Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement. (b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan. (c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever. (d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 4 contracts
Samples: Merger Agreement (Nitro Petroleum Inc.), Merger Agreement (Core Resource Management, Inc.), Merger Agreement (Nitro Petroleum Inc.)
Employees; Benefit Plans. (a) During Following the Closing Date and except to the extent an alternative treatment is set forth in this Section 5.14, CZFS may choose to maintain any or all of the HVBC Benefit Plans in its sole discretion and HVBC shall cooperate with CZFS in order to effect any plan terminations to be made as of the Effective Time. For the period commencing at the Effective Time and ending on the date which is FIVE (“5”) 12 months from after the Effective Time (or if earlieruntil the applicable Continuing Employee’s earlier termination of employment), CZFS shall provide, or cause to be provided, to each employee of HVBC or HVB who continues with the date Surviving Bank as of the employee's termination Closing Date (a “Continuing Employee”) (i) a base salary or a base rate of employment with Parent and its Subsidiaries), Parent shall cause pay at least equal to the Surviving Corporation and each base salary or base rate of its Subsidiaries, as applicable, pay provided to provide the similarly situated employees of the Company CZFS or any Subsidiary of CZFS and its Subsidiaries who remain employed immediately after the Effective Time (collectivelyii) other benefits (other than severance, the "Company Continuing Employees"termination pay or equity compensation) with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, at least substantially comparable in the aggregate, no less favorable than aggregate to the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date to similarly situated employees of this Agreement.
(b) With respect to CZFS or any "Subsidiary of CZFS. For any HVBC Benefit Plan terminated for which there is a comparable employee benefit or compensation plan" as defined in Section 3(3) , program, policy, agreement or arrangement of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent CZFS or any of its Subsidiaries (collectivelya “CZFS Benefit Plan”) of general applicability, "Parent CZFS shall take all commercially reasonable action so that Continuing Employees shall be entitled to participate in such CZFS Benefit Plans") plan to the same extent as similarly-situated employees of CZFS (it being understood that inclusion of the employees of HVBC and HVB in the CZFS Benefit Plans may occur at different times with respect to different plans). CZFS shall cause each CZFS Benefit Plan in which any Company Continuing Employees will are eligible to participate effective as to take into account for purposes of eligibility and vesting under the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes CZFS Benefit Plans (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan accrual) the service of such employees with HVBC or (ii) benefit accrual purposesHVB to the same extent as such service was credited for such purpose by HVBC or HVB; provided, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits. Nothing herein shall limit the ability of CZFS to amend or terminate any of the HVBC Benefit Plans or CZFS Benefit Plans in accordance with their terms at any time; provided, however, that CZFS shall continue to maintain the HVBC Benefit Plans (Bother than stock based or incentive plans) for which there is a comparable CZFS Benefit Plan until the HVBC Employees are permitted to participate in the CZFS Benefit Plans, unless such service was CZFS Benefit Plan has been frozen or terminated with respect to similarly situated employees of CZFS or any Subsidiary of CZFS. Following the Closing Date, CZFS shall honor, in accordance with HVBC’s policies and procedures in effect as of the date hereof, any employee expense reimbursement obligations of HVBC for out-of-pocket expenses incurred during the calendar year in which the Closing occurs by any Continuing Employee.
(b) Without limiting the generality of Section 5.14(a), if requested by CZFS in writing not recognized less than thirty (30) days prior to the Closing, HVBC or HVB, as applicable, shall take all actions necessary to cease contributions to and terminate each HVBC Benefit Plan that is intended to qualify under Code Section 401(k) (each, an “HVBC 401(k) Plan”), and to adopt written resolutions, the form and substance of which shall be reasonably satisfactory to CZFS, to terminate each such HVBC 401(k) Plan; provided, however, that each such HVBC 401(k) Plan termination may be made contingent upon the consummation of the transactions contemplated by this Agreement. In the event CZFS elects to terminate the HVBC 401(k) Plan prior to the Closing Date, CZFS shall take any and all actions as may be required to permit Continuing Employees to participate in a CZFS Benefit Plan that is intended to qualify under Code Section 401(k) (a “CZFS 401(k) Plan”) immediately following the Closing Date and to permit Continuing Employees to roll over their account balances in the HVBC 401(k) Plan, including any participant loans under the corresponding Company Employee HVBC 401(k) Plan, into the CZFS 401(k) Plan.
(c) This Section 5.07 CZFS shall either continue to maintain the medical, dental, vision, prescription drug, disability plan or life insurance plans of HVBC or HVB, as applicable, following the Effective Time or take any and all actions as may be required to ensure that Continuing Employees are eligible to participate in CZFS Benefit Plans immediately following the Effective Time so that no Continuing Employee has a gap in medical, dental, vision, prescription drug, disability plan or life insurance coverage. If employees of HVBC or HVB become eligible to participate in a medical, dental, vision, prescription drug, disability plan or life insurance plan of CZFS upon termination of such plan of HVBC or HVB, CZFS shall use all commercially reasonable efforts to cause each such plan to (i) waive any preexisting condition limitations to the extent such conditions are covered under the applicable CZFS plan, (ii) provide credit under such plans for any deductible, co-payment and out-of-pocket expenses incurred by the employees and their beneficiaries during the portion of the calendar year prior to such participation and (iii) waive any waiting period limitation, actively-at-work requirement or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous HVBC Benefit Plan prior to the Effective Time.
(d) CZFS agrees to pay to each employee of HVBC or HVB that is not covered by a written employment or severance agreement and either (i) is not offered or retained in comparable employment (i.e., a position of generally similar job description, responsibilities and pay where the employee is not required to commute a distance greater than thirty (30) miles more than the employee’s commute as of the Effective Time) by CZFS or any of its Subsidiaries after the Effective Time, or (ii) is terminated by CZFS or any of its Subsidiaries, without cause, within twelve (12) months following the Effective Time, a severance payment equal to two (2) weeks of his or her then current base salary multiplied by the number of total completed years of service with HVBC or HVB; provided, however, that the minimum severance payment shall equal four (4) weeks of his or her base salary and the maximum severance payment shall not exceed twenty-six (26) weeks of his or her base salary; and provided further, that such employee enters into a release of claims in a form reasonably satisfactory to CZFS and that such employee does not voluntarily leave employment with HVBC or HVB prior to the Effective Time. The severance payment will be payable in a cash lump sum within fifteen (15) days following the date that the release of claims becomes irrevocable.
(e) To the extent necessary, CZFS and HVBC may provide a retention pool as mutually agreed by CZFS and HVBC to enable CZFS and HVBC to provide retention incentives to certain employees of HVBC or HVB who are not covered by a written employment agreement, the recipients and amounts to be mutually determined by CZFS and HVBC. Such designated employees will enter into retention agreements to be agreed upon by CZFS and HVBC.
(f) Subject to the occurrence of the Closing, the HVB ESOP shall be binding upon and inure solely terminated by HVB prior to the benefit of each Closing Date. In connection with the termination of the parties HVB ESOP, all plan accounts shall be fully vested, all outstanding indebtedness of the HVB ESOP shall be repaid by delivering a sufficient number of unallocated shares of HVBC Stock to HVBC, at least five (5) Business Days prior to the Effective Time, all remaining shares of HVBC Stock held by the HVB ESOP shall be converted into the right to receive the Merger Consideration, and the balance of the unallocated shares and any other unallocated assets remaining in the HVB ESOP after repayment of the HVB ESOP loan shall be allocated as earnings to the accounts of the HVB ESOP participants who are employed as of the date of termination of the HVB ESOP based on their account balances under the HVB ESOP as of the date of termination of the HVB ESOP and distributed to HVB ESOP participants after the receipt of a favorable determination letter from the IRS. Prior to the Effective Time, HVB shall take all such actions as are necessary (determined in consultation with CZFS) to submit the application for favorable determination letter in advance of the Effective Time. HVB will adopt such amendments to the HVB ESOP to effect the provisions of this Section 5.14(f). Promptly following the receipt of a favorable determination letter from the IRS regarding the qualified status of the HVB ESOP upon its termination, the account balances in the HVB ESOP shall either be distributed to participants and beneficiaries or transferred to an eligible tax-qualified retirement plan or individual retirement account as a participant or beneficiary may direct; provided however, that nothing contained herein shall delay the distribution or transfer of account balances in the HVB ESOP in the ordinary course for reasons other than the termination of such plan. Prior to the Closing Date, HVB shall provide CZFS with the final documentation evidencing that the actions contemplated herein have been effectuated. Notwithstanding anything herein to the contrary, HVB shall continue to accrue and make contributions to the HVB ESOP trust from the date of this Agreement through the termination date of the HVB ESOP in an amount sufficient (but not to exceed) the loan payments which become due in the ordinary course on the outstanding loans to the HVB ESOP prior to the termination of the HVB ESOP and shall make a pro-rated payment on the HVB ESOP loan for the 2023 plan year through and including the end of the calendar month immediately preceding the Closing, prior to the termination of the HVB ESOP.
(g) Nothing contained in this Agreement, and nothing in this Section 5.07, express expressed or implied, shall confer upon (i) give any person, other Person than the parties hereto, any rights or remedies of any nature whatsoever whatsoever, including any right to continued employment or service, under or by reason of this Section 5.07. Nothing contained herein5.14, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter cause any third party beneficiary rights in any current or limit former employee, director, other individual service provider of HVBC or any of its Subsidiaries to enforce the ability provisions of the Surviving Corporationthis Section 5.14 or any other matter related thereto, Parent or (iii) be construed as an amendment to any HVBC Benefit Plan, CZFS Benefit Plan, or other employee benefit plan of CZFS, FCCB, HVBC or any of their respective Affiliates Affiliates, or be construed to amend, modify prohibit the amendment or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits termination of any nature or kind whatsoeversuch plan.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 3 contracts
Samples: Merger Agreement (HV Bancorp, Inc.), Merger Agreement (HV Bancorp, Inc.), Merger Agreement (Citizens Financial Services Inc)
Employees; Benefit Plans. (a) The Surviving Corporation and its Affiliates will honor all Company Benefit Plans (including any severance, retention, change of control and similar plans, agreements, offer letters, offer summaries and other written arrangements, but excluding any commitment, understanding or promise to grant equity compensation) in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be expressly permitted by the terms of such Company Benefit Plans. During the period commencing at from the Effective Time and ending on Date through the date which is FIVE first (“5”1st) months from anniversary of the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries“Continuation Period”), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to will provide the all employees of the Company and its Subsidiaries who remain employed immediately after as of the Effective Time who continue employment with the Surviving Corporation (“Employees”) with benefits under employee benefit plans (within the meaning of Section 3(3) of ERISA) and other perquisites and fringe benefits (collectively, the "Company Continuing Employees") with base salary“Employee Benefits”), target bonus opportunities (excluding equity-other than equity based compensation), and employee benefits that are, are no less favorable in the aggregate, no less favorable on a group rather than an individual basis, than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits Employee Benefits provided by the Company and its Subsidiaries on as in effect at the date Effective Time; provided, however, that, subject to the requirements of the portion of this Agreementsentence that precedes this proviso, nothing herein shall (i) require that the Surviving Corporation maintain or continue any particular Company Benefit Plan or (ii) interfere with the Surviving Corporation’s right or obligation to make changes to any Company Benefit Plan or New Plan. Notwithstanding anything to the contrary set forth herein, subject to Section 5.6(a), nothing herein shall preclude the Surviving Corporation from terminating the employment of any Employee.
(b) With respect to any "For all purposes under the employee benefit plan" as defined in Section 3(3) plans of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation toand its Affiliates providing benefits to any Employees after the Effective Time (the “New Plans”), recognize the Surviving Corporation shall cause each Employee to receive credit for all service of the Company Continuing Employees with the Company and its Affiliates before the Effective Time (including predecessor or acquired entities or any of other entities with respect to which the Company and its Subsidiaries, as Affiliates have given credit for prior service) to the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) extent recognized in any Parent similar Company Benefit Plan Plans in which such Company Continuing Employees may be eligible Employee participated immediately prior to participate after the Effective Time; Closing (iiisuch service, “Pre-Closing Service”) Continuing Company shall honor for all consulting or advisory agreement previously entered intopurposes, or employment pending equity awards stock options or warrants including determining eligibility to purchase equity based upon performance. providedparticipate, that such service shall not be recognized level of benefits and vesting to the extent that (A) such recognition credit would result in a duplication of accrual of benefits for the same period of service. In addition, and without limiting the generality of the foregoing, (A) each Employee immediately will be eligible to participate, without any waiting time, in any New Plan to the extent coverage under such New Plan replaces coverage under a similar or comparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”), and (B) for purposes of each New Plan providing medical, dental, pharmaceutical, vision and/or disability benefits to any Employee, the Surviving Corporation will cause or use its commercially reasonable efforts to cause all pre-existing condition exclusions and actively-at-work requirements of such service was not recognized New Plan to be waived for such Employee and his or her covered dependents, to the extent any such exclusions or requirements were waived or were inapplicable under any similar or comparable Company Benefit Plan, and the Surviving Corporation will cause any eligible expenses incurred by such Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Employee’s participation in the corresponding Company New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(c) This The provisions of this Section 5.07 shall be binding upon and inure 5.6 are solely to for the benefit of each of the parties to this Agreement, and nothing in this Section 5.07no current or former employee, express director, independent contractor or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability consultant of the Surviving Corporation, Parent Company or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee its Subsidiaries or any other Person to associated therewith shall be regarded as a third party beneficiary of this Section 5.6. No provision of this Agreement shall be construed as amending any continued employment with Company Benefit Plan and any provisions hereof regarding Company Benefit Plans shall not become effective unless and until the Surviving Corporation, Parent Company Board or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect other entity overseeing such Company Benefit Plans takes such action as they deem necessary and appropriate to matters described in this Section 5.07, implement such provisions. Neither the Company will not send Board’s nor any written notices other entities’ approval of this Agreement, nor the execution of this Agreement by an officer or other written communication materials to Company Employees without director of the prior written consent of ParentCompany, shall constitute the required action.
Appears in 3 contracts
Samples: Merger Agreement (Emageon Inc), Merger Agreement (Health Systems Solutions Inc), Merger Agreement (Health Systems Solutions Inc)
Employees; Benefit Plans. (a) During the period commencing at All Target Employees who prior to the Effective Time and ending on are employees of the date which is FIVE (“5”) months from Target will remain employees of the Surviving Corporation immediately following the Effective Time (or if earlierTime, and the date consummation of the employee's termination of employment with Parent and its Subsidiaries)transactions contemplated hereby will not change that status.
(b) For the twelve (12) month period immediately following the Effective Time, Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide to each Target Employee who remains employed by the employees Surviving Corporation substantially similar compensation and for the remainder of the Company and its Subsidiaries who remain employed current benefit year employee benefits as those in effect for each such Target Employee as of immediately prior to the Effective Time. Additionally, the Surviving Corporation will not relocate any Target Employee outside of a reasonable commuting distance from the Target Employee’s home for at least twelve (12) months after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this AgreementTime.
(bc) With respect to To the extent that any "Target Employee will participate in any employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent , arrangement or any of its Subsidiaries, excluding both any retiree healthcare plans or programs policy maintained by Parent or any of its Subsidiaries following the Effective Time: (i) such Target Employee will receive credit for all purposes (other than accrual of benefits under a defined benefit pension plan) for service with the Target, (ii) with respect to medical, dental, vision or other health benefits or disability or life insurance benefits, Parent and its Subsidiaries will use their best efforts to cause any equity compensation arrangements maintained and all pre-existing condition limitations, waiting periods and evidence of insurability requirements to be waived with respect to such Target Employees and eligible dependents, (iii) Parent and its Subsidiaries will use their commercially reasonable efforts to provide credit for any co-payments, deductible payments, premium amounts and similar payments or expenses incurred by the Target Employees in the plan year that includes the Effective Time.
(d) If Parent or any of its Subsidiaries terminates the employment of any Target Employee within six (collectively6) months after the Effective Time other than for cause or due to the death or disability of an employee, "Parent Benefit Plans"and its Subsidiaries will pay such Target Employee as soon as practicable after termination a lump sum amount equal to (i) the number of weeks remaining until the end of such six (6) month period multiplied by such Target Employee’s weekly salary plus (ii) such amount of severance he or she would receive in which accordance with Target’s past practices; provided, however, that no Target Employee who is entitled to severance under a separate arrangement with the Target will be entitled to any Company Continuing Employees payments under this Section 7.07(d) and, instead, will participate effective as only be entitled to the benefits provided under such arrangement.
(e) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Agreement, whether express or implied, will (i) constitute or create an employment agreement with any employee of the Effective TimeTarget, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement arrangement, (iii) other than as required by applicable Law, obligate Parent or any of its Subsidiaries to (A) maintain any particular benefit plan or (iiB) shall alter retain the employment of any particular employee, or limit (iv) give any third-party the ability right to enforce any of the provisions of this Agreement, except as expressly provided in Section 7.08.
(f) In the event Parent, the Surviving Corporation, Parent Corporation or any of their respective Affiliates successors or assigns (i) consolidates with or merges into any other Person and will not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to amendany Person, modify or terminate any benefit planthen, programand in either such case, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree proper provision will be made so that the terms successors and assigns of Parent or the Surviving Corporation, as the case may be, will assume all of the obligations set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever7.07.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 3 contracts
Samples: Merger Agreement (Clearlake Capital Partners Ii Lp), Merger Agreement (Veramark Technologies Inc), Merger Agreement (Veramark Technologies Inc)
Employees; Benefit Plans. (a) During the period commencing at on the Effective Time Closing Date and ending on the date which is FIVE (“5”) 12 months from following the Effective Time Closing Date (or if earlier, the date of the employee's ’s termination of employment with Parent and its Subsidiariesthe Company), Parent the Buyer shall and shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, Company to provide the employees of the Company and its Subsidiaries each employee who remain remains employed immediately after the Effective Time Closing (collectively, the "“Company Continuing Employees"Employee”) with with: (i) base salary, salary or hourly wages which are no less than the base salary or hourly wages provided by the Company immediately prior to the Closing; (ii) target bonus opportunities (excluding equity-based compensation), and employee benefits that areif any, in the aggregate, which are no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits ) provided by the Company immediately prior to the Closing; (iii) retirement and its Subsidiaries on welfare benefits that are no less favorable in the date of this Agreementaggregate than those provided by the Company immediately prior to the Closing; and (iv) severance benefits that are no less favorable than the practice, plan or policy in effect for such Company Continuing Employee immediately prior to the Closing.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent the Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries Affiliates (collectively, "Parent “Buyer Benefit Plans"”) in which any Company Continuing Employees will participate effective as of the Effective TimeClosing, Parent the Buyer shall, or shall cause the Surviving Corporation its Affiliates to: (i) waive all active-at-work requirements, waiting periods, evidence of insurability requirements, coverage exclusions, pre-existing condition limitations on coverage (except for long-term disability insurance), or similar limitations with respect to participation and coverage requirements applicable to each such Company Continuing Employee; (ii) recognize all service of the such Company Continuing Employees Employee with the Company or any of its Subsidiariesfor eligibility, as the case may be as if such service were with Parent, for vesting and eligibility accrual purposes (but not for (i) purposes to the same extent said service was recognized under a similar Plan as of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective TimeClosing Date; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, however that such service the foregoing shall not be recognized apply to the extent that (A) such recognition it would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Planbenefits.
(c) This Section 5.07 7.4 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.077.4, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.077.4. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 7.4 shall not create any right in any Company Employee employee or any other Person to any continued employment with the Surviving CorporationCompany, Parent the Buyer or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 3 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Standex International Corp/De/), Stock Purchase Agreement (Standex International Corp/De/)
Employees; Benefit Plans. (a) During the period commencing at Following the Effective Time Time, CenterState shall maintain or cause to be maintained employee benefit plans and ending compensation opportunities for the benefit of employees who are full time employees of HCBF or any of its Subsidiaries on the date which is FIVE Closing Date (“5Covered Employees”) months from that provide employee benefits and compensation opportunities which, in the Effective Time (aggregate, are substantially comparable to the employee benefits and compensation opportunities that are made available on a uniform and non-discriminatory basis to similarly situated employees of CenterState or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable; provided, however, that in no event shall any Covered Employee be eligible to provide participate in any closed or frozen plan of CenterState or its Subsidiaries. CenterState shall give the employees of the Company Covered Employees full credit for their prior service with HCBF and its Subsidiaries who remain employed immediately after the Effective Time (collectivelyi) for purposes of eligibility (including initial participation and eligibility for current benefits) and vesting under any qualified or non-qualified employee benefit plan maintained by CenterState and in which Covered Employees may be eligible to participate and (ii) for all purposes under any welfare benefit plans, the "Company Continuing Employees") with base salaryvacation plans, target bonus opportunities (excluding equity-based compensation), severance plans and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided similar arrangements maintained by the Company and its Subsidiaries on the date of this AgreementCenterState.
(b) With respect to any "employee benefit plan of CenterState that is a health, dental, vision or other welfare plan in which any Covered Employee is eligible to participate, for the plan year in which such Covered Employee is first eligible to participate, CenterState or its applicable Subsidiary shall use its commercially reasonable efforts to (i) cause any pre-existing condition limitations or eligibility waiting periods under such CenterState or Subsidiary plan to be waived with respect to such Covered Employee and his or her covered dependents to the extent such condition was or would have been covered under the HCBF Benefit Plan in which such Covered Employee participated immediately prior to the Effective Time, and (ii) recognize any health, dental, vision or other welfare expenses incurred by such Covered Employee and his or her covered dependents in the year that includes the Closing Date (or, if later, the year in which such Covered Employee is first eligible to participate) for purposes of any applicable copayment, deductibles and annual out-of-pocket expense requirements under any such health, dental, vision or other welfare plan" .
(c) Prior to the Effective Time, HCBF shall take, and shall cause its Subsidiaries to take, all actions requested by CenterState that may be necessary or appropriate to, conditioned on the occurrence of the Effective Time, (i) cause one or more HCBF Benefits Plans to terminate as defined in Section 3(3of the Effective Time, or as of the date immediately preceding the Effective Time, (ii) cause benefit accruals and entitlements under any HCBF Benefit Plan to cease as of ERISA the Effective Time, or as of the date immediately preceding the Effective Time, (iii) cause the continuation on and after the Effective Time of any contract, arrangement or insurance policy relating to any HCBF Benefit Plan for such period as may be requested by CenterState, or (iv) facilitate the merger of any HCBF Benefit Plan into any employee benefit plan maintained by Parent CenterState or an CenterState Subsidiary. All resolutions, notices, or other documents issued, adopted or executed in connection with the implementation of this Section 5.11(c) shall be subject to CenterState’s reasonable prior review and approval, which shall not be unreasonably withheld, conditioned or delayed.
(d) Nothing in this Section 5.11 shall be construed to limit the right of CenterState or any of its Subsidiaries (including, following the Closing Date, HCBF and its Subsidiaries) to amend or terminate any HCBF Benefit Plan or other employee benefit plan, excluding both to the extent such amendment or termination is permitted by the terms of the applicable plan, nor shall anything in this Section 5.11 be construed to require CenterState or any retiree healthcare plans of its Subsidiaries (including, following the Closing Date, HCBF and its Subsidiaries) to retain the employment of any particular Covered Employee for any fixed period of time following the Closing Date, and the continued retention (or termination) by CenterState or any of its Subsidiaries of any Covered Employee subsequent to the Effective Time shall be subject in all events to CenterState’s or its applicable Subsidiary’s normal and customary employment procedures and practices, including customary background screening and evaluation procedures, and satisfactory employment performance.
(e) If, within six (6) months after the Effective Time, any Covered Employee is terminated by CenterState or its Subsidiaries other than “for cause” or as a result of unsatisfactory job performance, then CenterState shall pay severance to such Covered Employee in an amount equal to two (2) weeks of base salary for each twelve (12) months of such Covered Employee’s prior employment with HCBF or its Subsidiaries; provided, however, that in no event will the total amount of severance for any single Covered Employee be less than four (4) weeks of such base salary nor greater than twenty-six (26) weeks of such base salary. Any severance to which a Covered Employee may be entitled in connection with a termination occurring more than six (6) months after the Effective Time will be as set forth in the severance policies of CenterState and its Subsidiaries as then in effect.
(f) At the Effective Time, CenterState shall assume the obligations of HCBF under each HCBF Stock Option outstanding at the Effective Time and, except with respect to the adjustments described in Section 2.02, each such HCBF Stock Option shall remain in effect in accordance with its terms, including with respect to vesting.
(g) At the Effective Time, all accrued and unused sick time for all employees of HCBF and its Subsidiaries and all accrued and unused vacation time for all employees of HCBF and its Subsidiaries shall be accorded such treatment as set forth in CenterState Disclosure Schedule 5.11(g). HCBF Disclosure Schedule 5.11(g) sets forth accrued sick time payment information as of July 31, 2017.
(h) Prior to the Effective Time, HCBF shall (i) cause the termination of all salary continuation and supplemental executive retirement plans, programs maintained by Parent or and agreements between HCBF and/or any of its Subsidiaries and any equity compensation arrangements maintained by Parent officer or any of its Subsidiaries (collectivelyemployee, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposespay all amounts due its officers, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized directors and employees pursuant to the extent that (Achange in control provisions applicable under any HCBF Benefit Plan. HCBF Disclosure Schedule 5.11(h) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall sets forth all payments to be binding upon and inure solely to the benefit of each of the parties made by HCBF pursuant to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever5.11(h).
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 3 contracts
Samples: Merger Agreement (CenterState Banks, Inc.), Merger Agreement (HCBF Holding Company, Inc.), Merger Agreement (CenterState Banks, Inc.)
Employees; Benefit Plans. (a) During the period commencing at Following the Effective Time Time, CenterState shall maintain or cause to be maintained employee benefit plans and ending compensation opportunities for the benefit of employees who are full time employees of Sunshine or its Subsidiary on the date which is FIVE Closing Date (“5Covered Employees”) months from that provide employee benefits and compensation opportunities which, in the Effective Time (aggregate, are substantially comparable to the employee benefits and compensation opportunities that are made available on a uniform and non-discriminatory basis to similarly situated employees of CenterState or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable; provided, however, that in no event shall any Covered Employee be eligible to provide participate in any closed or frozen plan of CenterState or its Subsidiaries. CenterState shall give the employees of the Company Covered Employees full credit for their prior service with Sunshine and its Subsidiaries who remain employed immediately after the Effective Time Subsidiary (collectivelyi) for purposes of eligibility (including initial participation and eligibility for current benefits) and vesting under any qualified or non-qualified employee benefit plan maintained by CenterState and in which Covered Employees may be eligible to participate and (ii) for all purposes under any welfare benefit plans, the "Company Continuing Employees") with base salaryvacation plans, target bonus opportunities (excluding equity-based compensation), severance plans and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided similar arrangements maintained by the Company and its Subsidiaries on the date of this AgreementCenterState.
(b) With respect to any "employee benefit plan of CenterState that is a health, dental, vision or other welfare plan in which any Covered Employee is eligible to participate, for the plan year in which such Covered Employee is first eligible to participate, CenterState or its applicable Subsidiary shall use its commercially reasonable efforts to (i) cause any pre-existing condition limitations or eligibility waiting periods under such CenterState or Subsidiary plan to be waived with respect to such Covered Employee and his or her covered dependents to the extent such condition was or would have been covered under the Sunshine Benefit Plan in which such Covered Employee participated immediately prior to the Effective Time, and (ii) recognize any health, dental, vision or other welfare expenses incurred by such Covered Employee and his or her covered dependents in the year that includes the Closing Date (or, if later, the year in which such Covered Employee is first eligible to participate) for purposes of any applicable copayment, deductibles and annual out-of-pocket expense requirements under any such health, dental, vision or other welfare plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or . Neither CenterState nor any of its Subsidiaries shall terminate the existing coverage of any Covered Employee or his or her dependents under any of the Sunshine or Sunshine Subsidiary health plans prior to the time such Covered Employees and their dependents become eligible to participate in the health plans, programs and benefits common to all employees of CenterState or any equity compensation arrangements CenterState Subsidiary and their dependents.
(c) Prior to the Effective Time, Sunshine shall take, and shall cause its Subsidiary to take, all actions requested by CenterState that may be necessary or appropriate to (i) cause one or more Sunshine Benefits Plans to terminate as of the Effective Time, or as of the date immediately preceding the Effective Time, (ii) cause benefit accruals and entitlements under any Sunshine Benefit Plan to cease as of the Effective Time, or as of the date immediately preceding the Effective Time, (iii) cause the continuation on and after the Effective Time of any contract, arrangement or insurance policy relating to any Sunshine Benefit Plan for such period as may be requested by CenterState, or (iv) facilitate the merger of any Sunshine Benefit Plan into any employee benefit plan maintained by Parent CenterState or a CenterState Subsidiary. All resolutions, notices, or other documents issued, adopted or executed in connection with the implementation of this Section 5.11(c) shall be subject to CenterState’s reasonable prior review and approval, which shall not be unreasonably withheld, conditioned or delayed. If CenterState requires Sunshine to terminate a medical plan having a flexible spending arrangement (“FSA”) under Code Section 125, Sunshine and each of its Subsidiaries may continue its FSA through the Effective Time.
