
(g) Buyer agrees that as of the applicable Employment Date, in accordance with the terms of the applicable Offer Letter, the Hired Employees will participate immediately in each of Buyer’s employee benefit plans and programs which are generally applicable to Buyer’s employees (or, at the time they may retire, will be eligible to participate in the employee benefit plans and programs for which they qualify based upon their age and service and which are generally applicable to employees of Buyer who have retired) and that all Hired Employees shall be given credit for the corresponding service recognized by Seller prior to the Closing Date for all applicable purposes (including participation eligibility, vesting and benefit eligibility) under Seller’s existing and future employee benefit plans and programs.