(d) Nothing in this Section 5.11 shall be construed to limit the right of CenterState or any of its Subsidiaries (collectivelyincluding, "Parent following the Closing Date, Sunshine and its Subsidiary) to amend or terminate any Sunshine Benefit Plans"Plan or other employee benefit plan, to the extent such amendment or termination is permitted by the terms of the applicable plan, nor shall anything in this Section 5.11 be construed to require CenterState or any of its Subsidiaries (including, following the Closing Date, Sunshine and its Subsidiary) to retain the employment of any particular Covered Employee for any fixed period of time following the Closing Date, and, except as otherwise provided pursuant to Section 6.03(h), the continued retention (or termination) by CenterState or any of its Subsidiaries of any Covered Employee subsequent to the Effective Time shall be subject in all events to CenterState’s or its applicable Subsidiary’s normal and customary employment procedures and practices, including customary background screening and evaluation procedures, and satisfactory employment performance.
(e) If, within six (6) months after the Effective Time, unless otherwise addressed in an employment agreement entered into with CenterState Bank, any Covered Employee who is terminated by CenterState or its Subsidiaries other than “for cause” (as defined under the policies of CenterState and/or its Subsidiaries) or resigns because he or she was offered a position with a material reduction in rate of base pay or that is outside a 50-mile radius of the current address of his or her primary work location at Sunshine, then CenterState shall pay severance to such Covered Employee in an amount equal to two (2) weeks of base salary for each twelve (12) months of such Covered Employee’s prior employment with Sunshine or its Subsidiary; provided, however, that in no event will the total amount of severance for any single Covered Employee be less than four (4) weeks of such base salary nor greater than twenty-six (26) weeks of such base salary. Any severance to which a Covered Employee may be entitled in connection with a termination occurring more than six (6) months after the Effective Time will be as set forth in the severance policies of CenterState and its Subsidiaries as then in effect.
(f) At the Effective Time, all accrued and unused sick time for all employees of Sunshine and its Subsidiary and all accrued and unused vacation time for all employees of Sunshine and its Subsidiary shall be accorded such treatment as set forth in CenterState Disclosure Schedule Section 5.11(f).
(g) Prior to the Effective Time, Sunshine shall, as directed by CenterState, (i) cause the termination of any Company Continuing Employees will participate effective salary continuation and supplemental executive retirement plans, programs and agreements between Sunshine and/or its Subsidiary and any officer or employee, and (ii) pay all amounts due its officers, directors and employees pursuant to the supplement executive retirement plans, programs and agreements and pursuant to the change in control provisions applicable under any Sunshine Benefit Plan in accordance with Section 409A of the Code. Sunshine Disclosure Schedule Section 5.11 sets forth all estimated payments to be made by Sunshine pursuant to this Section 5.11(g).
(h) CenterState shall honor the employment agreements, change in control agreements and severance arrangements in effect as set forth in Sunshine Disclosure Schedule 3.11(a), unless superseded or terminated as of the Effective Time, Parent shall, or shall cause with the Surviving Corporation to, recognize all service written consent of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for affected parties.
(i) purposes The Sunshine ESOP shall be terminated immediately prior to the Effective Time (the “ESOP Termination Date”). On the ESOP Termination Date, Sunshine shall direct the Sunshine ESOP trustee(s) to remit to Sunshine a sufficient number of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or shares of Sunshine Common Stock held by the ESOP’s unallocated suspense account to Sunshine to repay the full outstanding balance of the loan between the Sunshine ESOP and Sunshine (iithe “Sunshine ESOP Loan”) benefit accrual purposes, except for vacation(and with such Sunshine Common Stock valued on the ESOP Termination Date) and, if applicable) in after remitting such shares there remains any Parent Benefit Plan in which unpaid amount under the Sunshine ESOP Loan, such Company Continuing Employees may unpaid amount, including any unpaid but accrued interest, shall be eligible to participate after forgiven by Sunshine at the Effective Time; . All remaining shares of Sunshine Common Stock held by the Sunshine ESOP as of the Effective Time shall be converted into the right to receive the Merger Consideration. Within thirty (iii30) Continuing Company days following the date of this Agreement, Sunshine shall honor file or cause to be filed all consulting necessary documents with the IRS for a determination letter for termination of the Sunshine ESOP. As soon as practicable following the receipt of a favorable determination letter from the IRS regarding the qualified status of the Sunshine ESOP upon its termination, the account balances in the Sunshine ESOP shall either be distributed to participants and beneficiaries or advisory agreement previously entered into, transferred to an eligible tax-qualified retirement plan or employment pending equity awards stock options individual retirement account as a participant or warrants beneficiary may direct. Sunshine shall adopt the necessary amendment(s) and board resolution(s) to purchase equity based upon performance. provided, that such service shall not be recognized to effect the extent that (A) such recognition would result in a duplication provisions of benefits or (B) such service was not recognized under the corresponding Company Employee Planthis Section 5.11(i).
(cj) This Section 5.07 Sunshine shall establish a retention bonus pool to be binding upon paid to certain designated Sunshine employees, with such recipients, amounts of payments and inure solely timing of payments to be agreed to in writing by the parties no later than 45 days following the date of this Agreement. The aggregate amount of such retention bonuses payable pursuant to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 retention bonus pool shall not create any right exceed $150,000 in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeveraggregate.
(dk) With At the Effective Time, CenterState shall assume the obligations of Sunshine under each Sunshine Stock Option outstanding at the Effective Time and, except with respect to matters the adjustments described Section 2.02(a), each such Sunshine Stock Option shall remain in this Section 5.07, the Company will not send any written notices or other written communication materials effect in accordance with its terms including with respect to Company Employees without the prior written consent of Parentvesting and termination.
Appears in 3 contracts
Samples: Merger Agreement (Sunshine Bancorp, Inc.), Merger Agreement (CenterState Banks, Inc.), Merger Agreement (CenterState Banks, Inc.)
Employees; Benefit Plans. (a) The Surviving Corporation and its Affiliates will honor all Company Benefit Plans (including any severance, retention, change of control and similar plans, agreements, offer letters, offer summaries and other written arrangements, but excluding any commitment, understanding or promise to grant equity compensation) in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be expressly permitted by the terms of such Company Benefit Plans. During the period commencing at from the Effective Time and ending on Date through the date which is FIVE first (“5”1st) months from anniversary of the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries“Continuation Period”), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to will provide the all employees of the Company and its Subsidiaries who remain employed immediately after as of the Effective Time who continue employment with the Surviving Corporation (“Employees”) with benefits under employee benefit plans (within the meaning of Section 3(3) of ERISA) and other perquisites and fringe benefits (collectively, the "Company Continuing Employees") with base salary“Employee Benefits”), target bonus opportunities (excluding equity-other than equity based compensation), and employee benefits that are, are substantially similar in the aggregate, no less favorable on a group rather than an individual basis, than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits Employee Benefits provided by the Company and its Subsidiaries on as in effect at the date Effective Time; provided, however, that, subject to the requirements of the portion of this Agreementsentence that precedes this proviso, nothing herein shall (i) require that the Surviving Corporation maintain or continue any particular Company Benefit Plan or (ii) interfere with the Surviving Corporation’s right or obligation to make changes to any Company Benefit Plan or New Plan. Notwithstanding anything to the contrary set forth herein, subject to Section 5.6(a), nothing herein shall preclude the Surviving Corporation from terminating the employment of any Employee.
(b) With respect to any "For all purposes under the employee benefit plan" as defined in Section 3(3) plans of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation toand its Affiliates providing benefits to any Employees after the Effective Time (the “New Plans”), recognize the Surviving Corporation shall cause each Employee to receive credit for all service of the Company Continuing Employees with the Company and its Affiliates before the Effective Time (including predecessor or acquired entities or any of other entities with respect to which the Company and its Subsidiaries, as Affiliates have given credit for prior service) to the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) extent recognized in any Parent similar Company Benefit Plan Plans in which such Company Continuing Employees may be eligible Employee participated immediately prior to participate after the Effective Time; Closing (iiisuch service, “Pre-Closing Service”) Continuing Company shall honor for all consulting or advisory agreement previously entered intopurposes, or employment pending equity awards stock options or warrants other than benefit accruals unless such accrual credit is required by law, including determining eligibility to purchase equity based upon performance. providedparticipate, that such service shall not be recognized level of benefits and vesting except to the extent that (A) such recognition credit would result in a duplication of accrual of benefits for the same period of service. In addition, and without limiting the generality of the foregoing, (A) each Employee immediately will be eligible to participate, without any waiting time, in any New Plan to the extent coverage under such New Plan replaces coverage under a similar or comparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”), and (B) for purposes of each New Plan providing medical, dental, pharmaceutical, vision and/or disability benefits to any Employee, the Surviving Corporation will use its commercially reasonable efforts to cause all pre-existing condition exclusions and actively-at-work requirements of such service was not recognized New Plan to be waived for such Employee and his or her covered dependents, to the extent any such exclusions or requirements were waived or were inapplicable under any similar or comparable Company Benefit Plan, and the Surviving Corporation will cause any eligible expenses incurred by such Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Employee’s participation in the corresponding Company New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(c) This If requested by Parent no later than ten days prior to the Closing, the Company shall take (or cause to be taken) all actions necessary or appropriate to terminate, effective no later than the day prior to the date on which the Merger becomes effective, any Company Benefit Plan that contains a cash or deferred arrangement intended to qualify under Section 5.07 401(k) of the Code (a “Company 401(k) Plan”). If the Company is required to terminate any Company 401(k) Plan, then the Company shall, at the request of Parent, provide to Parent prior to the Closing Date written evidence of the adoption by the Company Board of Directors of resolutions authorizing the termination of such Company 401(k) Plan (the form and substance of which resolutions shall be binding upon and inure solely subject to the prior review of Parent). The Company also shall take such other actions in furtherance of terminating such Company 401(k) Plan as Parent may reasonably request. Any actions taken under this Section 5.6(c) shall be made contingent upon the consummation and Closing of the Transaction.
(d) The provisions of this Section 5.6 are solely for the benefit of each of the parties to this Agreement, and nothing in this Section 5.07no current or former employee, express director, independent contractor or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability consultant of the Surviving Corporation, Parent Company or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee its Subsidiaries or any other Person to associated therewith shall be regarded as a third party beneficiary of this Section 5.6. No provision of this Agreement shall be construed as amending any continued employment with Company Benefit Plan and any provisions hereof regarding Company Benefit Plans shall not become effective unless and until the Surviving Corporation, Parent Company Board or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect other entity overseeing such Company Benefit Plans takes such action as they deem necessary and appropriate to matters described in this Section 5.07, implement such provisions. Neither the Company will not send Board’s nor any written notices other entities’ approval of this Agreement, nor the execution of this Agreement by an officer or other written communication materials director of the Company, shall constitute the required action to amend any such Company Employees without the prior written consent of ParentBenefit Plan.
Appears in 2 contracts
Samples: Merger Agreement (Emageon Inc), Merger Agreement (AMICAS, Inc.)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE twelve (“5”12) months from the Effective Time (or if earlier, the date of the employee's ’s termination of employment with Parent Acquirer and its Subsidiaries), Parent Acquirer shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company Target and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company “Target Continuing Employees"”) with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than substantially similar to the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company Target and its Subsidiaries on the date of this Agreement.
(b) With respect to any "“employee benefit plan" ” as defined in Section 3(3) of ERISA maintained by Parent Acquirer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent Acquirer or any of its Subsidiaries and any equity compensation arrangements maintained by Parent Acquirer or any of its Subsidiaries (collectively, "Parent “Acquirer Benefit Plans"”) in which any Company Target Continuing Employees will participate effective as of the Effective Time, Parent shall, or Acquirer shall cause the Surviving Corporation to, recognize all service of the Company Target Continuing Employees with the Company Target or any of its Subsidiaries, as the case may be as if such service were with ParentAcquirer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Acquirer Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Acquirer Benefit Plan in which such Company Target Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Company Target Employee Plan.
(c) This Section 5.07 5.08 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.075.08, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.08. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent Acquirer or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 5.08 shall not create any right in any Company Target Employee or any other Person to any continued employment with the Surviving Corporation, Parent Acquirer or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.075.08, the Company Target will not send any written notices or other written communication materials to Company Target Employees without the prior written consent of ParentAcquirer.
Appears in 2 contracts
Samples: Merger Agreement (Vapor Corp.), Merger Agreement (Vaporin, Inc.)
Employees; Benefit Plans. (a) During the period commencing at Following the Effective Time Time, CenterState shall maintain or cause to be maintained employee benefit plans and ending compensation opportunities for the benefit of employees who are full time employees of Charter or CharterBank on the date which is FIVE Closing Date (“5Covered Employees”) months from that provide employee benefits and compensation opportunities which, in the Effective Time (aggregate, are substantially comparable to the employee benefits and compensation opportunities that are made available on a uniform and non-discriminatory basis to similarly situated employees of CenterState or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable; provided, however, that in no event shall any Covered Employee be eligible to provide participate in any closed or frozen plan of CenterState or its Subsidiaries, including any such plan that is closed or frozen with respect to new employee of CenterState. CenterState shall give the employees Covered Employees full credit for their prior service with Charter and CharterBank (i) for purposes of the Company eligibility (including initial participation and its Subsidiaries who remain employed immediately after the Effective Time eligibility for current benefits) and vesting under any qualified or non-qualified employee benefit plan maintained by CenterState and in which Covered Employees may be eligible to participate and (collectivelyii) for all purposes under any welfare benefit plans, the "Company Continuing Employees") with base salaryvacation plans, target bonus opportunities (excluding equity-based compensation), severance plans and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided similar arrangements maintained by the Company and its Subsidiaries on the date of this AgreementCenterState.
(b) With respect to any "employee benefit plan of CenterState that is a health, dental, vision or other welfare plan in which any Covered Employee is eligible to participate, for the plan year in which such Covered Employee is first eligible to participate, CenterState or its applicable Subsidiary shall use its commercially reasonable efforts to (i) cause any pre-existing condition limitations or eligibility waiting periods under such CenterState or Subsidiary plan to be waived with respect to such Covered Employee and his or her covered dependents to the extent such condition was or would have been covered under the Charter Benefit Plan in which such Covered Employee participated immediately prior to the Effective Time, and (ii) recognize any health, dental, vision or other welfare expenses incurred by such Covered Employee and his or her covered dependents in the year that includes the Closing Date (or, if later, the year in which such Covered Employee is first eligible to participate) for purposes of any applicable copayment, deductibles and annual out-of-pocket expense requirements under any such health, dental, vision or other welfare plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or . Neither CenterState nor any of its Subsidiaries shall terminate the existing coverage of any Covered Employee or his or her dependents under any of the Charter or CharterBank health plans prior to the time such Covered Employees and their dependents become eligible to participate in the health plans, programs and benefits common to all employees of CenterState or any equity compensation arrangements CenterState Subsidiary and their dependents.
(c) Prior to the Effective Time, Charter shall take, and shall cause CharterBank to take, all actions requested by CenterState no later than ten (10) days prior to the Effective Time that may be necessary or appropriate to (i) cause one or more Charter Benefits Plans to terminate as of the Effective Time, or as of the date immediately preceding the date that includes the Effective Time, (ii) cause benefit accruals and entitlements under any Charter Benefit Plan to cease as of the Effective Time, or as of the date immediately preceding that date that includes the Effective Time, (iii) cause the continuation on and after the Effective Time of any contract, arrangement or insurance policy relating to any Charter Benefit Plan for such period as may be requested by CenterState, or (iv) facilitate the merger of any Charter Benefit Plan into any employee benefit plan maintained by Parent CenterState or a CenterState Subsidiary; provided that Charter shall not be required to take any action that would result in the violation by Charter of any contract with a third party. All resolutions, notices, or other documents issued, adopted or executed in connection with the implementation of this Section 5.11(c) shall be subject to CenterState’s reasonable prior review and approval, which shall not be unreasonably withheld, conditioned or delayed. If CenterState requires Charter to terminate a medical plan having a flexible spending arrangement (“FSA”) under Code Section 125, Charter and each of its Subsidiaries may continue its FSA through the Effective Time.
(d) Nothing in this Section 5.11 shall be construed to limit the right of CenterState or any of its Subsidiaries (collectivelyincluding, "Parent following the Closing Date, Charter and CharterBank) to amend or terminate any Charter Benefit Plans"Plan or other employee benefit plan, to the extent such amendment or termination is permitted by the terms of the applicable plan, nor shall anything in this Section 5.11 be construed to require CenterState or any of its Subsidiaries (including, following the Closing Date, Charter and CharterBank) to retain the employment of any particular Covered Employee for any fixed period of time following the Closing Date, and the continued retention (or termination) by CenterState or any of its Subsidiaries of any Covered Employee subsequent to the Effective Time shall be subject in all events to CenterState’s or its applicable Subsidiary’s normal and customary employment procedures and practices, including customary background screening and evaluation procedures, and satisfactory employment performance.
(e) If, within the period ending on the later of (i) six (6) months after the Effective Time or (ii) forty-five (45) days after the completion of the Informational Systems Conversion, unless otherwise addressed in an employment agreement entered into with CenterState Bank or an employment, change in control or severance agreement set forth in Charter Disclosure Schedule Section 3.11(a), any Covered Employee who is terminated by CenterState or its Subsidiaries other than “for cause” (as defined under the policies of CenterState and/or its Subsidiaries) or resigns because he or she was offered a position with a material reduction in rate of base pay or that is outside a 50-mile radius of the current address of his or her primary work location at Charter, then CenterState shall, subject to such Covered Employee’s execution of appropriate releases, pay severance to such Covered Employee in an amount equal to two (2) weeks of base salary for each twelve (12) months of such Covered Employee’s prior employment with Charter or CharterBank; provided, however, that in no event will the total amount of severance for any single Covered Employee be less than four (4) weeks of such base salary nor greater than twenty-six (26) weeks of such base salary. Any severance to which a Covered Employee may be entitled in connection with a termination occurring more than six (6) months after the Effective Time will be as set forth in the severance policies of CenterState and its Subsidiaries as then in effect.
(f) After the later of the Effective Time and December 31, 2018, all accrued and unused sick time for all employees of Charter and CharterBank and all accrued and unused vacation time for all employees of Charter and CharterBank shall be treated as set forth in CenterState Disclosure Schedule Section 5.11(f). Prior to the later of the Effective Time and December 31, 2018, such accrued and unused sick time and vacation time shall be treated in accordance with Charter and CharterBank’s policies and practices (which policies and practices do not provide for any Company Continuing Employees will participate effective cash or other payment for any accrued but unused time off or other benefits).
(g) CenterState shall assume and honor (i) the employment agreements, change in control agreements and severance arrangements in effect as set forth in Charter Disclosure Schedule Section 3.11(a), unless, with the written consent of the affected parties, superseded or terminated as of the Effective Time, Parent shall(ii) the salary continuation and supplemental executive retirement plans, programs and agreements between Charter and/or CharterBank and any officer or shall cause employee, with amounts due under such plans, programs and agreements to be paid in accordance with the Surviving Corporation to, recognize all service payment schedules set forth therein and in accordance with Section 409A of the Company Continuing Employees Code, as set forth in Charter Disclosure Schedule Section 5.11(g), and (iii) the BOLI policies and split-dollar life insurance policies as set forth in Charter Disclosure Schedule Section 5.11(g).
(h) The Charter ESOP shall be terminated immediately prior to the Effective Time (the “ESOP Termination Date”). On the ESOP Termination Date, Charter shall direct the Charter ESOP Trustee(s) to remit to Charter a sufficient number of shares of Charter Common Stock held by the ESOP’s unallocated suspense account to Charter to repay the full outstanding balance of the loan between the Charter ESOP and Charter (the “Charter ESOP Loan”) (and with such Charter Common Stock valued on the ESOP Termination Date) and, if after remitting such shares there remains any unpaid amount under the Charter ESOP Loan, such unpaid amount, including any unpaid but accrued interest, shall be forgiven by Charter at the Effective Time. All remaining shares of Charter Common Stock held by the Charter ESOP as of the Effective Time shall be converted into the right to receive the Merger Consideration. Charter shall use commercially reasonable efforts to file or cause to be filed, within five (5) Business Days following the date all Regulatory Approvals required to consummate the Merger and the Bank Merger in the manner contemplate herein have been obtained, all necessary documents with the Company IRS for a determination letter for termination of the Charter ESOP. As soon as practicable following the receipt of a favorable determination letter from the IRS regarding the qualified status of the Charter ESOP upon its termination, the account balances in the Charter ESOP shall either be disbursed to participants and beneficiaries or any transferred to an eligible tax qualified retirement plan or individual retirement account as a participant or beneficiary may direct. Charter shall adopt the necessary amendment(s) and board resolution(s) to effect the provisions of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for this Section 5.11(h).
(i) purposes CenterState shall take all commercially reasonable actions necessary to cause the trustee of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposesthe CenterState Banks, except for vacationInc. Employee Savings Trust, if applicablerequested to do so by a Covered Employee, to accept a direct “rollover” in cash of all or a portion of such employee’s distribution from the Charter Bank 401(k) in any Parent Benefit Plan in which (provided that the CenterState Banks, Inc. Employee Savings Trust shall only accept cash and not in-kind rollovers). In the case of a Covered Employee with an outstanding loan under the Charter Bank 401(k) Plan, CenterState shall use commercially reasonable efforts to permit the Covered Employee to rollover such Company Continuing Employees may be eligible outstanding loan balance to participate after the Effective Time; CenterState Banks Inc. Employee Savings Trust (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intosubject to the requirements and limitations of the applicable provisions of the Code), or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, however, that the Covered Employee may transfer such service shall not be recognized loan only if such Covered Employee elects to the extent that (A) such recognition would result in a duplication of benefits rollover his or (B) such service was not recognized her entire account balance under the corresponding Company Employee Charter Bank 401(k) Plan.
(cj) This Section 5.07 Charter shall establish a retention bonus pool to be paid to certain Charter employees as shall be binding upon determined by Charter after consultation with CenterState (including in amounts of payments and inure solely timing of payments), with the aggregate amount of such retention bonuses payable pursuant to the benefit retention bonus pool not to exceed $850,000 in the aggregate. CenterState may establish an additional retention bonus pool, with such recipients, amounts of each payments and timing of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or payments designated by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverCenterState.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Charter Financial Corp), Merger Agreement (Charter Financial Corp)
Employees; Benefit Plans. (a) During the period commencing at Prior to the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlierTime, the date Parent shall take all reasonable action so that employees of the employee's termination Company and its Subsidiaries who become employees of employment with Parent and its Subsidiaries)Subsidiaries (the “Transferred Employees”) shall be entitled to participate, effective as soon as administratively practicable following the Effective Time, in each “employee benefit plan,” as such term is defined by Section 3(3) of ERISA, maintained by Parent shall cause or its Subsidiaries and any Parent Stock Plan (collectively, the Surviving Corporation “Parent Benefit Plans”) to the same extent as similarly-situated employees of Parent and each its Subsidiaries (it being understood that inclusion of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With Parent Benefit Plans may occur at different times with respect to different plans and that any "grants to any former employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees or its Subsidiaries under any Parent Stock Plan shall be discretionary with Parent). Notwithstanding the foregoing, Parent may determine to continue any of the employee benefit plans, programs or arrangements of the Company or any of its SubsidiariesSubsidiaries for Transferred Employees in lieu of offering participation in the Parent Benefit Plans providing similar benefits (e.g., as medical and hospitalization benefits), to terminate any of such benefit plans, or to merge any such benefit plans with the case may be as if such service were with ParentParent Benefit Plans, provided the result is the provision of benefits to Transferred Employees that are substantially similar to the benefits provided to the employees of Parent and Parent Bank generally. Parent shall cause each Parent Benefit Plan, other than the Parent Employee Stock Ownership Plan, in which Transferred Employees are eligible to participate to recognize, for purposes of determining eligibility to participate in, the vesting of benefits and eligibility for all other purposes (but not for (iaccrual of benefits) purposes of early retirement subsidies under any the Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposesPlans the service of such Transferred Employees with the Company and its Subsidiaries to the same extent as such service was credited for such purpose by the Company; provided, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits. Notwithstanding anything to the contrary herein, Transferred Employees will be treated as “new employees” of Parent or (B) such service was not recognized its Subsidiaries for purposes of determining eligibility and vesting under the corresponding Parent Employee Stock Ownership Plan.
(b) If Transferred Employees become eligible to participate in a medical, dental, health or disability plan of Parent or its Subsidiaries, Parent shall cause each such plan to (i) waive any preexisting condition limitations to the extent such conditions are covered under the applicable medical, health, dental or disability plans of Parent, (ii) honor under such plans any deductible, co-payment and out-of-pocket expenses incurred by the employees and their beneficiaries during the portion of the plan year prior to such participation and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous Company Employee PlanBenefit Plan prior to the Effective Time.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability An employee of the Surviving Corporation, Parent Corporation or any of 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 its Subsidiaries who was an employee of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective its Subsidiaries immediately prior to the Effective Time (other than in each case any employee who is party to an employment agreement or compensation a change-in-control agreement) whose employment terminates other than for “cause” and under circumstances entitling him or benefits her to severance payments under the terms of any nature or kind whatsoeverthe Company Bank’s Employee Severance Compensation Plan as in effect on the date hereof (the “Company Severance Plan”) during the one-year period following the Effective Time shall be entitled to receive severance payments in accordance with, and to the extent provided by, the Company Severance Plan. The Company Severance Plan shall not be amended in a manner adverse to participants prior to the first anniversary of the Effective Time.
(d) With Except as set forth in Section 6.09(d) of the Company Disclosure Schedule, the Surviving Corporation shall honor, or cause to be honored, in accordance with their terms, all vested or accrued benefit obligations to, and contractual rights of, current and former employees and directors of the Company and its Subsidiaries identified in Section 5.01(p)(i) of the Company Disclosure Schedule, including without limitation any benefits or rights arising as a result of the Merger (either alone or in combination with any other event).
(e) The Company shall take all necessary action to cause the Company ESOP to be terminated as of the Effective Time. The Merger Consideration received by the Company ESOP trustee in connection with the Merger with respect to matters described the unallocated shares of Company Common Stock shall be first applied by the Company ESOP trustee to the full repayment of the Company ESOP loan. The Company shall use its best efforts to cause the Company ESOP trustee to elect a sufficient amount of cash to repay the Company ESOP loan. The balance of the Merger Consideration (if any) received by the Company ESOP trustee with respect to the unallocated shares of Company Common Stock shall be allocated as earnings to the accounts of all participants in the Company ESOP, in accordance with the Company ESOP’s terms and conditions in effect as of the date of this Agreement, to the maximum extent permitted under the Code and applicable law, except as set forth in Section 6.09(e) of the Company Disclosure Schedule. The accounts of all participants and beneficiaries in the Company ESOP immediately prior to the Effective Time shall become fully vested as of the Effective Time. As soon as practicable after the date hereof, but in no event later than 60 days after the date of this Agreement, the Company shall file or cause to be filed all necessary documents with the IRS for a determination letter for termination of the Company ESOP as of the Effective Time, with a copy to be provided to Parent and its counsel. As soon as practicable after the later of the Effective Time or the receipt of a favorable determination letter for termination from the IRS, the account balances in the Company ESOP shall be distributed to participants and beneficiaries or transferred to an eligible individual retirement account as a participant or beneficiary may direct. Prior to the Effective Time, no prepayments shall be made on the Company ESOP loan and contributions to the Company ESOP and payments on the Company ESOP loan shall be made consistent with past practices on the regularly scheduled payment dates.
(f) Except as otherwise provided in this Section 5.076.09, nothing contained in this Section 6.09 shall be interpreted as preventing the Surviving Corporation from amending, modifying or terminating any Company will not send any written notices Benefit Plan, Parent Benefit Plan or other written communication materials to Company Employees without the prior written consent of Parentcontracts, arrangements, commitments or understandings in accordance with their terms and applicable law.
Appears in 2 contracts
Samples: Merger Agreement (Northeast Pennsylvania Financial Corp), Merger Agreement (KNBT Bancorp Inc)
Employees; Benefit Plans. (a) During the For a period commencing beginning at the Effective Time and ending on the date which is FIVE first (“5”1st) months from anniversary of the Effective Time, Buyer shall, and shall cause Buyer Bank to, provide to each employee of Company and its Subsidiaries as of immediately prior to the Effective Time (each, a “Continuing Employee”) with (i) annual base salary or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, base wages (as applicable, ) that is at least equal to provide the employees of the Company and its Subsidiaries who remain employed annual base salary or base wages (as applicable) that was provided to such Continuing Employee immediately after prior to the Effective Time Time, (collectively, the "Company Continuing Employees"ii) with base salary, target bonus additional compensation opportunities (excluding equity-based compensation), and employee benefits that areare comparable, in the aggregate, to such additional compensation opportunities provided to such Continuing Employee immediately prior to the Effective Time, and (iii) employee benefits that are no less favorable than those benefits provided to similarly situated Buyer employees. For purposes of the base salaryimmediately preceding sentence, target bonus “additional compensation” includes short-term and long-term cash and equity incentive opportunities and, for certain senior employees, deferred compensation arrangements, and “employee benefits” include Buyer 401(k) Plan, Buyer ESOP, Buyer’s defined benefit pension plan, Buyer’s health, dental and vision coverage, and the other Buyer benefits (in each case, excluding equity-based change in control, retention, defined benefit pension, nonqualified deferred compensation, and retiree medical benefits). Beginning as of the Closing Date and continuing through the first (1st) anniversary of the Closing Date, Continuing Employees whose positions have been or could reasonably be expected to be eliminated as a consequence of the Merger will be given the opportunity to apply and be considered for any open position at Buyer Bank for which they are qualified, as if they were internal candidates of Buyer. For a period beginning on the Closing Date and continuing through the first (1st) anniversary thereof, each Continuing Employee who is not party to an individual agreement providing for severance or termination benefits and is terminated under severance qualifying circumstances, as defined on Company Disclosure Schedule 6.09(a), shall be eligible to receive severance benefits and employee benefits provided by the medical and dental coverage as set forth on Company Disclosure Schedule 6.09(a), all subject to such employee’s timely execution (and its Subsidiaries on the date non-revocation) of this Agreementa standard release of claims, in addition to COBRA continuation coverage as applicable.
(b) With respect to any "employee benefit plans of Buyer or its Subsidiaries in which any Continuing Employees become eligible to participate on or after the Effective Time (the “New Plans”), Buyer and its Subsidiaries shall: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such employees and their eligible dependents under any New Plans to the extent waiver of such pre-existing conditions, exclusions or waiting periods would apply under the analogous Company Benefit Plan, (ii) use commercially reasonable efforts to provide each such employee and their eligible dependents with credit for any co-payments or coinsurance and deductibles paid prior to commencement in the New Plan under a Company Benefit Plan that provides health care benefits (including medical, dental and vision) or disability benefits, to the same extent that such credit was given under the analogous Company Benefit Plan prior to commencement in the New Plan, in satisfying any applicable deductible, co-payment, coinsurance or maximum out-of-pocket requirements under any New Plans or payment in lieu thereof, and (iii) recognize Continuing Employees service with Company and its Subsidiaries for purposes of eligibility and vesting and, for purposes of severance and paid time off (including vacation, personal time and the like), level of benefits in any New Plan; provided, that the foregoing service recognition shall not apply (A) to the extent it would result in duplication of benefits for the same period of service, (B) for purposes of benefit accrual under any defined benefit pension plan" , or (C) for purposes of the vesting of any equity incentive awards granted by Xxxxx.
(c) Beginning not later than thirty (30) days following the date of this Agreement, Buyer and Company shall cooperate in good faith to identify those Continuing Employees who will be entitled to receive a “retention” bonus from Buyer (each a “Designated Employee” and collectively, the “Designated Employees”) in the event such Designated Employee remains an employee of Buyer as of the Effective Time and through a post-Closing date determined by Buyer (which date shall not be more than one hundred twenty (120) days after the Effective Time) (the “Transition Period”), or if Buyer terminates such Designated Employee’s employment at or after the Effective Time and during the Transition Period without cause or for good reason (as such terms are defined on Company Disclosure Schedule 6.09(c)). The aggregate amount of such retention bonuses for all Designated Employees and the timing of each such bonus payment relative to the Effective Time shall be determined by Buyer. Buyer shall use commercially reasonable efforts to substantially finalize within seventy-five (75) days after the date of this Agreement, in Section 3(3consultation with Company, the list of Designated Employees and the amount of the retention bonus to be awarded to each of Designated Employee. Buyer and Company expect that retention bonuses shall not be payable to any Continuing Employee who is a party to an employment or other agreement that provides severance benefits in the event of a change in control of Company.
(d) of ERISA If requested by Xxxxx in writing at least twenty (20) Business Days prior to the Effective Time, Company shall cause any 401(k) plan sponsored or maintained by Parent Company or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any one of its Subsidiaries (collectivelythe “Company 401(k) Plan”) to be terminated effective as of the day immediately prior to the Effective Time, "Parent Benefit Plans"contingent upon the occurrence of the Closing. In the event that Buyer requests that any Company 401(k) Plan be terminated, the Continuing Employees shall be eligible to participate, effective as soon as administratively practicable but in any event not later than ninety (90) days, following the Closing Date, in a 401(k) plan sponsored or maintained by Buyer or one of its Subsidiaries (a “Buyer 401(k) Plan”). Company and Buyer shall take any and all actions as may be required, including amendments to the Company 401(k) Plan and/or Buyer 401(k) Plan to permit the Continuing Employees who are then actively employed to make rollover contributions to the Buyer 401(k) Plan of “eligible rollover distributions” (with the meaning of Section 401(a)(31) of the Code) in the form of cash, notes (in the case of loans) or a combination thereof. If applicable, Company shall provide Buyer with resolutions of the applicable governing body that the Company 401(k) Plan has been terminated in accordance with this Section 6.09(d); provided, that prior to terminating the Company 401(k) Plan, Company shall provide the form and substance of any applicable resolutions or amendments to Buyer for review and comment, which timely comments shall be considered in good faith.
(e) If requested by Xxxxx in writing at least twenty (20) Business Days prior to the Effective Time, Company shall take or cause to be taken all such actions as may be necessary to cause the Company ESOP to be terminated (the “ESOP Termination Date”), effective as of the day immediately prior to the Effective Time, contingent upon the occurrence of the Closing. In the event that Buyer requests that any Company ESOP be terminated, the Continuing Employees will participate shall be eligible to participate, effective as of the Closing Date, in any employee stock ownership plan sponsored or maintained by Buyer or one of its Subsidiaries. All participants’ accounts in the Company ESOP shall become fully vested and 100% non-forfeitable as of the ESOP Termination Date, and no new participants shall be admitted to the Company ESOP on or after the ESOP Termination Date. All shares of Company Common Stock held by the Company ESOP immediately prior to the Effective Time shall be converted into the right to receive the Merger Consideration. Following the Effective Time, any unallocated shares of Buyer Common Stock held by the Company ESOP and any other remaining unallocated assets shall be deemed to be earnings and shall be allocated as earnings to the accounts of the Company ESOP participants, whether or not such participant is actively employed on the ESOP Termination Date, based on their account balances under the Company ESOP as of the ESOP Termination Date and distributed to the participants of the Company ESOP, except as may be required by applicable Law or the terms of the Company ESOP. No later than the day immediately prior to the Effective Time, contingent on the occurrence of the Closing, Company shall amend or shall cause the amendment of the Company ESOP to provide that distributions under the Company ESOP after the Effective Time shall be made only in the form of Buyer Common Stock except with respect to any fractional shares or other de minimis cash distributions, which shall be distributed in the form of cash, or as otherwise required by applicable Law. If applicable, Company shall provide Buyer with resolutions of the applicable governing body that the Company ESOP has been terminated in accordance with this Section 6.09(e); provided, that prior to terminating the Company ESOP, Company shall provide the form and substance of any applicable resolutions or amendments to Buyer for review and comment, which timely comments shall be considered in good faith.
(f) Effective as of the Effective Time, Parent shallBuyer agrees to (i) assume and honor the terms and agreements with the Continuing Employees identified on Company Disclosure Schedule 6.09(f)(i) in accordance with their terms as of the date hereof; (ii) honor the agreements set forth on Company Disclosure Schedule 6.09(f)(ii); (iii) assume Company’s and Company Subsidiaries’ obligations under its defined benefit pension plan; (iv) assume Company’s and Company Subsidiaries’ obligations under its postretirement healthcare plan; (v) assume Company’s and Company Subsidiaries’ obligations under its supplemental executive retirement plans; and (vi) continue to provide retiree medical benefits on the same terms and conditions as are in effect immediately prior to the Effective Time.
(g) Without limiting the generality of Section 6.09(a), with respect to Company Benefit Plans providing cash bonus and incentive opportunities, (i) if the Effective Time occurs following the completion of the applicable performance period but prior to the regularly-scheduled date for payment of the cash bonus or incentive earned with respect to such performance period in accordance with the terms of such Company Benefit Plan, Company or its Subsidiaries may pay such earned cash bonus or incentive as of the Closing Date and, if not paid by Company or its Subsidiaries as of the Closing Date, Buyer or its Subsidiaries shall pay (or cause to be paid) such earned cash bonus or incentive no later than the Surviving Corporation tofirst regularly-scheduled payroll date following the Closing Date and (ii) if the Effective Time occurs during an applicable performance period, recognize all service Company or its Subsidiaries may pay a pro-rated cash bonus or incentive (pro-rated based on each eligible participant’s target opportunity, multiplied by the number of days from the beginning of the performance period to and including the Closing Date, over the total number of days in the performance period) to each eligible participant as of the Closing Date and, if not paid by Company or its Subsidiaries as of the Closing Date, Buyer or its Subsidiaries shall pay (or cause to be paid) such pro-rated cash bonus or incentive no later than the first regularly-scheduled payroll date following the Closing Date.
(h) Neither Buyer nor any of its Subsidiaries or representatives shall contact or attempt to contact directly any employees of the Company Continuing Employees or its Subsidiaries at any time prior to the Effective Time, during which they are employed by Company or its Subsidiaries, with respect to employment with (or compensation and benefits from) Buyer or its Subsidiaries as of or following the Effective Time but shall instead initially coordinate all such communication through Company and its Subsidiaries, which shall provide Buyer with commercially reasonable opportunities to communicate with Company employees. No later than sixty (60) days following the date of this Agreement, Buyer shall communicate to each individual who could be a “disqualified individual” of the Company or its Subsidiaries within the meaning of Section 280G of the Code the compensation and benefits, if any, to be granted pursuant to any new employment agreement or other agreement, arrangement or contract to be entered into or negotiated by Buyer or its Subsidiaries with such individual prior to the Effective Time.
(i) On and after the date hereof, any broad-based employee notices or communication materials to be provided or communicated by Company with respect to employment, compensation or benefits matters addressed in this Agreement shall be subject to the prior prompt review and reasonable comment of Buyer, and Company shall consider in good faith revising such notice or communication to reflect any comments or advice that Buyer timely provides. Buyer shall review such broad-based communications no later than two (2) Business Days after Company provides same to Buyer. If Buyer does not provide review and comment within two (2) Business Days, Company shall not be in breach of this Section 6.09(e) by sending such communication without comment from Buyer.
(j) Nothing in this Agreement shall confer upon any employee, officer, director or consultant of Company or any of its SubsidiariesSubsidiaries or affiliates any right to continue in the employ or service of Company, as Buyer, or any Subsidiary or affiliate thereof, nor shall anything in this Agreement interfere with or restrict in any way the case may rights of Company, Buyer or any Subsidiary or affiliate thereof to discharge or terminate the services of any employee, officer, director or consultant of Company or any of its Subsidiaries or affiliates at any time for any reason whatsoever, with or without cause. Nothing in this Agreement shall be as if such service were with Parent, for vesting and eligibility purposes (but not for deemed to (i) purposes of early retirement subsidies under establish, amend, or modify any Parent Company Benefit Plan, New Plan that is a defined or any other benefit pension plan or employment plan, program, agreement or arrangement, or (ii) except as set forth herein, alter or limit the ability of the Buyer or any of its Subsidiaries or affiliates to amend, modify or terminate any particular Company Benefit Plan, New Plan or any other benefit accrual purposesor employment plan, except for vacationprogram, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate agreement or arrangement after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result Nothing in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, is intended to or shall confer upon any other Person person, including any rights current or remedies former employee, officer, director or consultant of Company or any of its Subsidiaries or affiliates, any right, benefit or remedy of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverAgreement.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Cambridge Bancorp), Merger Agreement (Eastern Bankshares, Inc.)
Employees; Benefit Plans. (a) During the period commencing at Following the Effective Time and ending Time, FBMS shall maintain or cause to be maintained employee benefit plans for the benefit of employees who are employees of SWGB on the date which is FIVE (“5”) months from Closing Date and who become employees of FBMS as of the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to “Covered Employees”) that provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that arewhich, in the aggregate, are substantially comparable to the employee benefits and compensation opportunities, including participation in employee stock ownership plans and retirement plans, that are made available on a uniform and non-discriminatory basis to similarly situated employees of FBMS; provided, however, that in no less favorable than event shall any Covered Employee be eligible to participate in any closed or frozen plan of FBMS. FBMS shall give the base salaryCovered Employees credit for their prior service with SWGB (i) for purposes of eligibility (including initial participation and eligibility for current benefits) and vesting under any qualified or non-qualified employee benefit plan maintained by FBMS and in which Covered Employees may be eligible to participate and (ii) for all purposes under any welfare benefit plans, target bonus opportunities vacation plans (excluding equity-based compensationalthough FBMS may consider current vacation benefits provided to such employees by SWGB), severance plans and employee benefits provided similar arrangements maintained by the Company and its Subsidiaries on the date of this AgreementFBMS.
(b) With respect to any "employee benefit plan of FBMS that is a health, dental, vision or other welfare plan in which any Covered Employee is eligible to participate, for the plan year in which such Covered Employee is first eligible to participate, FBMS shall use its commercially reasonable efforts to (i) cause any pre-existing condition limitations, eligibility waiting periods or evidence of insurability requirements under such FBMS plan to be waived with respect to such Covered Employee and his or her covered dependents to the extent such condition was or would have been covered under the SWGB Benefit Plan in which such Covered Employee participated immediately prior to the Effective Time and (ii) give each Covered Employee credit towards applicable co-payments, deductibles and annual out-of-pocket limits for expenses incurred prior to the Effective Time for which payment has been made (taking into account any differences in plan years and applicable rules and regulations related to such differences in plan years).
(c) Following the Effective Time, The First shall credit each Covered Employee with an amount of paid time off equal to such Covered Employee’s accrued but unused paid time off at Southwest Georgia Bank as of the Effective Time (“Carryover PTO”), provided that The First may allocate the Carryover PTO and between vacation leave and sick leave in its discretion.
(d) SWGB shall cause Southwest Georgia Bank to take all necessary actions to terminate its participation in the Southwest Georgia Bank 401(k) Plan, effective as the date immediately preceding the Effective Time of the Merger, subject to the occurrence of the Effective Time. SWGB shall provide FBMS with evidence that the such participation has been terminated and provide copies of the appropriate resolutions terminating participation (the form and substance of which shall be subject to review and approval by FBMS, which will not be unreasonably withheld) not later than the day immediately preceding the Effective Time. The accounts of all participants and beneficiaries in the Southwest Georgia Bank 401(k) Plan shall become fully vested upon termination of participation in such plan.
(e) Prior to the Effective Time, SWGB shall take, and shall cause its Subsidiaries to take, all actions reasonably requested by FBMS that may be necessary or appropriate to, conditioned on the occurrence of the Effective Time, (i) cause one or more SWGB Benefits Plans not covered above to terminate as of the Effective Time, or as of the date immediately preceding the Effective Time, (ii) cause benefit accruals and entitlements under any SWGB Benefit Plan to cease as of the Effective Time, or as of the date immediately preceding the Effective Time, (iii) cause the continuation on and after the Effective Time of any contract, arrangement or insurance policy relating to any SWGB Benefit Plan for such period as may be reasonably requested by FBMS, or (iv) facilitate the merger of any SWGB Benefit Plan into any employee benefit plan maintained by FBMS. Additionally, SWGB and Southwest Georgia Bank will take any and all actions reasonably requested by FBMS related to ensuring the compliance of all SWGB Benefit Plans with applicable law, including filing any necessary “top hat” filings or corrections. All resolutions, notices, or other documents issued, adopted or executed in connection with the implementation of this Section 5.11(e) shall be subject to FBMS’s reasonable prior review and approval, which shall not be unreasonably withheld, conditioned or delayed.
(f) Any employee of SWGB or Southwest Georgia Bank that becomes an employee of FBMS or The First at the Effective Time who is terminated within one (1) year following the Effective Time (other than for cause, death, disability, normal retirement or voluntary resignation) shall receive a severance payment in accordance with the The First’s standard severance policy, as set forth on FBMS Disclosure Schedule 5.11(f).
(g) Nothing in this Section 5.11 shall be construed to limit the right of FBMS (including, following the Closing Date, SWGB) to amend or terminate any SWGB Benefit Plan or other employee benefit plan" as defined , to the extent such amendment or termination is permitted by the terms of the applicable plan, nor shall anything in this Section 3(35.11 be construed to require FBMS (including, following the Closing Date, SWGB) to retain the employment of ERISA maintained any particular Covered Employee for any fixed period of time following the Closing Date, and the continued retention (or termination) by Parent FBMS of any Covered Employee subsequent to the Effective Time shall be subject in all events to FBMS’s normal and customary employment procedures and practices, including customary background screening and evaluation procedures, and satisfactory employment performance.
(h) For purposes of this Section 5.11, (i) “employees of SWGB” shall include employees of SWGB or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any (ii) “employees of its Subsidiaries and any equity compensation arrangements maintained by Parent or any FBMS” shall include employees of its Subsidiaries (collectively, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company FBMS or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company all references to SWGB shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of include each of the parties to this AgreementSubsidiaries of SWGB, and nothing in this Section 5.07, express or implied, (iv) all references to FBMS shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability include each of the Surviving Corporation, Parent or any Subsidiaries of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverFBMS.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Southwest Georgia Financial Corp), Merger Agreement (First Bancshares Inc /MS/)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time Closing and ending on the date which is FIVE twelve (“5”12) months from the Effective Time Closing (or if earlier, the date of the employee's ’s termination of employment with Parent and its Subsidiariesthe Company), Parent Buyer shall and shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, Company to provide the employees of the Company and its Subsidiaries each Employee who remain remains employed immediately after the Effective Time Closing (collectively, the "“Company Continuing Employees"Employee”) with with: (i) base salary, salary or hourly wages which are no less than the base salary or hourly wages provided by the Company immediately prior to the Closing; (ii) target bonus opportunities (excluding equity-based compensation), and employee benefits that areif any, in the aggregate, which are no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits ) provided by the Company immediately prior to the Closing; (iii) retirement and its Subsidiaries on welfare benefits that are no less favorable in the date of this Agreementaggregate than those provided by the Company immediately prior to the Closing; and (iv) severance benefits that are no less favorable than the practice, plan or policy in effect for such Company Continuing Employee immediately prior to the Closing.
(b) With respect to any "Benefit Plan and other “employee benefit plan" as defined in plans” (within the meaning of Section 3(3) of ERISA ERISA) maintained by Parent Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent “Buyer Benefit Plans"”) in which any Company Continuing Employees will participate effective as of the Effective TimeClosing, Parent Buyer shall, or shall cause the Surviving Corporation Company to, recognize all service of the Company Continuing Employees with the Company or any of its SubsidiariesCompany, as the case may be as if such service were with ParentBuyer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective TimeClosing Date; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Company Employee Benefit Plan.
(c) This Section 5.07 5.05 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.075.05, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.05. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 5.05 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving CorporationCompany, Parent Buyer or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.), Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Employees; Benefit Plans. (a) During For a period of one year following the period commencing at Closing Date (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to will provide the current employees of the Company and its Subsidiaries (other than those employees covered by a collective bargaining agreement) as of the Effective Time who continue employment with the Surviving Corporation (“Employees”) with compensation and benefits that are no less favorable in the aggregate than those provided under the Company’s compensation and benefit plans, programs, policies, practices and arrangements (excluding equity-based programs) in effect at the Effective Time (it being understood that discretionary incentive programs will remain employed discretionary); provided, however, that nothing herein will prevent the amendment or termination of any specific plan, program or arrangement, require that the Surviving Corporation provide or permit investment in the securities of the Surviving Corporation or interfere with the Surviving Corporation’s right or obligation to make such changes as are necessary to comply with applicable Law. Notwithstanding anything to the contrary set forth herein, nothing herein shall preclude the Surviving Corporation from terminating the employment of any Employee for any reason for which the Company could have terminated such Employee prior to the Effective Time.
(b) The Surviving Corporation and its Affiliates will honor all Company Benefit Plans (including any severance, retention, change of control and similar plans, agreements and written arrangements) in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such plans, agreements or written arrangements. During the Continuation Period, the Surviving Corporation will provide all Employees (other than those covered by an individual agreement providing severance benefits outside the Company’s severance policies) who suffer a termination of employment with severance benefits no less favorable than those that would have been provided to such Employees under the Company’s severance policies as in effect immediately prior to the Effective Time.
(c) For all purposes under the employee benefit plans of the Surviving Corporation and its Affiliates providing benefits to any Employees after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation“New Plans”), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by each Employee will be credited with his or her years of service with the Company and its Subsidiaries on Affiliates before the date of this Agreement.
Effective Time (b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent including predecessor or acquired entities or any of other entities for which the Company and its SubsidiariesAffiliates have given credit for prior service), excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectivelyto the same extent as such Employee was entitled, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of before the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if to credit for such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent the corresponding Company Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposesPlan, except for vacationpurposes of benefit accrual under defined benefit plans, if applicable) in for any Parent Benefit Plan in which such Company Continuing Employees may be eligible purpose where service credit for the applicable period is not provided to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intoparticipants generally, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized and to the extent that (A) such recognition credit would result in a duplication of benefits or (B) such service was not recognized under accrual of benefits. In addition, and without limiting the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each generality of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied foregoing (i) shall each Employee immediately will be construed eligible to establishparticipate, amend without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or modify any benefit plancomparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (such plans, programcollectively, agreement or arrangement or the “Old Plans”) and (ii) shall alter for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Employee, the Surviving Corporation will cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Employee and his or limit her covered dependents, to the ability extent any such exclusions or requirements were waived or were inapplicable under any similar or comparable Company Benefit Plan, and the Surviving Corporation will cause any eligible expenses incurred by such Employee and his or her covered dependents during the portion of the Surviving Corporationplan year of the Old Plan ending on the date such Employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, Parent coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or any of 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 hereto acknowledge and agree that her covered dependents for the terms set forth applicable plan year as if such amounts had been paid in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment accordance with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeversuch New Plan.
(d) With respect to matters described in No provision of this Section 5.075.7 will create any third party beneficiary rights in any current or former employee, director or consultant of the Company will not send or its Subsidiaries in respect of continued employment (or resumed employment) or any written notices or other written communication materials to Company Employees without the prior written consent of Parentmatter.
Appears in 2 contracts
Samples: Merger Agreement (Aramark Corp/De), Merger Agreement (Neubauer Joseph)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE twelve (“5”12) months from the Effective Time (or if earlier, the date of the employee's ’s termination of employment with Parent and or its Subsidiariesapplicable Subsidiary, including the Surviving Corporation), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "“Company Continuing Employees"”) with base salary, target bonus opportunities salary and employee benefits (excluding equity-based compensation), long-term incentives, change in control, retention, transition, stay or similar arrangements, and employee benefits retiree benefits) that are, in the aggregate, no less favorable than substantially comparable to the base salary, target bonus opportunities salary and employee benefits (excluding equity-based compensation), long-term incentives, change in control, retention, transition, stay or similar arrangements, and employee benefits retiree benefits) provided by the Company and its Subsidiaries on the date of this Agreement; provided, however, that Parent’s and the Surviving Corporation’s obligations under this Section 6.07 shall be subject to such modifications as are necessary to comply with applicable Law of any jurisdiction outside the United States of America (including its territories and possessions).
(b) With respect to any "“employee benefit plan" ” as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 6.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.076.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.076.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 6.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) Any offering period in progress under the Company ESPP shall continue, and, except as otherwise provided in this clause (d), the shares of Company Common Stock shall be issued to participants therein on the next currently scheduled purchase dates thereunder occurring after the date hereof as provided under, and subject to the terms and conditions of, the Company ESPP; provided that, from and after the date hereof, the Company shall take all actions necessary to (i) not commence a new offering period and (ii) ensure that no new participants be permitted into the Company ESPP and that the existing participants thereunder may not increase their elections with respect to the current offering period. In the event that any offering period under the Company ESPP has not ended on the date immediately preceding the Closing Date, then such offering period shall be terminated as of second (2nd) Business Day immediately preceding the Closing Date and all participant contributions then in the Company ESPP shall be used to purchase shares of Company Common Stock on such date in accordance with the terms of the Company ESPP as if such date was the last date of such offering period. Notwithstanding any restrictions on transfer of stock in the Company ESPP, all shares of Company Common Stock purchased under the Company ESPP shall be treated identically to all other shares of Company Common Stock in the Merger and the payment of the Merger Consideration therefor in accordance with ARTICLE III. The Company shall terminate the Company ESPP as of or immediately prior to the Effective Time.
(e) With respect to matters described in this Section 5.076.07, the Company will not send any written information, notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (MGC Parent LLC), Merger Agreement (MGC DIAGNOSTICS Corp)
Employees; Benefit Plans. (a) During the period commencing at Following the Effective Time Time, CenterState shall maintain or cause to be maintained employee benefit plans and ending compensation opportunities for the benefit of employees who are full time employees of Charter or CharterBank on the date which is FIVE Closing Date (“5Covered Employees”) months from that provide employee benefits and compensation opportunities which, in the Effective Time (aggregate, are substantially comparable to the employee benefits and compensation opportunities that are made available on a uniform and non-discriminatory basis to similarly situated employees of CenterState or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable; provided, however, that in no event shall any Covered Employee be eligible to provide participate in any closed or frozen plan of CenterState or its Subsidiaries, including any such plan that is closed or frozen with respect to new employee of CenterState. CenterState shall give the employees Covered Employees full credit for their prior service with Charter and CharterBank (i) for purposes of the Company eligibility (including initial participation and its Subsidiaries who remain employed immediately after the Effective Time eligibility for current benefits) and vesting under any qualified or non-qualified employee benefit plan maintained by CenterState and in which Covered Employees may be eligible to participate and (collectivelyii) for all purposes under any welfare benefit plans, the "Company Continuing Employees") with base salaryvacation plans, target bonus opportunities (excluding equity-based compensation), severance plans and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided similar arrangements maintained by the Company and its Subsidiaries on the date of this AgreementCenterState.
(b) With respect to any "employee benefit plan of CenterState that is a health, dental, vision or other welfare plan in which any Covered Employee is eligible to participate, for the plan year in which such Covered Employee is first eligible to participate, CenterState or its applicable Subsidiary shall use its commercially reasonable efforts to (i) cause any pre-existing condition limitations or eligibility waiting periods under such CenterState or Subsidiary plan to be waived with respect to such Covered Employee and his or her covered dependents to the extent such condition was or would have been covered under the Charter Benefit Plan in which such Covered Employee participated immediately prior to the Effective Time, and (ii) recognize any health, dental, vision or other welfare expenses incurred by such Covered Employee and his or her covered dependents in the year that includes the Closing Date (or, if later, the year in which such Covered Employee is first eligible to participate) for purposes of any applicable copayment, deductibles and annual out-of-pocket expense requirements under any such health, dental, vision or other welfare plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or . Neither CenterState nor any of its Subsidiaries shall terminate the existing coverage of any Covered Employee or his or her dependents under any of the Charter or CharterBank health plans prior to the time such Covered Employees and their dependents become eligible to participate in the health plans, programs and benefits common to all employees of CenterState or any equity compensation arrangements CenterState Subsidiary and their dependents.
(c) Prior to the Effective Time, Charter shall take, and shall cause CharterBank to take, all actions requested by CenterState no later than ten (10) days prior to the Effective Time that may be necessary or appropriate to (i) cause one or more Charter Benefits Plans to terminate as of the Effective Time, or as of the date immediately preceding the date that includes the Effective Time, (ii) cause benefit accruals and entitlements under any Charter Benefit Plan to cease as of the Effective Time, or as of the date immediately preceding that date that includes the Effective Time, (iii) cause the continuation on and after the Effective Time of any contract, arrangement or insurance policy relating to any Charter Benefit Plan for such period as may be requested by CenterState, or (iv) facilitate the merger of any Charter Benefit Plan into any employee benefit plan maintained by Parent CenterState or a CenterState Subsidiary; provided that Charter shall not be required to take any action that would result in the violation by Charter of any contract with a third party. All resolutions, notices, or other documents issued, adopted or executed in connection with the implementation of this Section 5.11(c) shall be subject to CenterState’s reasonable prior review and approval, which shall not be unreasonably withheld, conditioned or delayed. If CenterState requires Charter to terminate a medical plan having a flexible spending arrangement (“FSA”) under Code Section 125, Charter and each of its Subsidiaries may continue its FSA through the Effective Time.
(d) Nothing in this Section 5.11 shall be construed to limit the right of CenterState or any of its Subsidiaries (collectivelyincluding, "Parent following the Closing Date, Charter and CharterBank) to amend or terminate any Charter Benefit Plans") in which any Company Continuing Employees will participate effective as Plan or other employee benefit plan, to the extent such amendment or termination is permitted by the terms of the Effective Timeapplicable plan, Parent shall, or nor shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company anything in this Section 5.11 be construed to require CenterState or any of its SubsidiariesSubsidiaries (including, as following the case may Closing Date, Charter and CharterBank) to retain the employment of any particular Covered Employee for any fixed period of time following the Closing Date, and the continued retention (or termination) by CenterState or any of its Subsidiaries of any Covered Employee subsequent to the Effective Time shall be as if such service were with Parentsubject in all events to CenterState’s or its applicable Subsidiary’s normal and customary employment procedures and practices, for vesting including customary background screening and eligibility purposes evaluation procedures, and satisfactory employment performance.
(but not for e) If, within the period ending on the later of (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan six (6) months after the Effective Time or (ii) benefit accrual purposesforty-five (45) days after the completion of the Informational Systems Conversion, except unless otherwise addressed in an employment agreement entered into with CenterState Bank or an employment, change in control or severance agreement set forth in Charter Disclosure Schedule Section 3.11(a), any Covered Employee who is terminated by CenterState or its Subsidiaries other than “for vacationcause” (as defined under the policies of CenterState and/or its Subsidiaries) or resigns because he or she was offered a position with a material reduction in rate of base pay or that is outside a 50-mile radius of the current address of his or her primary work location at Charter, if applicablethen CenterState shall, subject to such Covered Employee’s execution of appropriate releases, pay severance to such Covered Employee in an amount equal to two (2) weeks of base salary for each twelve (12) months of such Covered Employee’s prior employment with Charter or CharterBank; provided, however, that in no event will the total amount of severance for any Parent Benefit Plan in single Covered Employee be less than four (4) weeks of such base salary nor greater than twenty-six (26) weeks of such base salary. Any severance to which such Company Continuing Employees a Covered Employee may be eligible to participate entitled in connection with a termination occurring more than six (6) months after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not Time will be recognized to as set forth in the extent that (A) such recognition would result severance policies of CenterState and its Subsidiaries as then in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Planeffect.
(cf) This Section 5.07 After the later of the Effective Time and December 31, 2018, all accrued and unused sick time for all employees of Charter and CharterBank and all accrued and unused vacation time for all employees of Charter and CharterBank shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms treated as set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.CenterState Disclosure Schedule
Appears in 2 contracts
Samples: Merger Agreement (CenterState Bank Corp), Merger Agreement (CenterState Bank Corp)
Employees; Benefit Plans. (a) During For the period commencing at the Effective Time and ending which starts on the date which is FIVE Closing Date and ends on December 31, 2011 (the “5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation or any of their respective Subsidiaries or Affiliates to, recognize all service provide to the individuals who, immediately prior to the Effective Time are employees of the Company Continuing Employees with the Company or any of its SubsidiariesSubsidiaries and also are Continuing Employees, with compensation and benefits, including severance payments and benefits, that are substantially comparable in the aggregate to the compensation and benefits provided to such Continuing Employees by the Company and its Subsidiaries immediately prior to the Effective Time. Notwithstanding anything to the contrary set forth herein, but subject to applicable Law and any contractual rights of any Continuing Employee, after the Effective Time nothing herein shall preclude the Surviving Corporation from terminating the employment of any Continuing Employee for any reason.
(b) During the Continuation Period, Parent shall, or shall cause the Surviving Corporation and its Subsidiaries and Affiliates to, honor all employment, severance, change of control and similar Contracts listed on Section 5.6(b) of the Company Disclosure Letter in effect with Continuing Employees in accordance with their terms as in effect immediately prior to the case may be as if such service were Effective Time, subject to any amendment that is necessary to comply with Parent, for vesting and eligibility purposes applicable Law.
(but not for (ic) For purposes of early retirement subsidies eligibility, level of benefits (excluding accruals under any Parent Benefit Plan that is a defined benefit pension plan or (iiplan) and vesting under all employee benefit accrual purposesplans of Parent, except for vacation, if applicable) in the Surviving Corporation and its Subsidiaries and Affiliates providing benefits to any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate Employee after the Effective Time (the “New Plans”), each Continuing Employee shall receive full credit for such Continuing Employee’s years of service with the Company and its Subsidiaries before the Effective Time (including predecessor or acquired entities or any other entities for which the Company and its Subsidiaries have given credit for prior service), to the same extent as such Continuing Employee received, prior to the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that credit for such service shall not be recognized under any corresponding Company Benefit Plan (except to the extent that (A) such recognition credit would result in a duplication of benefits for the same period of service). For purposes of the New Plans providing medical, dental, prescription drug, vision, life insurance or disability benefits to any Continuing Employee, Parent shall cause the New Plans to (Ba) waive all pre-existing condition exclusions with respect to Continuing Employees and their dependents to the same extent such service was not recognized exclusions were waived or satisfied under a corresponding Company Benefit Plan in which they participated immediately before participating in the New Plan and (b) take into account all eligible expenses incurred by each Continuing Employee and his or her covered dependents during the portion of the plan year of the Company Benefit Plan ending on the date such Continuing Employee’s participation in the corresponding Company New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(cd) This Parent, after the Closing Date, intends to provide equity participation (in addition to any provided under Section 5.07 2.3(d)) and other incentive compensation opportunities to Continuing Employees who are key employees.
(e) If the Closing Date occurs in calendar year 2011, then on or prior to the Closing Date the Company may pay to each employee of the Company or any Subsidiary of the Company who is eligible for a bonus under the Company’s 2010 Management Incentive Compensation Plan as in effect on the date of this Agreement (the “MICP”) the bonus, if any, which he or she shall have earned for 2010 pursuant to the terms of such plan as determined consistent with past practice, and the Company may pay an annual bonus for 2010 to any other employee but only in the ordinary course consistent with past practice. If the Closing Date occurs in calendar year 2010, then on or prior to the Closing Date the Company may pay to each employee of the Company or any Subsidiary of the Company who is eligible for a bonus under the MICP the bonus, if any, he or she would have earned for 2010 pursuant to the terms of such plan based on the Company’s performance versus target through the end of the month immediately preceding the Closing Date as determined consistent with past practice, multiplied by a fraction, the numerator which shall be binding upon and inure solely to the benefit number of each days (including the Closing Date) that has occurred in 2010 as of the parties to this AgreementClosing Date and the denominator of which shall be 365, and nothing the Company may pay an annual bonus to any other employee for 2010 but any such bonus shall be determined in a manner consistent with past practice after taking into account the fact that the bonus will be for a period of less than one year.
(f) Nothing in this Section 5.075.6, whether express or implied, shall confer upon any other Person current or former employee of the Company, Parent, the Surviving Corporation or any of their respective Subsidiaries or Affiliates, any rights or remedies whatsoever, including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Section 5.075.6. Nothing contained herein, express or implied (i) shall be construed No provision of this Section 5.6 is intended to establishmodify, amend or modify create any employee benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability plan of the Surviving CorporationCompany, Parent or any of their respective Affiliates to amendParent, modify or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent Corporation or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverAffiliates.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Earthlink Inc), Merger Agreement (Itc Deltacom Inc)
Employees; Benefit Plans. (a) During the period commencing Commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlierClosing, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent Buyer shall cause the Surviving Corporation Company and each of its Subsidiaries, as applicable, to provide the employees Company Employees to whom the Buyer has extended offers of continued employment after the Minority Shares Closing (which, for avoidance of doubt, shall exclude the individuals listed Section 6.06(a) of the Company Disclosure Schedule) and its Subsidiaries who have elected to remain employed immediately after the Effective Time Closing, (collectively, the "“Company Continuing Employees"”) with (i) base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits salary that are, in the aggregate, is no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits salary provided by the Company and its Subsidiaries on the date of this Agreement, (ii) employee benefits that are no less favorable than benefits provided by the Buyer to its similarly situated employees, and (iii) discretionary bonus opportunities, which shall be payable, if at all, in Company’s sole discretion; provided, however, that the Company and its Subsidiaries shall have the right to terminate any Company Continuing Employee after the Majority Shares Closing if such termination is for cause as customarily defined.
(b) With respect to any "“employee benefit plan" ” as defined in Section 3(3) of ERISA maintained by Parent Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent Buyer or any of its Subsidiaries and any equity compensation arrangements maintained by Parent Buyer or any of its Subsidiaries (collectively, "Parent “Buyer Benefit Plans"”) in which any Company Continuing Employees will participate effective as of the Effective TimeClosing, Parent Buyer shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with ParentBuyer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Buyer Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective TimeClosing; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, provided that such service shall not be recognized to the extent that (Ay) such recognition would result in a duplication of benefits or (Bz) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 6.06 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.076.06, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.076.06. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving CorporationCompany, Parent Buyer or any of 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 hereto acknowledge ac and agree that the terms set forth in this Section 5.07 6.06 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving CorporationCompany, Parent Buyer or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.076.06, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of ParentBuyer.
Appears in 2 contracts
Samples: Acquisition Agreement (Kennedy Cabot Acquisition, LLC), Acquisition Agreement (Siebert Financial Corp)
Employees; Benefit Plans. (a) During the twelve (12) month period commencing at following the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries)Offer Closing Date, Parent shall, and shall cause the Surviving Corporation and each of its SubsidiariesAffiliates, as applicable, to provide each employee of the employees Company or any of its Subsidiaries (after giving effect to the Subsidiary Transfer) who remains employed immediately after the Offer Closing Date (collectively, the “Company Continuing Employees”) with (i) base salary, target bonus opportunity and severance benefits at least equal to that provided by the Company and its Subsidiaries who remain employed immediately after prior to the Effective Time Offer Closing Date and (collectivelyii) other compensation and benefits, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits those provided by the Company and its Subsidiaries on immediately prior to the date of Offer Closing Date; provided that the foregoing shall exclude for all purposes any equity-based compensation or retention, change-of-control or similar payments or benefits; and provided, further, that this Agreement.
(bSection 6.07(a) With respect shall not apply to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with Employee who is subject to a collective bargaining agreement to which the Company or any of its SubsidiariesSubsidiaries is a party. Nothing in this Agreement shall require Parent, the Surviving Corporation or any of its Affiliates to maintain the employment of any Company Continuing Employee for any defined period of time.
(b) Following the Offer Closing Date, Parent will, and will cause its Affiliates or the Surviving Corporation, as applicable, to, honor in accordance with their terms all Company Benefit Plans, including any rights or benefits arising as a result of the transactions contemplated by this Agreement (either alone or in combination with any other event); provided, however, that Parent, its Affiliates or the Surviving Corporation may merge, amend, modify or terminate any individual plan or arrangement in accordance with its terms and applicable Law (including obtaining the consent of the other parties to and beneficiaries of such plan or arrangement to the extent required thereunder). Parent hereby acknowledges that the consummation of the transactions contemplated by this Agreement constitute a “change of control” or a “change in control,” as the case may be as if such service were with Parentbe, for vesting all purposes under each Company Benefit Plan that provides change in control, change of control or similar benefits.
(c) Parent will, and will cause its Affiliates to, provide credit for each Company Continuing Employee’s length of service with the Company and its Affiliates (as well as service with any predecessor employer of the Company or any of its Affiliates, to the extent that service with the predecessor employer is recognized by the Company or such Affiliate) for purposes of eligibility purposes (and vesting, but not for (i) purposes of early retirement subsidies any benefit accrual under a defined benefit or equity plan (except that such service shall be recognized for benefit accrual purposes in determining the applicable amount of any severance benefits, defined contribution plan contributions and paid time off) under each benefit plan, program, policy or arrangement of Parent and its Affiliates (each, a “Parent Benefit Plan”) in which Continuing Company Employees are eligible to participate after the Closing Date to the same extent that such service was recognized under a similar plan, program, policy or arrangement of the Company or any of its Affiliates, except that no such prior service credit will be required or provided to the extent that it results in a duplication of benefits.
(d) With respect to any Parent Benefit Plan that is a defined welfare benefit pension plan in which Company Continuing Employees are eligible to participate Parent shall, or shall cause its Affiliates to (i) waive all limitations as to preexisting conditions, exclusions and waiting periods and actively-at-work requirements with respect to participation and coverage requirements applicable to the Company Continuing Employees and their dependents and beneficiaries under such plan to the extent waived or satisfied under the applicable corresponding Company Benefit Plan and (ii) benefit accrual purposesprovide each Company Continuing Employee and his or her eligible dependents and beneficiaries with credit under such plan for any co-payments, except for vacation, if applicable) deductibles and similar expenses paid under corresponding Company Benefit Plans in any Parent Benefit Plan the calendar year in which such Company Continuing Employees may be Employee (or his or her eligible dependents or beneficiaries) becomes eligible to participate in such plan for purposes of satisfying any applicable deductible, out-of-pocket or similar requirements.
(e) Prior to the Closing, the Company shall take such steps as are necessary such that any portion of a bonus under the 2012 Annual Bonus Program that would otherwise be paid in equity after the Effective Time; (iii) Time to a Company Continuing Company Employee shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not instead be recognized to the extent that (A) such recognition would result paid in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plancash.
(cf) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Bishop Infrastructure III Acquisition Company, Inc.), Merger Agreement (Westway Group, Inc.)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE twelve (“5”12) months from the Effective Time (or if earlier, the date of the employee's ’s termination of employment with Parent and its Subsidiaries, including the Company and the Surviving Corporation), Parent shall, and shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to to, provide the employees each employee of the Company and its Subsidiaries who remain remains employed immediately after the Effective Time (collectively, the "“Company Continuing Employees"”) with (i) a base salary, salary and target bonus opportunities (excluding equity-based compensation)opportunity at least equal to that provided by the Company and its Subsidiaries immediately prior to the Offer Closing Date, and employee benefits (ii) all other compensation and benefits, that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits those provided by the Company and its Subsidiaries on immediately prior to the date of this AgreementOffer Closing Date (excluding, in all cases, equity-based compensation and retiree medical benefits).
(b) With respect The parties will take all actions necessary to any "employee benefit plan" as defined effectuate the provisions set forth in Section 3(36.07(b) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Disclosure Letter.
(c) Parent will, and will cause its Affiliates to, provide credit for each Company Continuing Employees Employee’s length of service with the Company and its Affiliates (as well as service with any predecessor employer of the Company or any of its SubsidiariesAffiliates, as to the case may be as if extent that service with the predecessor employer is recognized by the Company or such service were with ParentAffiliate under a corresponding Company Benefit Plan) for all purposes (including eligibility, for vesting and eligibility purposes (benefit level, but not for (i) purposes of early retirement subsidies any benefit accrual under any Parent Benefit Plan that is a cash balance or defined benefit pension plan plan, or vesting under any equity or equity incentive plan) under each plan, program, policy or arrangement of Parent and its Affiliates (ii) benefit accrual purposes, except for including vacation, if applicablepaid time-off and severance arrangements) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, same extent that such service shall not was recognized under a similar plan, program, policy or arrangement of the Company or any of its Affiliates, except that no such prior service credit will be recognized required or provided to the extent that (Ai) such recognition would result it results in a duplication of benefits benefits; or (Bii) such service was not recognized under the corresponding Company Employee Benefit Plan.
(cd) To the extent permitted by applicable Law, Parent will use its commercially reasonable efforts to cause each benefit plan of Parent and its Affiliates in which any Company Continuing Employee participates that is a health or welfare benefit plan (collectively, the “Parent Benefit Plans”) to (i) waive all limitations as to preexisting conditions, exclusions and service conditions (other than any retiree medical plans) with respect to participation and coverage requirements applicable to Company Continuing Employees, other than limitations applicable under the corresponding Company Benefit Plan or 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 Company Benefit Plan, (ii) honor any payments, charges and expenses of such Company Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Benefit Plan in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Benefit Plan during the calendar year in which the Effective Time occurs, and (iii) with respect to any medical plan (other than any retiree medical plan), waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Company Continuing Employee following the Effective Time to the extent such employee had satisfied any similar limitation under the corresponding Company Benefit Plan or 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 Company Benefit Plan immediately prior to the Effective Time.
(e) This Section 5.07 6.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.076.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.076.07. Nothing contained hereinin this Section 6.07, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 6.07 shall not create any right in any Company Employee, Worksite Employee or any other Person to any continued employment or service with or for the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Randstad North America, L.P.), Merger Agreement (SFN Group Inc.)
Employees; Benefit Plans. (a) During For a period of one year following the period commencing at Closing Date (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to will provide the current employees of the Company and its Subsidiaries as of the Effective Time who remain employed continue employment with the Surviving Corporation (“Employees”) with compensation and benefits that are no less favorable to such Employees than those provided under the Company’s compensation and benefit plans, programs, policies, practices, and arrangements in effect at the Effective Time; provided, however, that nothing herein will prevent the amendment or termination of any specific plan, program, or arrangement, or require that the Surviving Corporation provide or permit investment in the securities of the Surviving Corporation or interfere with the Surviving Corporation’s right or obligation to make such changes as are necessary to comply with applicable Law. Notwithstanding anything to the contrary set forth herein, nothing herein shall preclude the Surviving Corporation from terminating the employment of any Employee for any or no reason.
(b) During the Continuation Period, the Surviving Corporation and its Affiliates will honor all Company Benefit Plans in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such plans, agreements, or written arrangements.
(c) For all purposes under the employee benefit plans of the Surviving Corporation and its Affiliates providing benefits to any Employees after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation“New Plans”), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by each Employee will be credited with his or her years of service with the Company and its Subsidiaries on Affiliates before the date of this Agreement.
Effective Time (b) With including predecessor or acquired entities or any other entities with respect to any "employee benefit plan" service for which the Company and its Affiliates have given credit for prior service), to the same extent as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiariessuch Employee was entitled, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of before the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if to credit for such service were with Parentunder the corresponding Company Benefit Plan, for vesting any purpose where service credit for the applicable period is not provided to participants generally, and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition credit would result in a duplication of accrual of benefits. In addition, and without limiting the generality of the foregoing (i) each Employee immediately will be eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or comparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”) and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical, and/or vision benefits to any Employee, the Surviving Corporation will cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Employee and his or (B) her covered dependents, to the extent any such service was not recognized exclusions or requirements were waived or were inapplicable under any similar or comparable Company Benefit Plan, and the Surviving Corporation will cause any eligible expenses incurred by such Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Employee’s participation in the corresponding Company New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance, and maximum out-of-pocket requirements applicable to such Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(cd) This Section 5.07 6.7 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.076.7, express expressed or implied, shall is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.076.7. Without limiting the foregoing, no provision of this Section 6.7 will create any third party beneficiary rights in any current or former employee, director or consultant of the Company or its Subsidiaries in respect of continued employment (or resumed employment) or any other matter. Nothing contained hereinin this Section 6.7 is intended to amend any Company Benefit Plan, express or implied (i) shall be construed to establish, amend interfere with Parent’s or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of their respective Affiliates ’s right from and after the Effective Time to amend, modify amend or terminate any benefit plan, program, agreement Company Benefit Plan or arrangement at any time assumed, established, sponsored the employment or maintained provision of services by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee director, employee, independent contractor or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverconsultant.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Hampshire Group LTD), Merger Agreement (Naf Holdings Ii, LLC)
Employees; Benefit Plans. (a) During For a period of one year following the period commencing at Closing Date (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation or any of their respective Subsidiaries or Affiliates to, recognize all service provide to each individual who, immediately prior to the Effective Time is an employee of the Company Continuing Employees with the Company or any of its SubsidiariesSubsidiaries (each, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for an “Employee”) (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan the same base salary or hourly wage rate provided to such Employee immediately prior to the Effective Time, (ii) the same short-term (annual or more frequent) bonus or commission opportunity provided to such Employee immediately prior to the Effective Time, and (iii) other compensation and benefits (excluding equity and equity-based awards, which will remain discretionary) that are no less favorable for all Employees in the aggregate as those provided to such Employees in the aggregate under the Company’s and its Subsidiaries’ compensation and benefit accrual purposesplans, except for vacationprograms, if applicable) policies, agreements and arrangements in any Parent Benefit Plan in which such Company Continuing Employees may be eligible effect immediately prior to participate the Effective Time. Notwithstanding anything to the contrary set forth herein, after the Effective Time; , nothing herein shall preclude the Surviving Corporation or any of its Subsidiaries from terminating the employment of any Employee for any lawful reason.
(iiib) Continuing Company Parent shall, or shall cause the Surviving Corporation and each of their respective Subsidiaries and Affiliates to, honor all consulting Company Plans (including all severance, change of control and similar plans and agreements) in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, termination thereof that may be permitted by such service shall not be recognized Company Plans to the extent not in violation of any requirements hereunder; provided, however, that nothing herein shall prevent the amendment or termination of any specific plan, program, policy, agreement or arrangement, or interfere with Parent’s, the Surviving Corporation’s or any of their respective Subsidiaries’ or Affiliates’ rights or obligations to make such changes as are necessary to comply with applicable Law. During the Continuation Period, Parent shall provide each Employee who suffers a termination of employment under circumstances that would have given the Employee a right to severance payments and benefits under the Company’s severance policy in effect immediately prior to the Effective Time (Athe “Company Severance Plan”) with severance payments and benefits no less favorable than those that would have been provided to such recognition Employee under the Company Severance Plan.
(c) For all purposes under all employee benefit plans (excluding (x) for benefit accrual under any pension plans or (y) equity compensation plans) of Parent, the Surviving Corporation and their respective Subsidiaries and Affiliates providing benefits to any Employee after the Effective Time (the “New Plans”), each Employee shall receive full credit for such Employee’s years of service with the Company and its Subsidiaries before the Effective Time (including predecessor or acquired entities or any other entities for which the Company and its Subsidiaries have given credit for prior service), to the same extent as such Employee was entitled, prior to the Effective Time, to credit for such service under any similar or comparable Company Plan and, with respect to any New Plan for which there is no similar or comparable Company Plan, to the same extent as such service would be recognized if it had been performed as an employee of Parent, the Surviving Corporation or their respective Subsidiaries or Affiliates (in each case except to the extent such credit would result in a duplication of benefits accrual of benefits). In addition, where applicable, and without limiting the generality of the foregoing: (i) at the Effective Time, each Employee immediately shall be eligible to participate, without any waiting time, in each New Plan to the extent such waiting time was satisfied under a similar or comparable Company Plan in which such Employee participated immediately before the Effective Time (Bsuch plans, collectively, the “Old Plans”); (ii) Parent shall cause all pre-existing condition exclusions or limitations and actively-at-work requirements of each New Plan to be waived or satisfied for such service was not recognized Employee and his or her covered dependents to the extent waived or satisfied under the analogous Old Plan as of the Effective Time; and (iii) Parent shall cause all eligible expenses incurred by each Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Employee’s participation in the corresponding Company New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(cd) This Section 5.07 shall be binding upon and inure solely With respect to any accrued but unused vacation time to which any Employee is entitled pursuant to the benefit vacation policy applicable to such Employee immediately prior to the Effective Time (the “Vacation Policy”), Parent shall, or shall cause the Surviving Corporation or any of each their respective Subsidiaries or Affiliates to, (i) allow such Employee to use such accrued vacation (subject to any maximums which may prohibit the Employee from accruing any new vacation time until such prior time is used), and (ii) if any Employee’s employment terminates during the Continuation Period under circumstances entitling the Employee to severance pay under the Company Severance Plan, pay the Employee, in cash, an amount equal to the value of the parties to this Agreement, and nothing accrued vacation time.
(e) Nothing in this Section 5.075.9, whether express or implied, shall confer upon any other Person current or former employee of the Company, Parent, the Surviving Corporation or any of their respective Subsidiaries or Affiliates, any rights or remedies including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Section 5.075.9. Nothing contained herein, express or implied (i) shall be construed No provision of this Section 5.9 is intended to establishmodify, amend or modify create any employee benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability plan of the Company, Parent, Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent Corporation or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverAffiliates.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
Employees; Benefit Plans. (a) During Following the Closing Date and except to the extent an alternative treatment is set forth in this Section 5.14, NBT may choose to maintain any or all of the Exxxx Benefit Plans in its sole discretion, and Exxxx and Exxxx Bank shall cooperate with NBT in order to effect any plan terminations to be made as of the Effective Time as set forth in this Section 5.14 and in accordance with the terms of the applicable Exxxx Benefit Plans and applicable law. For the period commencing at the Effective Time and ending on the date which is FIVE twelve (“5”12) months from after the Effective Time (or if earlieruntil the applicable Continuing Employee’s earlier termination of employment), NBT shall provide, or cause to be provided, to each employee of Exxxx Bank who continues with the date Surviving Bank as of the employee's Closing Date (a “Continuing Employee”) (i) a base salary or a base rate of pay at least equal to the base salary or base rate of pay provided to similarly situated employees of NBT or any Subsidiary of NBT (or until the applicable Continuing Employee’s earlier termination of employment with Parent and its Subsidiariesemployment), Parent and (ii) other benefits (other than severance or termination pay in order to avoid a duplication of benefits, if applicable) at least substantially comparable in the aggregate to the benefits provided to similarly situated employees of NBT or any Subsidiary of NBT. For any Exxxx Benefit Plan terminated for which there is a comparable NBT Benefit Plan of general applicability, NBT shall cause take all commercially reasonable action so that Continuing Employees shall be entitled to participate in such NBT Benefit Plan to the Surviving Corporation and each same extent as similarly-situated employees NBT (it being understood that inclusion of its Subsidiaries, as applicable, to provide the employees of the Company Exxxx and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, Exxxx Bank in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With NBT Benefit Plans may occur at different times with respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent different plans). NBT shall cause each NBT Benefit Plans") Plan in which any Company Continuing Employees will are eligible to participate effective as to take into account for purposes of eligibility and vesting under the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes NBT Benefit Plans (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan accrual) the service of such employees with Exxxx or (ii) benefit accrual purposesExxxx Bank to the same extent as such service was credited for such purpose by Exxxx or Exxxx Bank; provided, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or retroactive application. Nothing herein shall limit the ability of NBT to amend or terminate any of the Exxxx Benefit Plans or NBT Benefit Plans in accordance with their terms at any time. Following the Closing Date, NBT shall honor, in accordance with Exxxx’x policies and procedures in effect as of the date hereof, any employee expense reimbursement obligations of Exxxx for out-of-pocket expenses incurred during the calendar year in which the Closing occurs by any Continuing Employee and all accrued but unused vacation credited to any Continuing Employee under Exxxx Benefit Plans.
(Bb) Without limiting the generality of Section 5.14(a), prior to the Closing Date, (i) Exxxx or Exxxx Bank, as applicable, shall take all actions necessary to terminate the Exxxx Bancorp, Inc. Executive Severance Plan and Exxxx Bank Change in Control Severance Plan (together, the “Exxxx Bank Sxxxxxxxx Plan”), and to adopt written resolutions, the form and substance of which shall be reasonably satisfactory to NBT, to terminate such service was Exxxx Bank Sxxxxxxxx Plan, and (ii) if requested by NBT in writing not recognized less than forty-five (45) days prior to the Closing Date, Exxxx or Exxxx Bank, as applicable, shall take all actions necessary to cease contributions to and terminate each Exxxx Benefit Plan that is intended to qualify under Code Section 401(k) (each, a “Exxxx 401(k) Plan”), and to adopt written resolutions, the form and substance of which shall be reasonably satisfactory to NBT, to terminate such Exxxx 401(k) Plan; provided, however, that such termination may be made contingent upon the consummation of the transactions contemplated by this Agreement. In such event, NBT shall take any and all actions as may be required to permit Continuing Employees to participate in a NBT Benefit Plan that is intended to qualify under Code Section 401(k) (an “NBT 401(k) Plan”) immediately following the Closing Date and to permit Continuing Employees to roll over their account balances in the Exxxx 401(k) Plan, including any participant loans under the corresponding Company Employee Exxxx 401(k) Plan, into the NBT 401(k) Plan. If requested by NBT in writing at any time following the date of this Agreement, Exxxx or Exxxx Bank, as applicable, shall initiate the process to terminate its tax-qualified defined benefit pension plan, with such termination effective as soon as practicable after the Effective Time, and Exxxx shall keep NBT informed regarding the progress and status of the termination process.
(c) This If employees of Exxxx or Exxxx Bank become eligible to participate in a medical, dental, vision, prescription drug, disability plan or life insurance plan of NBT upon termination of such plan of Exxxx or Exxxx Bank, NBT shall use all commercially reasonable efforts to cause each such plan to (i) waive any preexisting condition limitations to the extent such conditions are covered under the applicable NBT Benefit Plan, (ii) provide credit under such plans for any deductible, co-payment and out-of-pocket expenses incurred by the employees and their beneficiaries during the portion of the calendar year prior to such participation and (iii) waive any waiting period limitation, actively-at-work requirement or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous Exxxx Benefit Plan prior to the Effective Time; provided, however, NBT shall not cause any coverage of a Continuing Employee or such Continuing Employee’s dependents to terminate under any Exxxx Benefit Plan which is a health or welfare plan prior to the time such Continuing Employees or such Continuing Employee’s dependents, as applicable, have been offered participation in the health and welfare plans common to all employees of NBT and their dependents, except in the case of a termination of employment or other service.
(d) From and after the Effective Time, NBT agrees to honor all obligations under the employment agreements, change in control agreements, supplemental executive retirement plans, and similar arrangements as set forth on Exxxx Disclosure Schedule 5.14(d). NBT shall assume and honor all Exxxx Benefit Plans listed on Exxxx Disclosure Schedule 5.14(d) in accordance with their terms. Exxxx Disclosure Schedule 5.14(d) sets forth the names of all participants, the value of each participant’s account balance and the amount of each lump sum or installment payment under the applicable non-qualified deferred compensation plan.
(e) NBT agrees to pay to each employee of Exxxx or Exxxx Bank that is not covered by a written employment or severance agreement and is terminated by NBT or any of its Subsidiaries, without cause, within six (6) months following the Effective Time, a severance payment equal to two (2) weeks of his or her then current base salary multiplied by the number of total completed years of service with Exxxx or Exxxx Bank; provided, however, that for vice presidents and above, severance payment shall equal twenty-six (26) weeks of his or her base salary and for all other employees, the minimum severance payment shall equal not less than twelve (12) weeks of his or her base salary and the maximum severance payment shall not exceed twenty-six (26) weeks of his or her base salary; and provided further, that such employee enters into a release of claims in a form reasonably satisfactory to NBT and that such employee does not voluntarily leave employment with Exxxx or Exxxx Bank prior to the Effective Time.
(f) To the extent necessary, NBT and Exxxx may provide a retention pool as mutually agreed by NBT and Exxxx to enable NBT and Exxxx to provide retention incentives to certain employees of Exxxx or Exxxx Bank who are not covered by a written employment agreement, the recipients and amounts to be mutually determined by NBT and Exxxx. Such retention incentives will be in addition to, and not in lieu of, any severance payment, including the amount that may be paid pursuant to Section 5.07 5.14(e). Such designated employees will enter into retention agreements to be provided by Exxxx and reasonably acceptable to NBT.
(g) Notwithstanding anything in this Agreement to the contrary, NBT shall honor and agree to not terminate the Exxxx Benefit Plans set forth on Exxxx Disclosure Schedule 5.14(g) and the parties agree that the benefits under such Exxxx Benefit Plans shall be binding upon paid out in accordance with the terms and inure solely conditions of such Exxxx Benefit Plans; provided, however, that Exxxx or Exxxx Bank, as applicable, shall take all actions necessary to cease all participant contributions to all such plans following the benefit of each Closing Date, subject to compliance with Section 409A of the parties to Code, the terms and conditions of such plans and applicable law.
(h) Nothing contained in this Agreement, and nothing in this Section 5.07, express expressed or implied, shall confer upon (i) give any person, other Person than the parties hereto, any rights or remedies of any nature whatsoever whatsoever, including any right to continued employment or service, under or by reason of this Section 5.07. Nothing contained herein5.14, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter cause any third party beneficiary rights in any current or limit former employee, director, other individual service provider of Exxxx or any of its Subsidiaries to enforce the ability provisions of the Surviving Corporationthis Section 5.14 or any other matter related thereto, Parent or (iii) be construed as an amendment to any Exxxx Benefit Plan, NBT Benefit Plan, or other employee benefit plan of NBT, NBT Bank, Exxxx or any of their respective Affiliates Affiliates, or be construed to amend, modify prohibit the amendment or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits termination of any nature or kind whatsoeversuch plan.
(di) With respect If requested by NBT, Exxxx shall take all such actions as NBT may request in order to matters described in this Section 5.07fully and timely comply with any and all requirements of the WARN Act, the Company will not send including providing notices to employees of Exxxx or any written notices or other written communication materials to Company Employees without the prior written consent Subsidiary of ParentExxxx.
Appears in 2 contracts
Samples: Merger Agreement (Evans Bancorp Inc), Merger Agreement (Evans Bancorp Inc)
Employees; Benefit Plans. (a) During No later than forty-five (45) days prior to the date of the Company Stockholders Meeting, Parent (or its designee) shall offer employment to such employees of the Company or its Subsidiaries as Parent may determine in its sole discretion and such offers of employment shall be conditioned on the Closing. Parent shall provide, or shall cause to be provided, to each such employee who accepts an offer of employment (the “Continuing Employees”) compensation and benefits that, taken as a whole, are at a level substantially similar to the compensation and benefits (other than severance benefits and Equity Securities) provided by the Company or its Subsidiaries to such Continuing Employees immediately prior to the Effective Time; provided, however, that nothing in this Agreement shall create any right to continued employment in any Continuing Employee or prohibit the Surviving Corporation from terminating the employment of any Continuing Employee or from amending, modifying or terminating any Company Plan.
(b) For purposes of vesting, eligibility to participate and levels of benefits (but not accrual) under the employee benefit plans of Parent and its Subsidiaries providing benefits to any Continuing Employee after the Effective Time (including the Company Plans), Parent shall use Commercially Reasonable Efforts to provide that each Continuing Employee shall be credited with his or her years of service with the Company and its Subsidiaries and their respective predecessors before the Effective Time, to the same extent as such Continuing Employee was entitled, before the Effective Time, to credit for such service under any similar Company Plan in which such Continuing Employee participated or was eligible to participate immediately prior to the Effective Time, provided that the foregoing shall not apply to the extent that its application would result in a duplication of benefits with respect to the same period commencing at of service. In addition, and without limiting the generality of the foregoing, Parent shall use its Commercially Reasonable Efforts to cause (i) any applicable waiting period under any employee benefit plan of Parent and its Subsidiaries providing benefits to any Continuing Employee after the Effective Time to be waived with respect to each such Continuing Employee to the extent coverage under such plan is replacing comparable coverage under a Company Plan in which such Continuing Employee participated immediately before the Effective Time and (ii) for purposes of each such plan providing medical, dental, pharmaceutical and/or vision benefits to any Continuing Employee, all pre-existing condition exclusions and actively-at-work requirements of such plan to be waived for such Continuing Employee and his or her covered dependents, to the extent such conditions were inapplicable or waived under the comparable Company Plan of the Company or its Subsidiaries in which such Continuing Employee participated immediately prior to the Effective Time. Parent shall take Commercially Reasonable Efforts to cause any eligible expenses incurred by any Continuing Employee and his or her covered dependents during the portion of the plan year of the applicable Company Plan ending on the date which such Continuing Employee’s participation in the corresponding employee benefit plan of Parent and its Subsidiaries begins to be taken into account under such plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such plan.
(c) The provisions of this Section 5.07 and Section 5.16(f) are solely for the benefit of the parties, and no provision of this Section 5.07 or Section 5.16(f) is FIVE intended to, or shall, constitute the establishment or adoption of or an amendment to any employee benefit plan for purposes of ERISA or otherwise and no current or former employee or independent contractor of the Company, the Surviving Corporation or any of their respective Subsidiaries, or any other individual associated therewith shall be regarded for any purpose as a third party beneficiary of this Section 5.07 or Section 5.16(f) or have the right to enforce the provisions hereof or thereof.
(“5”d) months from From time to time during the Effective Time (or if earlier, period between the date of this Agreement and the employee's termination of employment with date referred to in Section 5.07(a), the Company shall, and shall cause its Subsidiaries to, make available to Parent and its Subsidiaries), Parent shall cause Representatives reasonable access (subject to the Surviving Corporation provisions in the following sentence) to such of the officers and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain as the Parent may from time to time reasonably request for purposes of: (x) evaluating which, if any, of those persons may be employed immediately after the Effective Time (collectivelyby Parent, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent Merger Sub or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries their Affiliates from and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iiiy) Continuing Company shall honor all consulting or advisory agreement previously entered intodiscussing with any such persons the terms and conditions, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedif any, that such service shall not on which they may be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreementemployed by Parent, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent Merger Sub or any of their respective Affiliates from and after the Effective Time; and (z) making (or not making) offers of employment as provided in Section 5.07(a), notwithstanding any contrary provision of the Confidentiality Agreement. Such access will include the opportunity for individual or group meetings (either in person or through telephonic, video or other electronic communication media) with one or more such persons, or all employees, at offices, plants and other facilities of Seller and its Subsidiaries, or at off-site locations, in each case as reasonably requested by Parent, subject 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with following limitations:
(i) In the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits case of any nature access involving in-person meetings at offices, plants and other facilities of Seller and its Subsidiaries, such access will be on such dates and at times (either before, during or kind whatsoeverafter normal business hours for the employees involved) mutually agreed by Parent and the Company, and subject to the normal safety and security restrictions at the location of such meetings.
(dii) With respect to matters described in this Section 5.07In each case, such access will not unreasonably interfere with the business and operations of the Company and its Subsidiaries and will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parentbe conducted in compliance with applicable Laws and Permits.
Appears in 2 contracts
Samples: Merger Agreement (Ormat Technologies, Inc.), Merger Agreement (Us Geothermal Inc)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation to (i) provide to each Target Employee who remains employed by the Surviving Corporation (I) for the twelve (12) month period immediately following the Effective Time, substantially similar salary or wages to that set forth on Section 5.13(a) of the Disclosure Schedules and (II) for the later of the remainder of the current benefit year or until such Target Employees are able to join Parent’s employee benefit plans, substantially similar employee benefits as those provided by the applicable Target Employee Plans and in effect for each such Target Employee as of its Subsidiariesimmediately prior to the Effective Time, unless as otherwise required by ERISA or other Laws and (ii) maintain (I) the employee bonus plan of the Target listed on Schedule 7.06(a) of the Disclosure Schedules and in effect immediately prior to the Closing (the “Target Bonus Plan”) with the same bonus opportunity and performance targets for the period ending on December 31, 2014 and (II) the employee commission plans of the Target listed on Schedule 7.06(a) of the Disclosure Schedules and in effect immediately prior to the Closing (the “Target Commission Plan”) with the same commission opportunity and sales targets for the period ending on December 31, 2014, for each Eligible Target Employee; provided that, (A) all determinations as to the achievement of the bonus targets and commissions will be made by the Surviving Corporation in accordance with the terms of the Target Bonus Plan and Target Commission Plan, as applicable, (B) the Surviving Corporation shall make such bonus and commission payments to provide the employees of Eligible Target Employees on the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation)Bonus Payment Date, and employee benefits that are, in (C) the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided aggregate amount of bonuses paid by the Company and its Subsidiaries on Surviving Corporation shall not exceed the date of this Agreementamounts accrued for by the Target with respect to the Target Bonus Plan.
(b) With respect to To the extent that any "Target Employee will participate in any employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent , arrangement or any of its Subsidiaries, excluding both any retiree healthcare plans or programs policy 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 Employees will participate effective as of following the Effective Time: (i) such Target Employee will receive credit for all purposes (other than accrual of benefits under any defined benefit pension plan, vesting of contributions under any defined contribution plan and eligibility for any anniversary stock grants) for service with the Target, (ii) with respect to medical, dental, vision or other health benefits or disability or life insurance benefits, Parent shalland its Subsidiaries will use their commercially reasonable efforts to cause any and all pre-existing condition limitations, waiting periods and evidence of insurability requirements to be waived with respect to such Target Employees and eligible dependents, (iii) Parent and its Subsidiaries will use their commercially reasonable efforts to provide credit for any co-payments, deductible payments, premium amounts and similar payments or shall cause expenses incurred by the Surviving Corporation toTarget Employees in the plan year that includes the Effective Time.
(c) Notwithstanding anything to the contrary contained in this Agreement, recognize all service nothing contained in this Agreement, whether express or implied, will (i) constitute or create an employment agreement with any employee of the Company Continuing Employees with the Company Target, Parent or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement arrangement, (iii) other than as required by applicable Law, obligate Parent or any of its Subsidiaries to (A) maintain any particular benefit plan or (B) retain the employment of any particular employee, or (iv) give any third-party the right to enforce any of the provisions of this Agreement, except as expressly provided in Section 7.07.
(d) Notwithstanding any contrary provisions in this Agreement, nothing in this Section 7.06 will (i) be deemed or construed to be an amendment or other modification to any Target Employee Plans or any Parent employee benefit plans, or (ii) shall alter create any third party rights in any current or limit the ability former employee, consultant, director or other service provider of the Surviving CorporationParent, Parent Target, or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee (or any other Person to any continued employment with the Surviving Corporation, Parent beneficiaries or any dependents of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeversuch persons).
(de) With respect Immediately prior to matters described in this Section 5.07the Closing, the Company Target will not send terminate any written notices Target Employee Plan that contains a cash or other written communication materials deferral arrangement under Section 401(k) of the Code if so requested by the Parent, and will adopt resolutions of the Target’s board of directors in form and substance reasonably satisfactory to Company Employees without the prior written consent of ParentParent effecting such termination.
Appears in 2 contracts
Samples: Merger Agreement (World Energy Solutions, Inc.), Merger Agreement (Enernoc Inc)
Employees; Benefit Plans. (a) During For a period of one year following the period commencing at Closing Date (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to Affiliates will provide the current employees of the Company and its Subsidiaries who remain employed immediately after (other than those employees covered by a collective bargaining agreement) as of the Effective Time who continue employment with the Surviving Corporation and its Affiliates (collectively, the "Company Continuing “Employees"”) with base salarycompensation and benefits that are no less favorable in the aggregate than those provided under the Company’s compensation and benefit plans, target bonus opportunities programs, policies, practices and arrangements (excluding equity-based compensationprograms) in effect at the Effective Time (it being understood that discretionary incentive programs will remain discretionary); provided, and employee benefits however, that arenothing herein will prevent the amendment or termination of any specific plan, program or arrangement, require that the Surviving Corporation provide or permit investment in the aggregatesecurities of the Surviving Corporation or interfere with the right or obligation of the Surviving Corporation or its Affiliates to make such changes as are necessary to comply with applicable Law. Notwithstanding anything to the contrary set forth herein, no less favorable than nothing herein shall preclude the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by Surviving Corporation or its Affiliates from terminating the employment of any Employee for any reason for which the Company and its Subsidiaries on could have terminated such Employee prior to the date of this AgreementEffective Time.
(b) With respect The Surviving Corporation and its Affiliates will honor all Company Benefit Plans (including any severance, retention, change of control and similar plans, agreements and written arrangements) described in Section 3.13(a) of the Company Disclosure Letter in accordance with their terms, subject to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained amendment or termination thereof that may be permitted by Parent such plans, agreements or any of its Subsidiarieswritten arrangements. Notwithstanding the preceding sentence, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectivelyduring the Continuation Period, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize will provide all service U.S. Employees (other than those covered by an individual agreement providing severance benefits outside the Company’s severance policies) who suffer a termination of employment with severance benefits no less favorable than those that would have been provided to such Employees under the Company Continuing Employees with the Company or any of its Subsidiaries, severance policies as the case may be as if such service were with Parent, for vesting set forth in ParentCo’s Termination Pay and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is for Certain Salaried Employees dated as of January 1, 2003, a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in copy of which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized has been heretofore provided to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee PlanCompany.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, 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 5.07. Nothing contained herein5.7 will create any third party beneficiary rights in any current or former employee, express director or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability consultant of the Surviving Corporation, Parent Company or any its Subsidiaries in respect of their respective Affiliates to amend, modify continued employment (or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee resumed employment) or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoevermatter.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Bandag Inc), Merger Agreement (Bandag Inc)
Employees; Benefit Plans. (a) During the period commencing at Following the Effective Time Time, CenterState shall maintain or cause to be maintained employee benefit plans and ending compensation opportunities for the benefit of employees who are full time employees of NCC or any of its Affiliates on the date which is FIVE Closing Date (“5Covered Employees”) months from that provide employee benefits and compensation opportunities which, in the Effective Time (aggregate, are substantially comparable to the employee benefits and compensation opportunities that are made available on a uniform and non-discriminatory basis to similarly-situated employees of CenterState or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable; provided, however, that in no event shall any Covered Employee be eligible to provide the participate in any closed or frozen plan of CenterState or its Subsidiaries, including any such plan that is closed or frozen with respect to new employees of CenterState. CenterState shall give the Company Covered Employees full credit for their prior service with NCC and any of its Subsidiaries who remain employed immediately after the Effective Time Affiliates (collectivelyi) for purposes of eligibility (including initial participation and eligibility for current benefits) and vesting under any qualified or non-qualified employee benefit plan maintained by CenterState and in which Covered Employees may be eligible to participate and (ii) for all purposes under any welfare benefit plans, the "Company Continuing Employees") with base salaryvacation plans, target bonus opportunities (excluding equity-based compensation), severance plans and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided similar arrangements maintained by the Company and its Subsidiaries on the date of this AgreementCenterState.
(b) With respect to any "employee benefit plan of the Surviving Entity that is a health, dental, vision or other welfare plan in which any Covered Employee is eligible to participate, for the plan year in which such Covered Employee is first eligible to participate, the Surviving Entity or its applicable Subsidiary shall use its commercially reasonable efforts to (i) cause any pre-existing condition limitations or eligibility waiting periods under such Surviving Entity or Subsidiary plan to be waived with respect to such Covered Employee and his or her covered dependents to the extent such condition was or would have been covered under the NCC Benefit Plan in which such Covered Employee participated immediately prior to the Effective Time, and (ii) recognize any health, dental, vision or other welfare expenses incurred by such Covered Employee and his or her covered dependents in the year that includes the Closing Date (or, if later, the year in which such Covered Employee is first eligible to participate) for purposes of any applicable copayment, deductibles and annual out-of-pocket expense requirements under any such health, dental, vision or other welfare plan. Neither CenterState nor any of its Subsidiaries shall terminate the existing coverage of any Covered Employee or his or her dependents under any of the NCC or Affiliate health, dental, vision or other welfare plans, programs or benefits prior to the time such Covered Employees and their dependents become eligible to participate in the health, dental or other welfare plans, programs and benefits common to all employees of CenterState or any CenterState Subsidiary and their dependents.
(c) Prior to the Effective Time and subject to the consummation of the transactions contemplated by this Agreement, NCC shall take, and shall cause each of its Subsidiaries to take, all actions requested no later than ten (10) days prior to the Closing by CenterState that may be necessary or appropriate to (i) cause one or more NCC Benefits Plans to terminate as of the Effective Time, or as of the date immediately preceding the date that includes the Effective Time, (ii) cause benefit accruals and entitlements under any NCC Benefit Plan to cease as of the Effective Time, or as of the date immediately preceding that date that includes the Effective Time, (iii) cause the continuation on and after the Effective Time of any contract, arrangement or insurance policy relating to any NCC Benefit Plan for such period as may be requested by CenterState, or (iv) facilitate the merger of any NCC Benefit Plan into any employee benefit plan maintained by CenterState or a CenterState Subsidiary; provided that NCC shall not be required to take any action that would result in the violation by NCC of any contract with a third party. All resolutions, notices, or other documents issued, adopted or executed in connection with the implementation of this Section 5.11(c) shall be subject to CenterState’s reasonable prior review, which shall not be unreasonably withheld, conditioned or delayed. If CenterState requires NCC to terminate a medical plan having a flexible spending arrangement (“FSA”) under Section 125 of the Code, NCC and each of its Subsidiaries may continue its FSA through the Effective Time.
(d) Nothing in this Section 5.11 shall be construed to (i) limit the right of CenterState or any of its Subsidiaries (including, following the Closing Date, NCC or any of its Subsidiaries) to amend or terminate any NCC Benefit Plan or other employee benefit plan" , to the extent such amendment or termination is permitted by the terms of the applicable plan; (ii) establish, amend, or modify any NCC Benefit Plan or CenterState Benefit Plan or any other benefit or employment plan, program, agreement or arrangement; or (iii) require CenterState or any of its Subsidiaries (including, following the Closing Date, NCC and any of its Subsidiaries) to retain the employment of any particular Covered Employee for any fixed period of time following the Closing Date, and the continued retention (or termination) by CenterState or any of its Subsidiaries of any Covered Employee subsequent to the Effective Time shall be subject in all events to CenterState’s or its applicable Subsidiary’s normal and customary employment procedures and practices, including customary background screening and evaluation procedures, and satisfactory employment performance.
(e) If, within the period ending on the later of (i) nine (9) months after the Effective Time or (ii) forty-five (45) days after the completion of the Informational Systems Conversion, unless otherwise addressed in an employment agreement entered into with CenterState or CenterState Bank or an employment, change in control or severance agreement set forth in NCC Disclosure Schedule Section 3.11(a), any Covered Employee who is terminated by CenterState or its Subsidiaries other than “for cause” (as defined under the policies of CenterState and/or its Subsidiaries) or resigns because he or she was offered a position with a material reduction in Section 3(3) rate of ERISA maintained by Parent base pay or that is outside a 50-mile radius of the current address of his or her primary work location at NCC or any of its Subsidiaries, excluding both then CenterState shall, subject to such Covered Employee’s execution of appropriate releases, pay severance to such Covered Employee in an amount equal to two (2) weeks of base salary for each twelve (12) months of such Covered Employee’s prior employment with NCC, NBC or any retiree healthcare plans or programs maintained by Parent or applicable Subsidiary; provided, however, that in no event will the total amount of severance for any single Covered Employee be less than four (4) weeks of such base salary nor greater than twenty-six (26) weeks of such base salary. Any severance to which a Covered Employee may be entitled in connection with a termination occurring more than nine (9) months after the Effective Time will be as set forth in the severance policies of CenterState and its Subsidiaries as then in effect.
(f) After the Effective Time, all accrued and unused sick time for all employees of NCC and any of its Subsidiaries and any equity compensation arrangements maintained by Parent or all accrued and unused vacation time for all employees of NCC and any of its Subsidiaries shall be treated as set forth in CenterState Disclosure Schedule Section 5.11(f).
(collectivelyg) The Parties understand and agree that, "Parent Benefit Plans"as a matter of law, subject to and as a result of the Merger and the Bank Merger, respectively, CenterState will assume and become responsible for all contractual obligations, and shall succeed to all contractual obligations, of NCC (including employment, supplemental executive retirement benefits, split-dollar and other agreements) in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shalland CenterState Bank will assume and be responsible for all contractual obligations, or and shall cause the Surviving Corporation tosucceed to all contractual obligations, recognize all service of NBC (including employment, supplemental executive retirement benefits, split-dollar and other agreements) as of the Company Continuing Employees effective time of the Bank Merger. Prior to the Effective Time, if CenterState requests NCC’s assistance with the Company respect to implementing new or replacement employment related agreements for one or more employees of NCC or any of its SubsidiariesSubsidiaries in connection with the Merger, as NCC agrees to (and shall cause its Subsidiaries to) cooperate in good faith to facilitate and assist with respect to implementing any such new or replacement employment related agreements.
(h) CenterState shall take all commercially reasonable actions necessary, including any needed plan or policy amendments, to cause the trustee of the CenterState Banks, Inc. Employee Savings Trust, if requested to do so by a Covered Employee, to accept a direct “rollover” in cash of all or a portion of such employee’s distribution from NCC’s (or its Affiliate’s) qualified 401(k) savings plan (collectively, the “NCC 401(k) Plan”) (provided that the CenterState Banks, Inc. Employee Savings Trust shall only accept cash and not in kind rollovers). In the case of a Covered Employee with an outstanding loan(s) under the NCC 401(k) Plan, CenterState shall use commercially reasonable efforts to permit the Covered Employee to rollover such outstanding loan balance(s) to the CenterState Banks, Inc. Employee Savings Trust (subject to the requirements and limitations of the applicable provisions of the Code); provided, however, that the Covered Employee may be as transfer such loan(s) only if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan Covered Employee elects to rollover his or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized her entire account balance under the corresponding Company Employee NCC 401(k) Plan.
(ci) This Section 5.07 NCC shall establish a retention bonus pool to be paid to certain NCC employees as shall be binding upon determined by NCC after consultation with CenterState (including in amounts of payments and inure solely timing of payments), with the amounts of such retention bonuses payable pursuant to the benefit of each of retention bonus pool not to exceed the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms amounts set forth in this on NCC Disclosure Schedule Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment 5.11(i) attached hereto. CenterState may establish an additional retention bonus pool, with the Surviving Corporationsuch recipients, Parent or any amounts of their respective Subsidiaries or compensation or benefits payments and timing of any nature or kind whatsoeverpayments designated by CenterState.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (National Commerce Corp), Merger Agreement (CenterState Bank Corp)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE twelve (“5”12) months from the Effective Time (or if earlier, the date of the employee's ’s termination of employment with the Rooster Surviving Corporation, Parent and its or any of their respective Subsidiaries), and to the extent consistent with the terms of the governing plan documents, Parent shall cause the Rooster Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "“Company Continuing Employees"”) with annual base salarysalary or hourly wage rate, annual target cash bonus opportunities opportunity amount (excluding equity-based compensation), and other employee benefits (excluding any equity and equity-based, change in control, retention, retiree welfare and defined benefit retirement benefits) that are, in the aggregate, no less favorable than substantially comparable to the annual base salarysalary or hourly wage rate, annual target cash bonus opportunities opportunity amount (excluding equity-based compensation), and other employee benefits (excluding any equity and equity-based, change in control, retention, retiree welfare and defined benefit retirement benefits) provided by the Company and its Subsidiaries to such Company Continuing Employees on the date of this Agreement. This Section 5.09 shall not apply to any Company Continuing Employee who is covered by a collective bargaining or similar agreement.
(b) With respect to any "“employee benefit plan" ” as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, Subsidiaries (but excluding both any retiree healthcare welfare plans or programs maintained by Parent or any of its Subsidiaries Subsidiaries, any defined benefit retirement plans or programs maintained by Parent or any of its Subsidiaries, and any equity or equity-based compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent Benefit Plans"Subsidiaries) in which any Company Continuing Employees will participate be offered participation (collectively, “Parent Benefit Plans”), effective as of the Effective Time, and subject to the terms of the governing plan documents, Parent shall, or shall cause the Rooster Surviving Corporation to, recognize credit all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and purposes of eligibility purposes to participate (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined vesting or benefit pension plan or (ii) benefit accrual purposesaccrual, except for vacation, if applicable) for full or partial years of service in any such Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective TimePlan; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized credited to the extent that that: (Ai) such recognition crediting would result in a duplication of benefits benefits; or (Bii) such service was not recognized credited under the corresponding Company Employee Plan.
(c) Effective no later than the day immediately preceding the Closing Date, the Company shall terminate any Company Employee Plans maintained by the Company or its Subsidiaries that Parent has requested to be terminated by providing a written notice to the Company at least thirty (30) days prior to the Closing Date. No later than the day immediately preceding the Closing Date, the Company shall provide Parent with evidence that such Company Employee Plans have been terminated.
(d) This Section 5.07 5.09 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.075.09, express or implied, shall confer upon any Company Employee, any Company Continuing Employee, any dependent or beneficiary, or any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.09. Nothing contained hereinin this Section 5.09, express or implied implied: (i) shall be construed to establish, amend amend, or modify any employee benefit plan, program, agreement agreement, or arrangement or arrangement; (ii) shall alter or limit the ability of the Surviving Corporation, Parent Parent, or any of their respective Affiliates to amend, modify modify, or terminate any benefit plan, program, agreement agreement, or arrangement at any time assumed, established, sponsored sponsored, or maintained by any of them; or (iii) shall prevent the Rooster Surviving Corporation, Parent, or any of their respective Affiliates from terminating the employment of any Company Continuing Employee following the Effective Time. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 5.09 shall not create any right in any Company Employee, any Company Continuing Employee or any other Person to any continued employment or service with the Rooster Surviving Corporation, Parent Parent, or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever, or otherwise alter any existing at-will employment relationship.
(de) With respect to the matters described in this Section 5.075.09, neither the Company will not nor any of its Subsidiaries shall send any written notices or other written make any communication materials to any Company Employees Employee without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (NRC Group Holdings Corp.), Merger Agreement (Us Ecology, Inc.)
Employees; Benefit Plans. (a) During The effectiveness of the period commencing Merger alone will not affect the employment status of any employee of FCB or First Capital Bank; provided, that this Agreement shall not be construed as conferring any rights to continued employment on any employee of FCB or First Capital Bank. At the Effective Time of the Merger (i) at will employees of FCB will continue to be at will employees of EVBS, and (ii) at will employees of First Capital Bank, will continue to be at will employees of First Capital Bank. Persons who are at will employees of First Capital Bank at the time it merges with EVB will be at will employees of EVB at the effective time of the merger between First Capital Bank and EVB. Subject to the limitations under EESA and other applicable law, EVBS acknowledges that (i) at the Effective Time it will become obligated under the executive employment and ending on the date which is FIVE change of control agreements between FCB and its employees listed in Schedule 3.16(a)(i), (“5”ii) months from between the Effective Time (or if earlier, and the date effective time of the employee's termination merger between EVB and First Capital Bank, First Capital Bank will continue to be obligated under the executive employment and change of employment with Parent control agreements between First Capital Bank and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensationlisted in Schedule 3.16(a)(i), and employee benefits that are(iii) at the effective time of the merger between EVB and First Capital Bank, in EVB will become obligated under the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), executive employment and employee benefits provided by the Company change of control agreements between First Capital Bank and its Subsidiaries on the date of this Agreementemployees listed in Schedule 3.16(a)(i).
(b) With respect to any "employee benefit plan" As soon as defined in Section 3(3) practical after the Effective Time of ERISA maintained by Parent or any the Merger, employees of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of FCB and its Subsidiaries shall be entitled to participate in EVBS retirement, welfare benefit and similar plans (but not any equity compensation arrangements maintained by Parent defined benefit plans) on the same terms and conditions as employees of EVBS, without waiting periods, exceptions for pre-existing conditions, requirement of insurability or any actively at work requirement or exclusion and giving effect to years of its Subsidiaries (collectively, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be FCB as if such service were with Parent, EVBS. Employees of FCB shall receive credit under EVBS’s group health plans for vesting all deductibles and eligibility purposes (but not for (i) purposes co-payments and amounts paid toward out of early retirement subsidies pocket limits made by such employees under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible the group health plans maintained by FCB prior to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 EVBS also shall be binding upon honor in accordance with their terms as in effect on the date of this Agreement all of FCB’s and inure solely to its Subsidiaries’ obligations for vacation, sick leave, personal leave and the benefit of each like accrued and unused through the date of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability consummation of the Surviving CorporationMerger. For all purposes in connection with vacation, Parent or any sick leave, personal leave and the like, EVBS shall give effect to years of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment service with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverFCB as if such service were with EVBS.
(d) With respect Between the date of this Agreement and the Effective Time of the Merger, FCB shall make any amendments to matters described in this Section 5.07its Benefits Plans that may be required by applicable law, the Company will including, but not send any written notices or other written communication materials to Company Employees without the prior written consent of Parentlimited to, EESA.
Appears in 2 contracts
Samples: Merger Agreement (First Capital Bancorp, Inc.), Merger Agreement (Eastern Virginia Bankshares Inc)
Employees; Benefit Plans. (a) During For a period of 18 months following the period commencing at Closing Date (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation or any of their respective Subsidiaries or Affiliates to, recognize all service provide to each individual who, immediately before the Effective Time is an employee (including individuals who are on a leave of the Company Continuing Employees with absence but whose employment has not terminated) of the Company or any of its Subsidiaries (each, a “Covered Employee”), while employed by Parent, the Surviving Corporation or any of their respective Subsidiaries or Affiliates after the Closing Date, (i) no less than the same base salary or hourly wage rate provided to such Covered Employee immediately before the Effective Time, (ii) no less than the same short-term (annual or more frequent) bonus or commission opportunity provided to such Covered Employee immediately before the Effective Time and (iii) other compensation and benefits (excluding equity and equity-based awards) that are no less favorable for all Covered Employees in the aggregate as those provided to such Covered Employees in the aggregate under the Company’s and its Subsidiaries’ compensation and benefit plans, programs, policies, agreements and arrangements in effect immediately before the Effective Time. Notwithstanding anything to the contrary set forth herein, after the Effective Time, nothing herein shall preclude the Surviving Corporation or any of its Subsidiaries from terminating the employment of any Covered Employee.
(b) Parent shall, or shall cause the Surviving Corporation and each of their respective Subsidiaries and Affiliates to, honor all Company Benefit Plans (including for the avoidance of doubt all severance, change-in-control and similar plans and agreements) in accordance with their terms as in effect immediately before the case Effective Time, subject to any amendment or termination thereof that may be as if permitted by such service were Company Benefit Plans to the extent not in violation of any requirements hereunder; provided, however, that nothing herein shall prevent the amendment or termination of any specific plan, program, policy, agreement or arrangement, or interfere with Parent’s, the Surviving Corporation’s or any of their respective Subsidiaries’ or Affiliates’ rights or obligations to make such changes as are necessary to comply with applicable Law. Parent acknowledges and agrees that the consummation of the Merger will constitute a “Change in Control” under the Company Benefit Plans and agreements listed in Section 5.9(b) (Change-in-Control and Severance Agreements) of the Company Disclosure Schedule. During the Continuation Period, Parent shall provide each Covered Employee who suffers a termination of employment under circumstances that would have given the Covered Employee a right to severance payments and benefits under the Company’s severance policy in effect immediately before the Effective Time or, if applicable, under the other severance arrangements under which the Covered Employee would have received severance payments and benefits before the Effective Time and identified on Section 5.9(c) of the Company Disclosure Schedule (the “Company Severance Plan”) with severance payments and benefits no less favorable than those that would have been provided to such Covered Employee under the Company Severance Plan (subject to applicable eligibility conditions).
(c) For all purposes under (i) all employee benefit plans of Parent, the Surviving Corporation and their respective Subsidiaries and Affiliates providing benefits to any Covered Employee after the Effective Time, other than the Company Benefit Plans (the “New Plans”), each Covered Employee shall receive full credit for all purposes (including eligibility, vesting and eligibility purposes (benefit accrual but not for (i) benefit accrual purposes of early retirement subsidies under any Parent Benefit New Plan that is a defined benefit pension plan plan) for such Covered Employee’s years of service with the Company and its Subsidiaries before the Effective Time (including predecessor or acquired entities or any other entities for which the Company and its Subsidiaries have given credit for prior service) to the same extent as such Covered Employee was entitled, before the Effective Time, to credit for such service under any similar or comparable Company Benefit Plan, or with respect to any New Plan for which there is no similar or comparable Company Benefit Plan, to the same extent as such service would be recognized if it had been performed as an employee of Parent, the Surviving Corporation or their respective Subsidiaries and Affiliates (in each case except to the extent such credit would result in a duplication of benefits) and (ii) the Company Benefit Plans, each Covered Employee shall receive full credit for all purposes (including eligibility, vesting and benefit accrual purposesaccrual) for such Covered Employee’s years of service with the Company and its Subsidiaries before the Effective Time (including predecessor or acquired entities or any other entities for which the Company and its Subsidiaries have given credit for prior service), to the same extent as such Covered Employee was entitled, before the Effective Time, to credit for such service under such Company Benefit Plan (in each case except for vacationto the extent such credit would result in a duplication of benefits). In addition, if where applicable, and without limiting the generality of the foregoing: (i) at the Effective Time, each Covered Employee immediately shall be eligible to participate, without any waiting time, in any Parent each New Plan applicable to the Covered Employees as of the Effective Time to the extent such waiting time was satisfied under a similar or comparable Company Benefit Plan in which such Company Continuing Covered Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”); (ii) Parent shall cause all pre-existing condition exclusions or limitations and actively-at-work requirements of each New Plan applicable to the Covered Employees may at the Effective Time to be eligible waived or satisfied for such Covered Employee and his or her covered dependents to participate after the extent waived or satisfied under a similar or comparable Old Plan as of the Effective Time; (iii) Continuing Company Parent shall honor cause all consulting eligible expenses incurred by each Covered Employee and his or advisory agreement previously entered intoher covered dependents during the portion of the plan year of the Old Plan ending on the date such Covered Employee’s participation in the New Plan begins (if such date is within 18 months after the Closing Date) to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Covered Employees and his or employment pending equity awards stock options her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan; and (iv) in all cases, all amounts contributed as of the Closing Date by any Covered Employee to any Old Plan that is a Code Section 125 cafeteria plan or warrants health savings account arrangement shall remain credited to purchase equity based upon performance. providedsuch Covered Employee’s account under the applicable plan or arrangement following the Closing Date, that such service shall not be recognized subject to the extent that (A) such recognition would result in a duplication terms and conditions of benefits the applicable plan or (B) such service was not recognized under the corresponding Company Employee Planarrangement.
(cd) This Section 5.07 shall be binding upon and inure solely With respect to any accrued but unused vacation or paid time off to which any Covered Employee is entitled pursuant to the benefit vacation or paid time off policy applicable to such Covered Employee immediately before the Effective Time (the “Vacation Policy”), Parent shall, or shall cause the Surviving Corporation or any of each their respective Subsidiaries or Affiliates to, (i) allow such Covered Employee to use such accrued vacation or paid time off (subject to the terms of the parties applicable vacation plan or policy, including any maximums that may prohibit the Covered Employee from accruing any new vacation or paid time off until such prior time is used) and (ii) if any Covered Employee’s employment terminates during the Continuation Period under circumstances entitling the Covered Employee to this Agreementseverance pay under the Company Severance Plan, pay the Covered Employee, in cash, an amount equal to the value of the accrued vacation or paid time off.
(e) Prior to the Closing but only after receipt of the Requisite Shareholder Approval and the satisfaction of the condition to closing set forth in Section 6.1(c) (but earlier upon mutual agreement of the Parties), the Company shall cooperate with Parent’s reasonable requests to (i) arrange and conduct for employees of the Company, an open enrollment period for any New Plans and employee orientation sessions (with such sessions to be held at times reasonably agreed to by Parent and the Company), and nothing (ii) meet with employees of the Company (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by Parent and the Company.
(f) Nothing in this Section 5.075.9, whether express or implied, shall confer upon any other Person current or former employee of the Company, Parent, the Surviving Corporation or any of their respective Subsidiaries or Affiliates, any rights (including for sake of clarity, any third party beneficiary rights) or remedies including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Section 5.075.9. Nothing contained herein, express or implied (i) shall be construed No provision of this Section 5.9 is intended to establishmodify, amend or modify create any employee benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability plan of the Company, Parent, Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent Corporation or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverAffiliates.
(dg) With respect to matters described in this Section 5.07, awards of Restricted Shares that the Company will would have granted on or after October 1, 2013, in the ordinary course of business in the absence of the restrictions contained in Section 5.1(b) of this Agreement:
(i) The Compensation Committee of the Company Board shall make in the ordinary course the determinations of time-vesting awards and the performance-vesting awards it would grant to employees of the Company for fiscal year 2014 (each such award, a “Company Contingent Award”); provided, that such Company Contingent Awards (A) may not send exceed 245,000 shares of Company Common Stock in the aggregate and (B) must be distributed among the different levels of employees of the Company and its Subsidiaries approximately in the same proportions as awards of Restricted Shares have been distributed among the different levels of employees of the Company in the last three fiscal years; and
(ii) Within five (5) Business Days after the Closing Date, Parent shall cause to be granted to any written notices Covered Employee that continues to be employed by Parent or other written communication materials any of its Subsidiaries on the date of grant an award of restricted shares of Parent common stock (each, a “Parent Award”) equal to the product of (A) the number of shares of Company Employees without Common Stock subject to the Company Contingent Award for such Covered Employee, multiplied by the quotient of (I) the closing price of a share of Company Common Stock on the New York Stock Exchange on the last trading day prior written consent to the Closing Date, divided by (II) the average of Parentthe closing prices of a share of Parent common stock on the New York Stock Exchange for the ten trading days prior to the Closing Date, rounded up to the nearest whole share of Parent common stock; provided, that (aa) the vesting period for such Parent Awards shall, for each Covered Employee, be the same as the vesting period applicable to restricted stock awards made to similarly situated employees of the Parent or its Subsidiaries and in any event shall not provide for less favorable vesting provisions than equal annual installment vesting beginning on the first anniversary of the grant date over a period not longer than five years and (bb) such Parent Awards shall be subject to the standard terms and conditions and documentation applicable to restricted stock awards granted by Parent to employees of Parent or its Subsidiaries.
Appears in 2 contracts
Samples: Merger Agreement (Kroger Co), Merger Agreement (Harris Teeter Supermarkets, Inc.)
Employees; Benefit Plans. (a) During Following the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (Closing Date, BWFG may choose not to maintain any or if earlier, the date all of the employee's termination of employment QBT Benefit Plans in its sole discretion and QBT shall cooperate with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, BWFG in order to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect effect any plan terminations to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective be made as of the Effective Time. However, Parent shallfor any QBT Benefit Plan terminated for which there is a comparable BWFG Benefit Plan of general applicability, or BWFG shall take all reasonable action so that employees of QBT shall be entitled to participate in such BWFG Benefit Plan to the same extent as similarly-situated employees of BWFG (it being understood that inclusion of the employees of QBT in the BWFG Benefit Plans may occur at different times with respect to different plans, including after the Effective Time). BWFG shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent each BWFG Benefit Plan in which such Company Continuing Employees may be employees of QBT are eligible to participate after to take into account for purposes of eligibility and vesting under the Effective TimeBWFG Benefit Plans but not for purposes of benefit accrual the service of such employees with QBT to the same extent as such service was credited for such purpose by QBT; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intoprovided, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits. Nothing herein shall limit the ability of BWFG to amend or terminate any of the QBT Benefit Plans or BWFG Benefit Plans in accordance with their terms at any time; provided, however, that BWFG shall continue to maintain the QBT Benefit Plans (Bother than stock-based or incentive plans) for which there is a comparable BWFG Benefit Plan until the QBT Employees are permitted to participate in the BWFG Benefit Plans, unless such service was not recognized under BWFG Benefit Plan has been frozen or terminated with respect to similarly situated employees of BWFG or any Subsidiary of BWFG.
(b) BWFG shall assume and honor, for 2014, the corresponding Company Employee Plan.vacation policies of QBT, as disclosed on QBT Disclosure Schedule 3.16,
(c) This Section 5.07 If employees of QBT become eligible to participate in a medical, dental or health plan of BWFG in accordance with BWFG plan documents, upon termination of such plan of QBT, BWFG shall be binding upon and inure solely make all commercially reasonable efforts to the benefit of cause each of the parties such plan to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed waive any preexisting condition limitations to establishthe extent such conditions are covered under the applicable medical, amend health or modify any benefit plandental plans of BWFG, program, agreement or arrangement or and (ii) shall alter waive any waiting period limitation or limit evidence of insurability requirement which would otherwise be applicable to such employee on or after the ability of Effective Time, in each case to the Surviving Corporation, Parent extent such employee had satisfied any similar limitation or any of their respective Affiliates requirement under an analogous QBT Benefit Plan prior 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverEffective Time.
(d) With BWFG agrees to cause BWFG or QBT to provide severance pay, as set forth below, to any full-time, current employee of QBT (excluding any employee of QBT who is a party to an employment agreement, change-in-control agreement or any other agreement that provides for severance payments) whose employment is terminated by QBT prior to the Effective Time at the request of BWFG or by BWFG or a subsidiary of BWFG within six (6) months beyond the Effective Time because such employee's position is eliminated or such employee is not offered or retained in comparable employment (i.e., a position with no reduction in base pay, or scheduled hours, and where the employee is not required to commute more than 35 miles farther than the employee's present commute), excluding any employee who has accepted an offer from BWFG of noncomparable employment and also excluding any employee whose employment is terminated for “cause” (as defined below). The severance pay to be provided by QBT or BWFG under this provision shall equal two weeks “base pay” (as defined below) for each full year of service (including service with QBT and BWFG and any subsidiary of each), with a minimum of four (4) weeks and a maximum of fourteen (14) weeks of base pay. For purposes of this provision, the term “base pay” means (A) with respect to matters described in this Section 5.07a salaried employee, the Company employee's annual base salary prior to any pre-tax deductions, but shall not include bonus payments, and (B) with respect to an hourly employee, the employee's total scheduled hours (prorated, as appropriate) prior to any pre-tax deductions for the twelve (12) full calendar months preceding the month in which the Effective Time occurs, including base salary and overtime pay, but excluding bonus payments. Also, for purposes of this provision, the term “cause” means termination because of neglect of or refusal to perform, other than as a result of sickness, accident or similar cause beyond an employee's reasonable control, any duty or responsibility as an employee of QBT or BWFG or any subsidiary; dishonesty with respect to QBT or BWFG or the commission of any crime (other than minor traffic violations); or any material misconduct or material neglect of duties by the employee in connection with the business or affairs of QBT or BWFG. The foregoing definition of “cause” is in no way intended to limit or qualify the right of QBT or BWFG to terminate any person's employment for any reason. Employees receiving severance payments will not send be required to execute appropriate release documents.
(e) Concurrently with the execution of this Agreement, QBT shall obtain from each of the individuals named in QBT Disclosure Schedule 5.14(e) an agreement (a “Settlement Agreement”) to accept in full settlement of his or her rights under the specified programs the amounts and benefits determined under his or her Settlement Agreement (the aggregate amount of such payment to be specified in QBT Disclosure Schedule 5.14(e)) and pay such amounts to such individuals who are employed at the Effective Time pursuant to the terms of the Settlement Agreement. As to, and only as to, each individual who enters into a Settlement Agreement, BWFG acknowledges and agrees that (i) the Merger constitutes a “change of control” or “change in control” for all purposes pursuant to such employment agreements. Any officer or employee of QBT who is a party to a Settlement Agreement shall be entitled to receive the benefits payable or to be otherwise provided pursuant to the terms of such Settlement Agreement, and BWFG agrees to provide the non-cash benefits, if any, pursuant to the terms of the Settlement Agreement.
(f) BWFG and QBT shall discuss the advisability of a retention pool in an amount to be determined for certain employees of QBT to be designated by BWFG in consultation with QBT. Such designated employees, if any written notices or other written communication materials will enter into retention agreement to Company Employees without the prior written consent of Parentbe agreed upon by BWFG and QBT.
Appears in 2 contracts
Samples: Merger Agreement (Bankwell Financial Group, Inc.), Merger Agreement (Bankwell Financial Group, Inc.)
Employees; Benefit Plans. (a) During For a period of at least one (1) year following the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective TimeClosing Date, Parent shall, or shall cause the Surviving Corporation or any of their respective Affiliates to, recognize all service provide to each individual who, immediately before the Effective Time is an employee of the Company Continuing Employees with the Company or any of its Subsidiaries, including any individual on short-term disability leave immediately before the Effective Time (each, an “Employee”) and who is not covered by the terms of a collective bargaining agreement, with (i) at least the same salary or hourly wage rate provided to such Employee immediately before the Effective Time, (ii) at least the same short-term (annual or more frequent) cash bonus or commission opportunity provided to such Employee immediately before the Effective Time, (iii) at least the same benefits under the Company 401(k) Plan provided to such Employee immediately before the Effective Time; provided, however, the benefits provided under this subclause (iii) shall be provided until December 31, 2016 and (iv) other compensation and benefits that are substantially comparable in the aggregate to those provided (x) to such Employee as of the case may date of this Agreement or (y) to similarly situated employees of Parent. Notwithstanding anything to the contrary set forth herein, after the Effective Time, nothing herein shall preclude the Surviving Corporation from terminating the employment of any Employee for any lawful reason and neither Parent nor the Surviving Corporation shall have any obligation to retain any employee or group of employees of the Company or any of its Subsidiaries.
(b) Parent shall, or shall cause the Surviving Corporation and each of their respective Affiliates to, honor all Company Benefit Plans (including all severance, change of control and similar plans, policies, practices and agreements disclosed to Parent) in accordance with their terms as in effect as of the date of this Agreement; provided, that nothing herein shall be as if such service were construed to prevent the amendment or termination of any specific plan, program, policy, practice or agreement, or interfere with Parent’s, for vesting the Surviving Corporation’s or any of their respective Affiliates’ rights or obligations to make changes as are necessary to comply with applicable Law, this Agreement or any Company Benefit Plan.
(c) For all purposes under any employee benefit plan or arrangement of Parent, the Surviving Corporation and eligibility purposes their respective Affiliates, including severance, benefit and vacation or other paid-time off benefits (but not for accrual of pension benefits), made available to any Employee after the Effective Time (other than any defined benefit pension plan) (the “New Plans”), Parent shall provide that (i) each Employee shall receive credit for such Employee’s years of service with the Company and its Subsidiaries before the Effective Time (including predecessor or acquired entities or any other entities) for purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible eligibility to participate after the Effective Time; in and vesting thereunder (iiibut not benefit accrual) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized (except to the extent that (A) such recognition credit would result in a duplication of accrual of benefits or with respect to New Plans created after the Effective Time for which similarly situated employees of Parent or the applicable Affiliate do not receive past service credit), (Bii) at the Effective Time, any waiting time limitation in any New Plan is waived to the extent such service waiting time was not recognized satisfied under the corresponding similar or comparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”), (iii) all pre-existing condition exclusions or limitations and actively-at-work requirements of each New Plan be waived or satisfied for such Employee and his or her covered dependents to the extent waived or satisfied under the analogous Old Plan as of the Effective Time, and (iv) eligible expenses incurred by each Employee and his or her covered dependents in respect of the plan year in which the Closing shall have occurred be taken into account for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or her covered dependents for such applicable plan year as if such amounts had been paid in accordance with such New Plan.
(cd) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing Nothing in this Section 5.075.5, whether express or implied, shall confer upon any other Person any rights current or remedies of any nature whatsoever under former director, officer, employee, independent contractor or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability consultant of the Company, Parent, the Surviving Corporation, Parent Corporation or any of their respective Affiliates to amendAffiliates, modify any rights or terminate any benefit planremedies, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create including any right in any Company Employee to employment or any other Person to any continued employment with the Surviving Corporationfor any specified period, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in . No provision of this Section 5.075.5 is intended to modify, amend or create any employee benefit plan of the Company, Parent, the Company will not send Surviving Corporation or any written notices or other written communication materials to Company Employees without the prior written consent of Parenttheir respective Affiliates.
Appears in 2 contracts
Samples: Merger Agreement (Boulder Brands, Inc.), Merger Agreement (Pinnacle Foods Inc.)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (In no event will Parent or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation take any action that would have the effect of requiring any notice or consent to be given or sought prior to the Closing pursuant to the federal Worker Adjustment and each Retraining Notification Act of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation)1988, and employee benefits that aresimilar state, local and foreign laws related to the plant closing, relocations, mass layoffs and employment losses in connection with the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided transactions contemplated by the Company and its Subsidiaries on the date of this Agreement.
(b) . With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 employees of the Company who remain employed immediately after the Effective Time (collectively, the “Company Continuing Employees Employees”) will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Nanosphere Inc), Merger Agreement (Nanosphere Inc)
Employees; Benefit Plans. (a) During Following the Closing Date and except to the extent an alternative treatment is set forth in this Section 5.14, NBT may choose to maintain any or all of the Salisbury Benefit Plans in its sole discretion, and Salisbury and Salisbury Bank shall cooperate with NBT in order to effect any plan terminations to be made as of the Effective Time. For the period commencing at the Effective Time and ending on the date which is FIVE (“5”) 12 months from after the Effective Time (or if earlieruntil the applicable Continuing Employee’s earlier termination of employment), NBT shall provide, or cause to be provided, to each employee of Salisbury Bank who continues with the date Surviving Bank as of the employee's Closing Date (a “Continuing Employee”) (i) a base salary or a base rate of pay at least equal to the base salary or base rate of pay provided to similarly situated employees of NBT or any Subsidiary of NBT and (ii) other benefits (other than severance, termination pay or equity compensation) at least substantially comparable in the aggregate to the benefits provided to similarly situated employees of employment with Parent and its Subsidiaries)NBT or any Subsidiary of NBT. For any Salisbury Benefit Plan terminated for which there is a comparable NBT Benefit Plan of general applicability, Parent NBT shall cause take all commercially reasonable action so that Continuing Employees shall be entitled to participate in such NBT Benefit Plan to the Surviving Corporation and each same extent as similarly-situated employees NBT (it being understood that inclusion of its Subsidiaries, as applicable, to provide the employees of the Company Salisbury and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, Salisbury Bank in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With NBT Benefit Plans may occur at different times with respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent different plans). NBT shall cause each NBT Benefit Plans") Plan in which any Company Continuing Employees will are eligible to participate effective as to take into account for purposes of eligibility and vesting under the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes NBT Benefit Plans (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan accrual) the service of such employees with Salisbury or (ii) benefit accrual purposesSalisbury Bank to the same extent as such service was credited for such purpose by Salisbury or Salisbury Bank; provided, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or retroactive application. Nothing herein shall limit the ability of NBT to amend or terminate any of the Salisbury Benefit Plans or NBT Benefit Plans in accordance with their terms at any time. Following the Closing Date, NBT shall honor, in accordance with Xxxxxxxxx’x policies and procedures in effect as of the date hereof, any employee expense reimbursement obligations of Xxxxxxxxx for out-of-pocket expenses incurred during the calendar year in which the Closing occurs by any Continuing Employee.
(Bb) Without limiting the generality of Section 5.14(a), prior to the Closing Date, (i) Salisbury or Salisbury Bank, as applicable, shall take all actions necessary to terminate the Salisbury Bank and Trust Company Employee Severance Compensation Plan, dated July 31, 2020 (the “Salisbury Bank Severance Plan”), and to adopt written resolutions, the form and substance of which shall be reasonably satisfactory to NBT, to terminate such service was Salisbury Bank Severance Plan, and (ii) if requested by NBT in writing not recognized less than ten (10) days prior to the Closing, Salisbury or Salisbury Bank, as applicable, shall take all actions necessary to cease contributions to and terminate each Salisbury Benefit Plan that is intended to qualify under Code Section 401(k) (each, a “Salisbury 401(k) Plan”) and/or is intended to be a non-qualified deferred compensation plan (each, a “Salisbury NQDC Plan”), and to adopt written resolutions, the form and substance of which shall be reasonably satisfactory to NBT, to terminate each such Salisbury 401(k) Plan and/or Salisbury NQDC Plan; provided, however, that each such termination may be made contingent upon the consummation of the transactions contemplated by this Agreement. In the event NBT elects to terminate the Salisbury 401(k) Plan prior to the Closing Date, NBT shall take any and all actions as may be required to permit Continuing Employees to participate in a NBT Benefit Plan that is intended to qualify under Code Section 401(k) (an “NBT 401(k) Plan”) immediately following the Closing Date and to permit Continuing Employees to roll over their account balances in the Salisbury 401(k) Plan, including any participant loans under the corresponding Company Employee Salisbury 401(k) Plan, into the NBT 401(k) Plan.
(c) This Section 5.07 If employees of Salisbury or Salisbury Bank become eligible to participate in a medical, dental, vision, prescription drug, disability plan or life insurance plan of NBT upon termination of such plan of Salisbury or Salisbury Bank in the calendar year that includes the Closing Date, NBT shall use all commercially reasonable efforts to cause each such plan to (i) waive any preexisting condition limitations to the extent such conditions are covered under the applicable NBT Benefit Plan, (ii) provide credit under such plans for any deductible, co-payment and out-of-pocket expenses incurred by the employees and their beneficiaries during the portion of the calendar year prior to such participation and (iii) waive any waiting period limitation, actively-at-work requirement or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous Salisbury Benefit Plan prior to the Effective Time.
(d) NBT agrees to pay to each employee of Salisbury or Salisbury Bank that is not covered by a written employment or severance agreement and is terminated by NBT or any of its Subsidiaries, without cause, within six (6) months following the Effective Time, a severance payment equal to two (2) weeks of his or her then current base salary multiplied by the number of total completed years of service with Xxxxxxxxx or Salisbury Bank; provided, however, that for vice presidents and above, severance payment shall equal twenty-six (26) weeks of his or her base salary and for all other employees, the minimum severance payment shall equal not less than twelve (12) weeks of his or her base salary and the maximum severance payment shall not exceed twenty-six (26) weeks of his or her base salary; and provided further, that such employee enters into a release of claims in a form reasonably satisfactory to NBT and that such employee does not voluntarily leave employment with Xxxxxxxxx or Salisbury Bank prior to the Effective Time.
(e) To the extent necessary, NBT and Salisbury may provide a retention pool as mutually agreed by NBT and Salisbury to enable NBT and Salisbury to provide retention incentives to certain employees of Salisbury or Salisbury Bank who are not covered by a written employment agreement, the recipients and amounts to be mutually determined by NBT and Xxxxxxxxx. Such designated employees will enter into retention agreements to be agreed upon by NBT and Salisbury.
(f) Subject to the occurrence of the Closing, the Salisbury Bank ESOP shall be binding upon and inure solely terminated by Salisbury Bank prior to the benefit of each Closing Date. In connection with the termination of the parties Salisbury Bank ESOP, all plan accounts shall be fully vested, all outstanding indebtedness of the Salisbury Bank ESOP shall be repaid by delivering a sufficient number of unallocated shares of Salisbury Stock to Salisbury, at least five (5) Business Days prior to the Effective Time, all remaining shares of Salisbury Stock held by the Salisbury Bank ESOP shall be converted into the right to receive the Merger Consideration, and the balance of the unallocated shares and any other unallocated assets remaining in the Salisbury Bank ESOP after repayment of the Salisbury Bank ESOP loan shall be allocated as earnings to the accounts of the Salisbury Bank ESOP participants who are employed as of the date of termination of the Salisbury Bank ESOP based on their account balances under the Salisbury Bank ESOP as of the date of termination of the Salisbury Bank ESOP and distributed to Salisbury Bank ESOP participants after the receipt of a favorable determination letter from the IRS. Prior to the Effective Time, Salisbury Bank shall take all such actions as are necessary (determined in consultation with NBT) to submit the application for favorable determination letter in advance of the Effective Time. Salisbury Bank will adopt such amendments to the Salisbury Bank ESOP to effect the provisions of this Section 5.14(f). Promptly following the receipt of a favorable determination letter from the IRS regarding the qualified status of the Salisbury Bank ESOP upon its termination, the account balances in the Salisbury Bank ESOP shall either be distributed to participants and beneficiaries or transferred to an eligible tax-qualified retirement plan or individual retirement account as a participant or beneficiary may direct; provided however, that nothing contained herein shall delay the distribution or transfer of account balances in the Salisbury Bank ESOP in the ordinary course for reasons other than the termination of such plan. Prior to the Closing Date, Salisbury Bank shall provide NBT with the final documentation evidencing that the actions contemplated herein have been effectuated. Notwithstanding anything herein to the contrary, Salisbury Bank shall continue to accrue and make contributions to the Salisbury Bank ESOP trust from the date of this Agreement through the termination date of the Salisbury Bank ESOP in an amount sufficient (but not to exceed) the loan payments which become due in the ordinary course on the outstanding loans to the Salisbury Bank ESOP prior to the termination of the Salisbury Bank ESOP and shall make a pro-rated payment on the Salisbury Bank ESOP loan for the 2023 plan year through and including the end of the calendar month immediately preceding the Closing, prior to the termination of the Salisbury Bank ESOP.
(g) Nothing contained in this Agreement, and nothing in this Section 5.07, express expressed or implied, shall confer upon (i) give any person, other Person than the parties hereto, any rights or remedies of any nature whatsoever whatsoever, including any right to continued employment or service, under or by reason of this Section 5.07. Nothing contained herein5.14, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter cause any third party beneficiary rights in any current or limit former employee, director, other individual service provider of Salisbury or any of its Subsidiaries to enforce the ability provisions of the Surviving Corporationthis Section 5.14 or any other matter related thereto, Parent or (iii) be construed as an amendment to any Salisbury Benefit Plan, NBT Benefit Plan, or other employee benefit plan of NBT, NBT Bank, Salisbury or any of their respective Affiliates Affiliates, or be construed to amend, modify prohibit the amendment or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits termination of any nature or kind whatsoeversuch plan.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (NBT Bancorp Inc), Merger Agreement (Salisbury Bancorp, Inc.)
Employees; Benefit Plans. (a) During From and after the period commencing at Closing Date and until December 31, 2007 (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall will, or will cause the Surviving Corporation and each of its Subsidiariesto, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after (other than those employees covered by a collective bargaining agreement) as of the Effective Time who continue employment with the Surviving Corporation (collectively, the "Company Continuing “Employees"”) with base salary, target bonus opportunities (excluding equity-based compensation), compensation and employee benefits that are, in the aggregate, are no less favorable than in the base salaryaggregate to those currently provided to such Employees; provided, target bonus opportunities (excluding equity-based compensation)however, and employee benefits provided by that nothing herein will prevent the amendment or termination of any specific plan, program or arrangement, require that Parent or the Surviving Corporation provide or permit investment in the securities of Parent or the Surviving Corporation or interfere with Parent’s or the Surviving Corporation’s right or obligation to make such changes as are necessary to comply with applicable Law. Notwithstanding anything to the contrary set forth herein, nothing herein shall preclude Parent or the Surviving Corporation from terminating the employment of any Employee for any reason for which the Company and its Subsidiaries on could have terminated such Employee prior to the date of this AgreementEffective Time.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shallwill, or shall will cause the Surviving Corporation to, recognize honor all Company Benefit Plans (including any severance, retention, change of control and similar plans, agreements and written arrangements) in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such plans, agreements or written arrangements. During the Continuation Period, Parent will, or will cause the Surviving Corporation to, provide all Employees (other than those covered by an individual agreement providing severance benefits outside the Company’s severance policies) who suffer a termination of employment with severance benefits that are no less favorable in the aggregate than those that would have been provided to such Employees under the Company’s severance policies as in effect immediately prior to the Effective Time.
(c) For all purposes under the employee benefit plans of Parent and the Surviving Corporation providing benefits to any Employees after the Effective Time (the “Post-Closing Plans”), each Employee will be credited with his or her years of service of the Company Continuing Employees with the Company and its Affiliates before the Effective Time (including predecessor or acquired entities or any of other entities for which the Company and its SubsidiariesAffiliates have given credit for prior service), to the same extent as such Employee was entitled, before the case may be as if Effective Time, to credit for such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent the corresponding Company Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposesPlan, except for vacationpurposes of benefit accrual under defined benefit plans, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized and except to the extent that (A) such recognition credit would result in a duplication of accrual of benefits. In addition, and without limiting the generality of the foregoing (i) each Employee immediately will be eligible to participate, without any waiting time, in any and all Post-Closing Plans to the extent coverage under such Post-Closing Plan replaces coverage under a similar or comparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (such plans, collectively, the “Pre-Closing Plans”) and (ii) for purposes of each Post-Closing Plan providing medical, dental, pharmaceutical and/or vision benefits to any Employee, the Surviving Corporation will cause all pre-existing condition exclusions and actively-at-work requirements of such Post-Closing Plan to be waived for such Employee and his or (B) her covered dependents, to the extent any such service was not recognized exclusions or requirements were waived or were inapplicable under any similar or comparable Company Benefit Plan, and the Surviving Corporation will cause any eligible expenses incurred by such Employee and his or her covered dependents during the portion of the plan year of the Pre-Closing Plan ending on the date such Employee’s participation in the corresponding Company Post-Closing Plan begins to be taken into account under such Post-Closing Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such Post-Closing Plan.
(cd) This Section 5.07 5.8 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.075.8, express expressed or implied, shall is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.8. Without limiting the foregoing, no provision of this Section 5.8 will create any third party beneficiary rights in any current or former employee, director or consultant of the Company or its Subsidiaries in respect of continued employment (or resumed employment) or any other matter. Nothing contained hereinin this Section 5.8 is intended to amend any Company Benefit Plan, express or implied (i) shall be construed to establish, amend interfere with Parent’s or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of their respective Affiliates ’s right from and after the Effective Time to amend, modify amend or terminate any benefit planCompany Benefit Plan or the employment or provision of services by any director, programemployee, agreement independent contractor or arrangement consultant.
(e) Parent shall not take any actions that would have the effect of impairing or would be reasonably likely to impair the payment of any obligations under the Brass Eagle, Inc. Deferred Compensation Plan or the Rawlings Sporting Goods Company, Inc. Deferred Compensation Plan, provided that Parent shall retain the right to terminate each such plan in accordance with its terms at any time assumedfrom and after December 30, established, sponsored or maintained by any of them2007. The parties hereto acknowledge and agree that the terms set forth in provisions of this Section 5.07 shall not create any right in any Company Employee or any other 5.8(e) will survive the Closing and are intended to be for the benefit of, and will be enforceable by, each Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.075.8(e) and its successors and representatives after the Effective Time and their rights under this Section 5.8(e) are in addition to, the Company and will not send be deemed to be exclusive of, any written notices other rights to which such Person is entitled, whether pursuant to Law, Contract or other written communication materials to Company Employees without otherwise.
(f) The obligations of Parent and the prior written consent of ParentSurviving Corporation under this Section 5.8 shall be joint and several.
Appears in 2 contracts
Samples: Merger Agreement (K2 Inc), Merger Agreement (Jarden Corp)
Employees; Benefit Plans. (a) During Company and Company Bank agree, upon Buyer’s reasonable request, to facilitate discussions between Buyer and Company Employees a reasonable time in advance of the period commencing at Closing Date regarding employment, consulting or other arrangements to be effective prior to or following the Effective Time and ending on the date which is FIVE (“5”) months from Time. Prior to the Effective Time (Time, any interaction between Buyer and Company Employees shall be coordinated with Company or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this AgreementBank.
(b) With respect to any "employee benefit plan" Except as defined provided in Section 3(3) of ERISA maintained 5.11(g), prior to the Closing Date, if directed by Parent or any of its SubsidiariesBuyer, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize take all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for action required to (i) purposes of early retirement subsidies under cause any Parent Company Benefit Plan that is a defined benefit pension plan or has liabilities in respect of its participants to be fully funded to the extent required under applicable Law and (ii) benefit accrual purposesterminate or merge any Company Benefit Plan. All resolutions, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intonotices, or employment pending equity awards stock options other documents issued, adopted or warrants executed in connection with the implementation of the first sentence of this Section 5.11(b) shall be subject to purchase equity based upon performance. providedBuyer’s reasonable prior review and approval, that such service which shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits unreasonably withheld, conditioned or (B) such service was not recognized under the corresponding Company Employee Plandelayed.
(c) This Section 5.07 For any Company Benefit Plan terminated by Buyer for which there is a comparable Buyer Benefit Plan of general applicability, Company Employees who are retained by Buyer or Buyer Bank shall be binding upon entitled to immediately participate in such Buyer Benefit Plans to the same extent as similarly-situated employees of Buyer or Buyer Bank (it being understood that inclusion of Company Employees in the Buyer Benefit Plans may occur at different times with respect to different plans). To the extent allowable under any Buyer Benefit Plans in which Company Employees participate, Company Employees shall be given credit for prior service or employment with Company or Company Bank (as well as service with any predecessor employer) for purposes of eligibility for and inure solely vesting of all benefits under such plans and for purposes of accruals or levels of severance, vacation pay, paid time off or similar benefits; provided that the foregoing shall not apply to the extent that it would result in any duplication of benefits. Notwithstanding the foregoing, Buyer may amend or terminate any Buyer Benefit Plan at any time in its sole discretion.
(d) Buyer shall cause Buyer Benefit Plans in which Company Employees participate to (i) waive any pre-existing condition limitations to the extent such conditions are covered under the applicable medical, health, or dental plans of Buyer or Buyer Bank, (ii) provide full credit under such plans for any deductible incurred by the employees and their beneficiaries under an analogous Company Benefit Plan during the portion of the calendar year prior to such participation, and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous Company Benefit Plan prior to the Effective Time for the plan year in which the Effective Time occurs.
(e) Each full-time employee of Company or Company Bank, other than an employee who is a party to an employment agreement, change in control agreement or other separation agreement that provides a benefit on a termination of employment, who is terminated by Buyer or its Subsidiaries (other than for cause) within six (6) months following the Effective Time shall receive a lump sum severance payment from Buyer or Buyer Bank or to the extent required by Section 409A of the Code, within the time period and in the form specified in the applicable agreement, in accordance with Company Disclosure Schedule 5.11(e) provided that such employee enters into a release of claims for the benefit of each of the parties Company and Buyer and their Subsidiaries and Affiliates in a form satisfactory to this AgreementBuyer.
(f) Except as provided in Section 5.11(g), and nothing in this Section 5.075.11, express expressed or implied, shall is intended to confer upon any other Person (including any Company Employee) any rights or remedies of any nature whatsoever under or by reason whatsoever. Without limiting the foregoing, no provision of this Section 5.075.11 will create any third party beneficiary rights in any current or former employee, director or consultant of Company or its Subsidiaries or ERISA Affiliates, any beneficiary or dependent thereof, or any collective bargaining representative thereof, in respect of continued employment (or resumed employment), compensation, terms and conditions of employment and/or benefits or any other matter. Nothing contained hereinin this Section 5.11, express expressed or implied implied, unless otherwise agreed to by Buyer, is intended (i) shall be construed to establishamend in accordance with its terms and applicable Law any Company Benefit Plan or any Buyer Benefit Plan, amend (ii) interfere with Buyer’s right from and after the Closing Date to terminate in accordance with its terms and applicable Law any Company Benefit Plan that is not terminated prior to the Effective Time or modify Buyer Benefit Plan (iii) require Buyer to establish or maintain any employee benefit plan, program(iv) interfere with Buyer’s right from and after the Effective Time to terminate the employment of or provision of services by any director, employee, independent contractor or consultant or (v) interfere with Buyer’s right from and after the Effective Time to change, terminate or add to the terms and conditions of employment or provisions of services by any director, employee, independent contractor or consultant, subject to the terms of any applicable employment contract or agreement.
(g) Buyer will take or cause its Subsidiaries to take all actions necessary to fund, pay, provide for, administer and maintain the Supplemental Executive Retirement Plan and the annuity contracts for each participant as set forth in Company Disclosure Schedule 5.11(g) in accordance with the terms of such agreements and arrangements, including any distribution terms, except to the extent any such agreement or arrangement is superseded or terminated, with the consent of the participant (or beneficiary, as applicable) provided that any such action shall not result in any tax under Section 409(A)(a) or (iib) shall alter or limit the ability of the Surviving CorporationCode payable by the participant (or beneficiary, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeveras applicable).
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Eagle Bancorp Montana, Inc.), Merger Agreement (Eagle Bancorp Montana, Inc.)
Employees; Benefit Plans. (a) During For a period of one year following the period commencing at Closing Date (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall, or shall cause the Surviving Corporation and each or any of its Subsidiariestheir respective Affiliates to, as applicableprovide to individuals who, immediately prior to provide the Effective Time, were employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectivelyeach, "an “Employee”)
(i) a salary or hourly wage rate and short-term (annual or more frequent) bonus or commission opportunity no less favorable than that provided to such Employee immediately prior to the Effective Time and (ii) other compensation and benefits (but not including equity and equity-based awards) that for such individual are substantially comparable in the aggregate to such compensation and benefits being provided to Employees immediately prior to the Effective Time.
(b) Parent Benefit Plans"shall, or shall cause the Surviving Corporation or any of their respective Affiliates to, honor all Company Employee Benefits (including all severance and similar plans and agreements) in which accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such Company Employee Benefits and except as provided herein; provided, that nothing herein shall prevent the amendment or termination of any specific plan, program policy, agreement or arrangement, or interfere with Parent’s, the Surviving Corporation’s or any of their respective Affiliates’ rights or obligations to make such changes, in each case as are necessary to comply with applicable Law. Notwithstanding the foregoing, for the later of the duration of the Continuation Period or the remaining term of any individual employment, severance or separation agreement in effect immediately prior to the Effective Time, Parent shall provide each Employee who suffers a termination of employment under circumstances that would have given the Employee a right to severance payments and benefits under the Company’s severance policy or individual employment, severance or separation agreement or other arrangement in effect immediately prior to the Effective Time (each, a “Company Severance Plan”) with severance payments and benefits no less favorable than those that would have been provided to such Employee under any Company Continuing Employees will participate effective Severance Plan. Following the end of the Continuation Period, Parent shall be permitted to alter the duties and employment terms applicable to a given Employee solely to the extent permitted under the terms of any employment agreement with such Employee, as in effect immediately prior to the Effective Time.
(c) As of and after the Effective Time, Parent shall, or shall cause the Surviving Corporation or any of their respective Affiliates to, recognize all recognize, without duplication, credit for purposes or vesting, eligibility to participate and for calculating severance and vacation entitlements (which shall, for the avoidance of doubt, exclude benefit accruals under any qualified or non-qualified defined benefit pension plan) for each such Employee’s years of service of the Company Continuing Employees with the Company or any of and its Subsidiaries, as Subsidiaries (and their predecessor entities) prior to the case may be as if Effective Time (“Prior Service”) (to the extent the Company recognized such service were with for corresponding benefits) under any employee compensation, incentive and benefit (including vacation and severance) plans, programs, policies and arrangements maintained for the benefit of Employees as of and after the Effective Time by Parent, for vesting and eligibility purposes its Subsidiaries or the Surviving Corporation (but not for (i) purposes of early retirement subsidies under any each, a “Parent Benefit Plan”). With respect to each Parent Plan that is a “welfare benefit plan” (as defined benefit pension in Section 3(1) of ERISA), Parent and its Subsidiaries shall use reasonable best efforts to (i) cause there to be waived any pre-existing condition or eligibility limitations (to the extent waived, satisfied or inapplicable under the corresponding plan or maintained by the Company and its Subsidiaries immediately prior to the Effective Time) and (ii) benefit accrual purposesgive effect, except for vacationin determining any deductible and maximum out-of-pocket limitations, if applicable) in any Parent Benefit Plan in which such to claims incurred and amounts paid by, and amounts reimbursed to, Employees under similar plans maintained by the Company Continuing Employees may be eligible and its Subsidiaries immediately prior to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(cd) This Section 5.07 shall be binding upon and inure solely With respect to any accrued but unused vacation time to which any Employee is entitled pursuant to the benefit vacation policy or individual agreement or other arrangement applicable to such Employee immediately prior to the Effective Time, Parent shall, or shall cause the Surviving Corporation or any of each their respective Affiliates to, (i) allow such Employee to use such accrued vacation pursuant to the terms of Parent’s or the Surviving Corporation’s vacation policy, as in effect from time to time, and (ii) if any Employee’s employment terminates during the Continuation Period under circumstances entitling the Employee to severance pay under the Company Severance Plan, pay the Employee, in cash, an amount equal to the value of the parties to this Agreementaccrued vacation time.
(e) Without limiting Section 8.11, and nothing in this Section 5.075.6, whether express or implied, shall shall: (i) confer upon any other Person current or former employee of the Company, Parent, the Surviving Corporation or any of their respective Affiliates (including any Employee), any rights or remedies including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Section 5.07. Nothing contained herein5.6, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit restrict the ability of the Parent, Surviving Corporation, Parent Corporation or any of their respective Subsidiaries or Affiliates to terminate the employment or service of any Person; (ii) be construed to modify, amend or create any employee benefit plan of the Company, Parent, Surviving Corporation or any of their respective Affiliates, (iii) limit the ability of Parent, the Surviving Corporation or any of their respective Subsidiaries or Affiliates to amend, modify or terminate any benefit or compensation plan, program, agreement agreement, Contract, policy or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not ; or (iv) create any right third-party beneficiary rights or obligations in any Company Employee or Person (including any Employee) other Person than the parties to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverthis Agreement.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Feldenkreis George), Merger Agreement (Perry Ellis International, Inc)
Employees; Benefit Plans. (a) During For a period of one year following the period commencing at Closing Date (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to will provide the current employees of the Company and its Subsidiaries as of the Effective Time who continue employment with the Surviving Corporation (“Employees”) with compensation and benefits that are no less favorable in the aggregate than those provided under the Company’s compensation and benefit plans, programs, policies, practices and arrangements (excluding equity-based programs) in effect at the Effective Time (it being understood that discretionary incentive programs will remain employed discretionary); provided, however, that nothing herein will prevent the amendment or termination of any specific plan, program or arrangement, require that the Surviving Corporation provide or permit investment in the securities of the Surviving Corporation or interfere with the Surviving Corporation’s right or obligation to make such changes as are necessary to comply with applicable Law. Notwithstanding anything to the contrary set forth herein, nothing herein shall preclude the Surviving Corporation from terminating the employment of any Employee for any reason for which the Company could have terminated such Employee prior to the Effective Time.
(b) The Surviving Corporation and its Affiliates will honor all Company Benefit Plans (including any severance, retention, change of control and similar plans, agreements and written arrangements) in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such plans, agreements or written arrangements. During the Continuation Period, the Surviving Corporation will provide all Employees (other than those covered by an individual agreement providing severance benefits outside the Company’s severance policies) who suffer a termination of employment with severance benefits no less favorable than those that would have been provided to such Employees under the Company’s severance policies as in effect immediately prior to the Effective Time.
(c) For all purposes under the employee benefit plans of the Surviving Corporation and its Affiliates providing benefits to any Employees after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation“New Plans”), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by each Employee will be credited with his or her years of service with the Company and its Subsidiaries on Affiliates before the date of this Agreement.
Effective Time (b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent including predecessor or acquired entities or any of other entities for which the Company and its SubsidiariesAffiliates have given credit for prior service), excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectivelyto the same extent as such Employee was entitled, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of before the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if to credit for such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent the corresponding Company Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposesPlan, except for vacationpurposes of benefit accrual under defined benefit plans, if applicable) in for any Parent Benefit Plan in which such Company Continuing Employees may be eligible purpose where service credit for the applicable period is not provided to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intoparticipants generally, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized and to the extent that (A) such recognition credit would result in a duplication of benefits or (B) such service was not recognized under accrual of benefits. In addition, and without limiting the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each generality of the parties to this Agreementforegoing, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall each Employee immediately will be construed eligible to establishparticipate, amend without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or modify any benefit plancomparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (such plans, programcollectively, agreement or arrangement or the “Old Plans”) and (ii) shall alter for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Employee, the Surviving Corporation will cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Employee and his or limit her covered dependents, to the ability extent any such exclusions or requirements were waived or were inapplicable under any similar or comparable Company Benefit Plan, and the Surviving Corporation will cause any eligible expenses incurred by such Employee and his or her covered dependents during the portion of the Surviving Corporationplan year of the Old Plan ending on the date such Employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, Parent coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or any of 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 hereto acknowledge and agree that her covered dependents for the terms set forth applicable plan year as if such amounts had been paid in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment accordance with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeversuch New Plan.
(d) With respect to matters described in No provision of this Section 5.075.7 will create any third party beneficiary rights in any current or former employee, director or consultant of the Company will not send or its Subsidiaries in respect of continued employment (or resumed employment) or any written notices or other written communication materials to Company Employees without the prior written consent of Parentmatter.
Appears in 2 contracts
Samples: Merger Agreement (Theragenics Corp), Merger Agreement (Michas Alexis P)
Employees; Benefit Plans. (aA) During the period commencing at the Effective Time and ending on the date which is FIVE twelve (“5”12) months from following the Effective Time (or if earlierClosing, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall Buyer will cause the Surviving Corporation and each of its Subsidiaries, as applicable, Company to provide the employees of the Company and its Subsidiaries each Employee who remain remains employed immediately after the Effective Time Closing (collectively, the "“Company Continuing Employees"Employee”) with with: (1) base salary, salary or hourly wages which are no less than the base salary or hourly wages provided by the Company immediately before the Closing; (2) target bonus opportunities (excluding equity-based compensation), and employee benefits that areif any, in the aggregate, which are no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits ) provided by the Company immediately before the Closing; (3) retirement and its Subsidiaries on welfare benefits that are no less favorable in the date of this Agreementaggregate than those provided by the Company immediately before the Closing, and (4) severance benefits that are no less favorable than the practice, plan or policy in effect for such Company Continuing Employee immediately before the Closing.
(bB) With respect to Regarding any "employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries subsidiary (collectively, "Parent “Buyer Benefit Plans"”) in which any Company Continuing Employees will participate effective as of the Effective TimeClosing, Parent shall, or shall Buyer will cause the Surviving Corporation to, Company to recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with ParentBuyer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective TimeClosing Date; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall need not be recognized to the extent that (A1) such recognition would result in cause a duplication of benefits or (B2) such service was not recognized under the corresponding Company Employee Benefit Plan.
(cC) This Section 5.07 shall be binding upon 6.12 binds and inure inures solely to the benefit of each of the parties party to this Agreement, and nothing in this Section 5.076.12, express or implied, shall confer upon confers on any other Person any rights or remedies of any nature whatsoever under or by reason of from this Section 5.076.12. Nothing contained hereinin this Section, express or implied (i) shall implied, may be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto acknowledge Buyer and Sellers agree that the terms set forth in this Section 5.07 shall not create any 6.12 creates no right in any Company Employee or any other Person to any continued employment with the Surviving CorporationCompany, Parent Buyer or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoevernature.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (McBc Holdings, Inc.), Membership Interest Purchase Agreement
Employees; Benefit Plans. 5.11.1. The Company shall terminate its 401(k) Plan (athe “401(k) Plan”) no later than the day prior to the Closing Date, by resolution adopted by the Company’s board of directors which indicates the specific date, month and year of termination, on terms reasonably acceptable to Buyer, and simultaneously amend the 401(k) Plan to the extent necessary to comply with all applicable Laws to the extent not previously amended and to permit participants in the 401(k) Plan to rollover any outstanding loan promissory notes to a qualified plan of another employer. Prior to adopting any such resolutions or amendments to the 401(k) Plan, Buyer shall have the right to review and comment on same (with such reasonable comments to be considered by the Company in good faith). At the Closing, the Company shall deliver to Buyer a certified copy of such resolutions of the Company’s board of directors. As soon as reasonably practicable after the Closing (and after all required testing has been performed and corrective contributions and distributions, if any, have been made), but in no event later than the one-year anniversary of the Closing Date, Buyer shall, and shall cause the Surviving Corporation, to take all actions necessary to wind up the 401(k) Plan. If any amounts accrued under the 401(k) Plan are withheld from the 401(k) Plan participants’ paychecks three (3) Business Days or less prior to the Closing Date, and if such amounts are not remitted to the 401(k) Plan by the Company prior to the Closing, Buyer shall cause the Surviving Corporation to remit such amounts to the 401(k) Plan.
5.11.2. During the period commencing at the Effective Time Closing and ending on the date last day of the calendar year in which is FIVE (“5”) months from the Effective Time Closing occurs (or if earlier, the date of the employee's ’s termination of employment with Parent and the Surviving Corporation or any of its Subsidiaries), Parent Buyer shall cause the Surviving Corporation or its Subsidiaries to provide each employee who is employed by the Company or a Company Subsidiary as of the Closing and each who remains employed by the Surviving Corporation or any of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time Closing (collectively, the "Company each a “Continuing Employees"Employee”) with (i) the base salarysalary and annual cash bonus opportunity (but, target for the avoidance of doubt, excluding any change in control or transaction bonus opportunities opportunity), if any, that is no less favorable than that provided to such Continuing Employee immediately prior to the Closing and (excluding ii) except with respect to any compensation or benefits payable under any equity or equity-based compensation)incentive plan or arrangement, and defined benefit pension plan or arrangement or change in control plan or arrangement, other employee benefits that are, in the aggregate, no less favorable than substantially comparable to those provided to similarly situated employees of the base salaryBuyer during such period. For the avoidance of doubt, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by nothing in this Section 5.11.2 shall be deemed to limit or modify the obligation of the Company and its Subsidiaries or any Company Subsidiary to comply with any change in control or transaction bonus relating to any change of control or transaction entered into after the Effective Time in accordance with the terms of any contract as in effect on the date of this Agreement.
(b) 5.11.3. With respect to any "employee benefit plan" as plan (other than any plan that provides for equity awards, defined benefit pension benefits or change in Section 3(3control benefits) of ERISA maintained by Parent Buyer or any of its SubsidiariesAffiliates, excluding both any retiree healthcare plans or programs maintained by Parent or including the Surviving Corporation and any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries after the Closing, (collectively, "Parent “Buyer Benefit Plans"”) in which any Company Continuing Employees will participate effective as of the Effective TimeClosing and for which eligibility depends on length of service, Parent Buyer shall, or shall cause the Surviving Corporation or any applicable Subsidiary thereof to, recognize all service of the Company Continuing Employees with the Company or any and the Company Subsidiaries as of its Subsidiariesand through the Closing Date to the extent recognized under a comparable Company Employee Plan, as the case may be as if such service were with ParentBuyer or its Affiliates, solely for vesting and eligibility purposes (but not for (ivesting) purposes of early retirement subsidies under any Parent such Buyer Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposesPlan; provided, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Planbenefits.
(c) 5.11.4. This Section 5.07 5.11 shall be binding upon and inure solely to the benefit of each of the parties Parties to this Agreement, and nothing in this Section 5.075.11, express or implied, shall confer upon any Continuing Employee or any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.11. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) arrangement, nor shall alter or this Section 5.11 be deemed to limit the ability right of the Company, any Company Subsidiary, the Surviving Corporation, Parent Buyer or any of their respective Affiliates to amendfrom modifying, modify terminating or terminate amending any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of themCompany Employee Plan after the Closing. The parties hereto Parties acknowledge and agree that the terms set forth in this Section 5.07 5.11 shall not create any right in any Company employee, any Continuing Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Select Medical Corp)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent Enterprise Benefit Plans") Plan in which any Company employee of First Choice or any First Choice Subsidiary on the Closing Date (the “Continuing Employees Employees”) will participate effective as of the Effective Timeparticipate, Parent Enterprise shall, or shall cause the Surviving Corporation First Choice to, recognize recognize, for vesting, eligibility and benefit accrual purposes (other than benefit accruals under a defined pension plan), all service of the Company Continuing Employees with the Company First Choice or any of its Subsidiaries, as the case may be First Choice Subsidiary (including any predecessors thereof) as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective TimeEnterprise; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (Ai) such recognition would result in a duplication of benefits or (Bii) such service was not recognized under the corresponding Company First Choice Benefit Plan.
(b) Enterprise shall maintain the terms and conditions of employment applicable to the Continuing Employees (including salary, incentive compensation opportunities, severance benefits, medical benefits, other welfare benefits, fringe benefits, work location, and position) on terms and conditions that are no less favorable, in the aggregate, to the terms and conditions of employment of such Continuing Employees provided by First Choice or any First Choice Subsidiary immediately prior to the Closing until the harmonization date identified on Section 5.13(b) of the Enterprise Disclosure Schedule applicable to such term or condition. Notwithstanding the foregoing, nothing in this provision shall prevent Enterprise from transferring some or all of the Continuing Employees to Enterprise’s benefit plans on substantially similar terms as existing Enterprise employees and nothing in this section shall guarantee any Continuing Employee Planthe right to continued employment for any period of time.
(c) Enterprise shall (i) waive or cause to be waived any waiting periods, evidence of insurability requirements, or pre-existing condition limitations and similar limitations with respect to participation and coverage requirements applicable to the Continuing Employees and (ii) provide each Continuing Employee with credit for any co-payments and deductibles paid prior to the Closing Date in satisfying any applicable deductible or out-of-pocket requirements under such group health plan.
(d) With respect to severance benefits, in addition to the term of employment of such Continuing Employee at Enterprise and/or EB&T, Enterprise shall also credit the term of employment of any Continuing Employee who becomes entitled to severance benefits after Closing with service credit relating to their service provided to First Choice and/or First Choice Bank prior to the Effective Time to the extent such service would have been recognized under the First Choice’s severance plan as in effect immediately prior to Closing.
(e) This Section 5.07 5.13 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.075.13, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.13. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 5.13 shall not create any right in any Company Employee employee or any other Person to any continued employment with the Surviving CorporationFirst Choice or its Subsidiaries, Parent Enterprise or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (Enterprise Financial Services Corp), Merger Agreement (First Choice Bancorp)
Employees; Benefit Plans. (a) During Following the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (Closing Date, BHB may choose to maintain any or if earlier, the date all of the employee's termination of employment with Parent and LSBG Benefit Plans in its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the sole discretion. Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable later than the base salaryday immediately preceding the Closing Date, target bonus opportunities LSBG shall terminate any LSBG Benefit Plans for which participant consent is not required and that BHB has requested to be terminated by providing written notice to LSBG at least fifteen (excluding equity-based compensation)15) days prior to the Closing Date. No later than the day immediately preceding the Closing Date, and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent LSBG shall provide BHB with evidence that such LSBG Benefit Plans") in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with ParentPlans have been terminated. However, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent LSBG Benefit Plan that terminated for which there is a comparable BHB Benefit Plan of general applicability (other than the defined benefit pension plan or any nonqualified deferred compensation plans or arrangements maintained by BHB), BHB shall take all reasonable action so that employees of LSBG shall be entitled to participate in such BHB Benefit Plan to the same extent as similarly-situated employees of BHB (ii) benefit accrual purposes, except for vacation, if applicable) it being understood that inclusion of the employees of LSBG in any Parent the BHB Benefit Plans may occur at different times with respect to different plans). BHB shall cause each BHB Benefit Plan in which such Company Continuing Employees may be employees of LSBG are eligible to participate after to take into account for purposes of eligibility and vesting under the Effective TimeBHB Benefit Plans (but not for purposes of benefit accrual) the service of such employees with LSBG and its Subsidiaries to the same extent as such service was credited for such purpose by LSBG (other than for the defined benefit pension plan or any nonqualified deferred compensation plans or arrangements maintained by BHB); (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intoprovided, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits. Nothing herein shall limit the ability of BHB to amend or terminate any of the LSBG Benefit Plans or BHB Benefit Plans in accordance with their terms at any time; provided, however, that BHB shall continue to maintain the LSBG Benefit Plans (Bother than stock-based or incentive plans and the defined benefit pension plan and any nonqualified deferred compensation plans or arrangements) for which there is a comparable BHB Benefit Plan until the LSBG Employees are permitted to participate in the BHB Benefit Plans, unless such service was not recognized BHB Benefit Plan has been frozen or terminated with respect to similarly-situated employees of BHB or any Subsidiary of BHB.
(b) BHB shall assume and honor, under the corresponding Company vacation policies of LSBG, as disclosed on LSBG Disclosure Schedule 3.18, the accrued but unused vacation time of employees of the Surviving Corporation who were employees of LSBG prior to the Effective Time. BHB shall also assume and honor, under the severance pay policies of LSBG, as disclosed on LSBG Disclosure Schedule 3.18, the rights to severance of the employees of the Surviving Corporation who were employees of LSBG prior to the Effective Time. Following the Effective Time BHB shall, and shall cause Bar Harbor Bank, to give priority to terminated LSBG Employees with respect to any job postings at BHB or Bar Harbor Bank, as applicable, for which any such LSBG Employee Planis qualified.
(c) If employees of LSBG become eligible to participate in a medical, dental or health plan of BHB upon termination of such plan of LSBG, BHB shall make all commercially reasonable efforts to cause each such plan to (i) waive any preexisting condition limitations to the extent such conditions are covered under the applicable medical, health or dental plans of BHB, and (ii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous LSBG Benefit Plan prior to the Effective Time.
(d) Concurrently with the execution of this Agreement, LSBG shall obtain from each of the individuals named in LSBG Disclosure Schedule 5.13(d) an agreement (a “Settlement Agreement”) to accept in full settlement of his or her rights under the specified programs the amounts and benefits determined under his or her Settlement Agreement (the aggregate amounts of such payments to be specified in LSBG Disclosure Schedule 5.13(d)) and pay such amounts to such individuals who are employed at the Effective Time pursuant to the terms of the Settlement Agreement, subject to a cut-back of any payment that would constitute an “excess parachute payment”, as defined in Section 280G of the Code, such that no portion of the payment will be subject to the excise tax imposed by Section 4999 of the Code. As to, and only as to, each individual who enters into a Settlement Agreement, BHB acknowledges and agrees that (i) the Merger constitutes a “change of control” or “change in control” for all purposes pursuant to such agreements, and (ii) LSBG will pay out all cash amounts under such agreements at the Closing Date, to the extent permitted by Section 409A of the Code. Any officer or employee of LSBG who is a party to a Settlement Agreement shall be entitled to receive the benefits payable or to be otherwise provided pursuant to the terms of such Settlement Agreement, and BHB agrees to provide the non-cash benefits, if any, pursuant to the terms of the Settlement Agreement.
(e) Concurrently with the execution of this Agreement, BHB and Bar Harbor Bank are entering into an employment agreement with Xxxxxxx X. XxXxxx in the form attached hereto as Exhibit C to be effective as of the Effective Time, and BHB, Bar Harbor Bank, LSBG and Lake Sunapee Bank will enter into settlement agreements with Xxxxxxx X. Xxxxxxx, Xxxxxxx X. XxXxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxx, Xxxxxxx X. Xxxxxx and Xxxxx Xxxxxx in the forms attached hereto as Exhibits D-1 to D-7 hereto, respectively, to be effective as of the Effective Time.
(f) BHB shall provide a retention pool in an amount up to $350,000 for the benefit of certain employees of LSBG to be designated by BHB at its sole discretion; provided that, any such designations shall be made in consultation with LSBG. Such designated employees will enter into retention agreements to be agreed upon by BHB and LSBG.
(g) This Section 5.07 5.13 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.075.13, express or implied, shall confer upon any other Person LSBG or BHB employee, or any legal representative or beneficiary thereof, any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained hereinremedies, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create including any right in any Company Employee to employment or any other Person to any continued employment with the Surviving Corporationfor any specified period, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described whatsoever under this Agreement. Nothing in this Section 5.075.13, the Company will not send express or implied, shall be deemed an amendment of any written notices plan providing benefits to any LSBG or other written communication materials to Company Employees without the prior written consent of ParentBHB employee.
Appears in 2 contracts
Samples: Merger Agreement (Lake Sunapee Bank Group), Merger Agreement (Bar Harbor Bankshares)
Employees; Benefit Plans. (a) During Following the period commencing at Closing, each Employee who is employed immediately prior to the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity who continues to be employed by Parent and its Subsidiaries (including the Surviving Company and its Subsidiaries) immediately following the Effective Time (each, a “Continuing Employee”), shall be eligible to receive compensation arrangements maintained and participate in employee benefit plans that are maintained, sponsored or contributed to by Parent or any one of its Subsidiaries (collectivelythat are provided to Continuing Employees, "in each case as determined by Parent Benefit Plans") in which any Company its sole discretion, and subject to Parent’s standard hiring procedures and the successful completion of a background check. Parent shall be responsible for communicating the compensation and employee benefits to be provided to the Continuing Employees will participate effective as of generally following the Effective Time and, to the extent such communication is made prior to the Effective Time, will provide the Company with a copy of such communication in advance.
(b) For purposes of determining eligibility, vesting (other than for purposes of equity grants by Parent made after the Effective Time) and the level of benefit and benefit accrual under the employee benefit plans, programs and policies of Parent and its Subsidiaries providing benefits to any Continuing Employee after the Effective Time (the “New Plans”), each Continuing Employee shall be credited with such Continuing Employee’s service with the Company and its Subsidiaries and their respective predecessors before the Effective Time, to the same extent as such Continuing Employee was entitled, before the Effective Time, to credit for such service under any similar Benefit Plan in which such Continuing Employee participated or was eligible to participate immediately prior to the Effective Time (such plans, collectively, the “Old Plans”); provided, that the foregoing shall not apply to the extent that its application would result in a duplication of benefits with respect to the same period of service. In addition, and without limiting the generality of the foregoing, for purposes of each New Plan providing medical, dental, or other welfare benefits to any Continuing Employee, Parent shall, or shall cause the Surviving Corporation Company to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may cause to be as if such service were with Parentwaived, for vesting such Continuing Employee and eligibility purposes (but not for (i) purposes such Continuing Employee’s covered dependents, any evidence of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposesinsurability requirements, except for vacationall pre-existing condition exclusions and actively-at-work requirements of such New Plan, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits conditions were inapplicable, satisfied or (B) such service was not recognized waived under the corresponding comparable Old Plan. Parent shall, or shall cause the Surviving Company to, use its commercially reasonable efforts to cause any eligible expenses incurred by any Continuing Employee Planand such Continuing Employee’s covered dependents under each Old Plan during the calendar year in which the Effective Time occurs for purposes of satisfying all deductible, coinsurance and maximum out of pocket requirements applicable to such Continuing Employee and such Continuing Employee’s covered dependents for the applicable plan year.
(c) This Parent shall, and shall cause the Surviving Company and any successor thereto to honor, assume, fulfill and discharge the Company’s and its Subsidiaries’ obligations under the Benefit Plans listed on Section 5.07 5.12(c) of the Company Disclosure Letter.
(d) Prior to making any written or oral communications to the Continuing Employees pertaining to compensation or benefit matters that are affected by the Merger or the other transactions contemplated by this Agreement, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
(e) The Company shall take (or cause to be taken) all actions necessary or appropriate to terminate, effective no later than the day immediately preceding the Closing Date, any Benefit Plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (the “401(k) Plans”), unless Parent, in its sole and absolute discretion, agrees to sponsor and maintain such 401(k) Plans by providing the Company with written notice of such election at least ten (10) Business Days before the Effective Time. Unless Parent provides such notice to the Company, Parent shall receive from the Company, prior to the Effective Time, evidence that the Company Board has adopted resolutions to terminate the 401(k) Plans (the form and substance of which resolutions shall be binding subject to review of Parent and the Company shall consider in good faith any comments made by Parent or its representatives regarding the content of such resolutions), effective no later than the date immediately preceding the Closing Date. In the event that the distributions of assets from the trust of a 401(k) Plan which is terminated is reasonably anticipated to trigger liquidation charges, surrender charges or other fees to be imposed upon the account of any participant or beneficiary of such terminated plan or upon any Company or plan sponsor, then the Company shall take such actions as are necessary to reasonably estimate the amount of such charges and/or fees and inure solely provide such estimate in writing to Parent prior to the Effective Time. The Company also shall take such other actions in furtherance of terminating such 401(k) Plans as Parent may reasonably require. If Parent, in its sole and absolute discretion, agrees to sponsor and maintain any 401(k) Plan, the Company shall (or shall cause its Subsidiaries) to amend such 401(k) Plan, effective as of the Effective Time, to the extent necessary to limit participation to employees of the Company and its Subsidiaries and to exclude all employees of Parent and its Subsidiaries (other than the Company and its Subsidiaries) from participation in such plan, provided, however, that Parent must give the Company written notice of its decision to sponsor and maintain any such 401(k) Plan at least ten (10) Business Days prior to the Effective Time.
(f) The provisions of this Section 5.12 are solely for the benefit of each of the parties to this Agreement, and nothing in this Section 5.07Agreement, whether express or implied, shall confer upon any other Person any rights is intended to, or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained hereinshall, express or implied (i) shall be construed constitute the establishment or adoption of or an amendment to establish, amend any employee benefit or modify any benefit compensation plan, program, agreement agreement, contract, policy or arrangement or otherwise be treated as an amendment or modification of any Benefit Plan, New Plan or other benefit plan or arrangement, (ii) shall alter or limit the ability right of Parent, the Surviving Corporation, Parent Company or any of their respective Affiliates Subsidiaries to amend, terminate or otherwise modify any Benefit Plan, New Plan or terminate any other benefit plan, program, agreement or arrangement following the Effective Time, (iii) confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Company or any Affiliate of Parent, or interfere with or restrict in any way the rights of Parent, the Surviving Company or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time assumedfor any reason whatsoever, establishedwith or without cause, sponsored except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Company or maintained by any Affiliate of them. The parties hereto acknowledge Parent and agree that the terms set forth in this Section 5.07 shall not Continuing Employee, or (iv) create any third-party beneficiary or other right (including, but not limited to, a right to employment or continued employment) in any Person, including any current or former director, employee or consultant of the Company Employee or any other Person to any continued employment with Subsidiary of the Surviving CorporationCompany, Parent or any of their respective Subsidiaries or compensation or benefits of participant in any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07Benefit Plan, the Company will not send any written notices New Plan or other written communication materials to Company Employees without the prior written consent of Parentbenefit plan, agreement or arrangement (or any dependent or beneficiary thereof).
Appears in 2 contracts
Samples: Merger Agreement (Renaissancere Holdings LTD), Merger Agreement (Platinum Underwriters Holdings LTD)
Employees; Benefit Plans. (a) During For a period of one year following the period commencing at Closing Date (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, Amalgamated Company to provide the employees of the Company and its Subsidiaries as of the Effective Time (“Employees”) with compensation and benefits (other than equity compensation) that are no less favorable in the aggregate than those provided under the Company’s compensation and benefit plans, programs, policies, practices and arrangements in effect at the Effective Time; provided, however, that during such one-year period, nothing herein shall prevent the amendment or termination of any specific plan, program or arrangement, require that the Amalgamated Company provide or permit investment in the securities of Parent or the Amalgamated Company or interfere with the Amalgamated Company’s right or obligation to make such changes as are necessary to comply with applicable Law. Notwithstanding anything to the contrary set forth herein, nothing herein shall preclude the Amalgamated Company from terminating the employment of any Employee.
(b) Parent shall and shall cause the Amalgamated Company to honor the individual agreements and Company Benefit Plans listed in Section 5.8(b)(i) of the Company Disclosure Letter in effect as of the date hereof in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such agreements and Company Benefit Plans and except as provided herein. During the Continuation Period, Parent shall provide all Employees who remain employed suffer an involuntary termination of employment without cause with severance benefits no less favorable than those that would have been provided to such Employees under the Company’s severance policy as in effect immediately prior to the date hereof and as set forth in Section 5.8(b)(ii) of the Company Disclosure Letter.
(c) For the purposes of determining eligibility and vesting under the employee benefit plans of Parent and its Affiliates in which any Employees may become eligible to participate after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation“New Plans”), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by each Employee shall be credited with his or her years of service with the Company and its Subsidiaries on Affiliates before the date of this Agreement.
Effective Time (b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent including predecessor or acquired entities or any of other entities for which the Company and its SubsidiariesAffiliates have given credit for prior service), excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectivelyto the same extent as such Employee was entitled, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of before the Effective Time, Parent shallto credit for such service under any similar or comparable Company Benefit Plans; provided, however, that the foregoing shall not apply for purposes of vesting or shall cause eligibility for any plans which are frozen to new participants, benefit accrual under any defined benefit pension plans or to the Surviving Corporation toextent it would result in duplication of benefits. In addition, recognize all service and without limiting the generality of the foregoing: (i) each Employee immediately shall be eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or comparable Company Continuing Employees Benefit Plan in which such Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”); and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Employee, Parent shall use commercially reasonable efforts to cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Employee and his or her covered dependents, and Parent shall use commercially reasonable efforts to cause any eligible expenses incurred by such Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out of pocket requirements applicable to such Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(d) Nothing in this Agreement is intended to (i) be treated as an amendment to any particular Company Benefit Plan, (ii) prevent Parent from amending or terminating any of its benefit plans in accordance with their terms or (iii) create any third-party beneficiary rights in any employee of the Company or any of its Subsidiaries, as any beneficiary or dependent thereof, or any collective bargaining representative thereof, with respect to the case compensation, terms and conditions of employment and/or benefits that may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies provided to any Employee by Parent or the Company or under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parentmay maintain.
Appears in 2 contracts
Samples: Amalgamation Agreement, Agreement and Plan of Amalgamation (SeaCube Container Leasing Ltd.)
Employees; Benefit Plans. (a) During Sellers shall deliver to Buyers a true and complete list, as of a date within four (4) business days subsequent to the period commencing date hereof, of (i) the names, titles, annualized salary and other compensation of all employees of Sellers and the Sold Companies engaged in the Business and those employees of Seller Parent not engaged in the Business, the identities of which Buyer Parent and Seller Parent have agreed to in writing (together, the “Business Employees”) and (ii) all Persons who are currently performing services by or on behalf of any Seller or Sold Company for the Business who are classified as “consultants” or “independent contractors” (the “Other Personnel”). Between the date hereof and the Closing Date, the parties shall act in accordance with Schedule 8.01(a)(i) and, except as set forth on Schedule 8.01(a)(ii), Buyers shall offer employment to all such Business Employees, including those Business Employees who are at the Effective Time time on a military leave, a leave of absence under the Family Medical Leave Act or comparable state law, workers’ compensation leave, or a short-term disability leave. Such offers shall be at current salary levels received by such persons. Business Employees who accept Buyers’ offer of employment and ending Business Employees who are employees of a Sold Company are herein referred to as “Transferred Employees.” For the avoidance of doubt, Buyers shall not be obligated to continue or assume any liabilities with respect to any Employee Plans or Benefit Arrangements of any Seller, other than from a Sold Company (the Employee Plans and Benefit Arrangements pertaining to which are described on Schedule 8.01(a)(iii)), and, except as provided in Section 8.01(c), Sellers shall remain responsible for the date which is FIVE (“5”) months from payment to the Transferred Employees of salary and benefits through the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this AgreementTime.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) Buyer Parent has entered into employment agreements with certain of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 the Key Employees will participate effective as of the Effective Time, date hereof and has provided Seller Parent shall, or shall cause the Surviving Corporation to, recognize with copies of all service such agreements. Buyer Parent has also made offers of the Company Continuing Employees with the Company or any employment to those persons previously agreed in writing between Buyer Parent and Seller Parent to be extended offers of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized prior to the extent that (A) date hereof and Buyer Parent has provided Seller Parent with copies of all such recognition would result in a duplication offers of benefits or (B) such service was not recognized under the corresponding Company Employee Planemployment.
(c) This In connection with the termination of employment contemplated by this Section 5.07 8.01, Business Employees of Seller located in the United States shall be binding upon and inure solely paid by Sellers one hundred percent (100%) of their accrued but unused paid time-off pursuant to the benefit of each Flex Time Program as of the parties Closing Date. Commencing on the day following the Closing Date, for Transferred Employees in the United States, Buyer will provide each active Transferred Employee advance access to this Agreementhis/her full year’s vacation accrual calculated in accordance with Buyer’s vacation entitlement guidelines based on the length of service for each Transferred Employee. With respect to the treatment of vacation accrual at Buyer, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (iSchedule 8.01(c) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeveralso apply.
(d) The employment by Sellers of the Transferred Employees shall end at 11:59 p.m. Eastern Daylight Time on the Closing Date, and the employment by Buyers of the Transferred Employees who accept Buyers’ employment offers shall commence immediately subsequent to 11:59 p.m. Eastern Daylight Time on the Closing Date (the “Effective Time”), or such later time as mutually agreed between Buyer and Seller. Accordingly, at the Effective Time or such later time, Sellers shall treat all Transferred Employees as having had their employment terminated with Sellers. Notwithstanding the foregoing, each Transferred Employee who, as of the Closing, is classified by Sellers as an employee on a military leave, a leave of absence under the Family and Medical Leave Act or comparable state law, a workers’ compensation leave, or a short-term disability leave under Sellers’ disability plan and who accepts Buyers’ employment offer, shall commence employment with the Buyers on the date (i) in the case of military leaves and leaves of absence under the Family and Medical Leave Act or comparable state law, the leave entitlement expires, and (ii) in the case of workers’ compensation and short-term disability leaves, such Transferred Employee is able to resume employment in accordance with Buyer’s policies and procedures in the capacity which such Transferred Employee performed for Sellers prior to commencing such leave. For avoidance of doubt, Buyers shall not be responsible for any liabilities resulting to Sellers with respect to Business Employees who are offered employment by Buyers in accordance with Section 8.01(a) but who do not accept such offer of employment, provided Buyers have otherwise complied with the terms of this Article 8 with respect to such Business Employees.
(e) Sellers will not take any action that would impede, hinder, interfere or otherwise compete with Buyers’ effort to hire any Business Employees. Buyers shall not assume responsibility for any Business Employee unless and until such employee commences employment with a Buyer. Buyers shall have no obligation to pay any severance payments to which any Business Employee who is not a Transferred Employee may be entitled as a result of the transactions contemplated by this Agreement. Buyers shall not have any obligation pursuant to this Agreement with respect to any Business Employee who does not accept employment with a Buyer prior to or at the Effective Time.
(f) In addition to the obligations of Buyers pursuant to 8.01(a) hereof, Buyers shall make available to all Transferred Employees as of the Closing Date employee benefit plans and arrangements that are comparable in the aggregate to all employee benefit plans and arrangements that are available to similarly situated employees of Buyers. In the United States those benefit plans are as follows: medical, dental, vision, short-term disability, basic long-term disability, optional long-term disability, basic life insurance, basic accidental death and disability insurance, optional life insurance, optional accidental death and disability, dependent life insurance, flexible spending account (medical and dependent care), business travel and accident insurance, 401(k) plan 100% match up to 5% of compensation, severance benefits, and vacation/time off. Buyers shall cause such plans to count, for purposes of eligibility and vesting, all service of Transferred Employees counted for such purposes under corresponding Employee Plans of Sellers. With respect to matters described any “welfare benefit plan” (as defined in Section 3(1) of ERISA) offered to Transferred Employees, Buyers shall (i) cause to be waived any pre-existing condition limitation to the same extent such pre-existing condition was waived under an Employee Plan and (ii) provide that any expenses incurred by a Transferred Employee during the calendar year in which the Closing Date occurs under a similar Employee Plan shall be taken into account for purposes of satisfying applicable deductible, co-payment and maximum out-of-pocket limitations. Buyer Parent and Seller Parent may agree in writing that Seller Parent shall extend to all or a portion of the Transferred Employees the coverage of certain of Seller’s Employee Plans or Benefit Arrangements until December 31, 2005, in which case Buyer Parent shall reimburse Seller Parent for expenses incurred by Seller Parent in connection therewith.
(g) Buyer Parent and Seller Parent shall select a date (no later than 90 days after the Closing Date) as of which the entire account balances (including loans) of the Transferred Employees under the Seller Parent’s 401(k) Plan shall be valued and transferred, in a trustee-to-trustee transfer, to Buyer Parent’s 401(k) Plan. Subject to the completion of such asset transfer in accordance with this Section 5.078.01(g), and in consideration of such asset transfer, Buyer Parent shall cause the Company will not send Buyer Parent’s 401(k) Plan to assume the liabilities attributable to the account balances of the Transferred Employees under Seller Parent’s 401(k) Plan. Seller Parent shall be responsible for matching contributions under Seller Parent’s 401(k) Plan for the period from January 1, 2005 to the Closing Date and shall make the appropriate payments or reimbursements as necessary to participants, Buyer Parent, or Seller Parent’s or Buyer Parent’s 401(k) Plan, as appropriate, and Buyer Parent shall be responsible for matching contributions under Buyer Parent’s 401(k) Plan for the period from the Closing Date to the end of the year. For the purpose of any written notices year-end employment requirement for receiving matching contributions under Seller Parent’s 401(k) Plan, Seller Parent shall consider employment with any Buyer as employment with Seller Parent.
(h) No provision of this Article shall create any third party beneficiary or other written communication materials to Company Employees without rights in any employee or former employee (including any beneficiary or dependent thereof) of any Seller or of any of its subsidiaries in respect of continued employment (or resumed employment) with either Buyers or the prior written consent Business or any of Parenttheir Affiliates, and no provision of this Section 8.01 shall create any such rights in any such Persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Plan or Benefit Arrangement or any plan or arrangement that may be established by Buyers or any of their Affiliates.
Appears in 2 contracts
Samples: Asset and Stock Purchase Agreement (Teradyne Inc), Asset and Stock Purchase Agreement (Amphenol Corp /De/)
Employees; Benefit Plans. (a) During For the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time Closing Date until December 31, 2012 (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries“Continuation Period”), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation or any of their respective Subsidiaries or Affiliates to, recognize all service provide to each individual who, immediately prior to the Effective Time is an employee of the Company Continuing Employees with the Company or any of its Subsidiaries, as including any individual on short-term disability leave immediately prior to the case may be as if such service were with ParentEffective Time (each, for vesting and eligibility purposes an “Employee”) the same salary or hourly wage rate (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacationcommission rate, if applicable) provided to such Employee immediately prior to the Effective Time. Notwithstanding anything to the contrary set forth herein, after the Effective Time, nothing herein shall preclude the Surviving Corporation from terminating the employment of any Employee for any reason. Additionally, nothing herein shall require Parent, the Surviving Corporation or any of their respective Subsidiaries and Affiliates to pay any bonus or grant any equity or equity-based awards.
(b) For the Continuation Period, Parent shall, or shall cause the Surviving Corporation and each of their respective Subsidiaries and Affiliates to, offer Employees benefits at least as favorable, in the aggregate, as those provided by the existing Company Benefit Plans (excluding any non-union pension plan, equity based compensation plans and bonus and incentive compensation plans) in effect immediately prior to the Effective Time. Notwithstanding the foregoing, nothing herein shall interfere with Parent’s, the Surviving Corporation’s or any of their respective Subsidiaries’ or Affiliates’ rights or obligations to make such changes as are necessary to comply with applicable Law.
(c) For the one-year period from the Closing Date until the first anniversary of the Closing Date, Parent shall, or shall cause the Surviving Corporation or any of their respective Subsidiaries or Affiliates to, honor the existing Company severance plans.
(d) For purposes under employee benefit plans of Parent, the Surviving Corporation and their respective Subsidiaries and Affiliates providing benefits to any Employee after the Effective Time (the “New Plans”), each Employee shall receive full credit for such Employee’s years of service with the Company and its Subsidiaries before the Effective Time (including predecessor or acquired entities or any other entities for which the Company or its Subsidiaries have given credit for prior service) for the determination of vacation or paid time off and for calculation of severance under the New Plans. At the Effective Time, each Employee shall be immediately eligible to participate, without any waiting time, in any Parent medical benefit plan and, with respect to non-union employees, retirement savings plan (401(k)) that is a New Plan to the extent such waiting time was satisfied under a similar or comparable Company Benefit Plan in which such Company Continuing Employee participated immediately before the Effective Time. While the Parent and Merger Sub currently intend to provide benefits to Employees may under New Plans which will be eligible based upon existing plans of Parent or its Affiliates, for similarly situated employees as in effect at the time such Employees join such New Plan, from and after the Continuation Period there is no obligation on the part of Parent, the Surviving Corporation or any of their respective Subsidiaries and Affiliates to participate provide any benefit plans.
(e) With respect to any accrued but unused vacation time to which any Employee is entitled pursuant to the vacation policy or individual agreement or other arrangement applicable to such Employee immediately prior to the Effective Time (the “Vacation Policy”), Parent shall, or shall cause the Surviving Corporation or any of their respective Subsidiaries or Affiliates to (i) allow such Employee to use such accrued vacation if used prior to December 31, 2013, and (ii) if any Employee’s employment terminates on or before December 31, 2013, pay the Employee, in cash, an amount equal to the value of the accrued and unused vacation time (whether accrued prior to or, subject to the then current policy, after the Effective TimeDate); (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, however, that an Employee may not carry over into calendar year 2013 more accrued and unused vacation days than the number of such service days such Employee had accrued up to and including the Closing Date, but such Employee would continue to accrue vacation time during calendar year 2013 in accordance with the then applicable vacation or paid time off policy for use during such calendar year. Notwithstanding the foregoing, in the event an Employee has accrued less than five (5) unused vacation days as of the Closing Date, the maximum number of vacation days that may be carried over by an Employee into 2013 shall not exceed five (5) days. As of January 1, 2014, all accrued and unused vacation time would be recognized subject to the extent that (A) then applicable vacation or paid time off policy and carry-over time not permitted under such recognition then applicable policy would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Planbe forfeited.
(cf) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing Nothing in this Section 5.076.7, whether express or implied, shall confer upon any other Person current or former employee of the Company, Parent, the Surviving Corporation or any of their respective Subsidiaries or Affiliates, any rights or remedies including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Section 5.076.7. Nothing contained herein, express or implied (i) shall be construed No provision of this Section 6.7 is intended to establishmodify, amend or modify create any employee benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability plan of the Company, Parent, Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent Corporation or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverAffiliates.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 2 contracts
Samples: Merger Agreement (LD Commodities Sugar Holdings LLC), Merger Agreement (Imperial Sugar Co /New/)
Employees; Benefit Plans. (a) During Subject to the period commencing at other terms and conditions set forth in this Agreement, as of the Effective Time Time, Buyer shall assume and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent honor and its Subsidiaries), Parent shall cause the Surviving Corporation appropriate Subsidiaries of Buyer to assume and each honor in accordance with their terms all Company Benefit Plans existing immediately prior to the execution of its Subsidiaries, as applicable, to provide this Agreement (together with the other items) which have been disclosed in Company Disclosure Schedule 3.15(a).
(b) Buyer shall take all reasonable action so that employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date become employees of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent Buyer or any of its Subsidiaries (collectively, "Parent Benefit Plans"the “Continuing Employees”) shall be entitled to participate (i) in which any Company Continuing Employees will participate effective as Buyer’s disability plans within sixty (60) days of the Effective TimeDate, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) in each other Buyer Benefit Plan of general applicability to the same extent as similarly-situated employees of Buyer and its Subsidiaries effective no later than January 1, 2018 (it being understood that inclusion of the employees of Company and its Subsidiaries in the Buyer Benefit Plans may occur at different times with respect to different plans and that any grants to any former employee of Company or its Subsidiaries under any equity compensation plan of Buyer shall be discretionary with Buyer). Notwithstanding the foregoing, to the extent that Continuing Employees are not entitled to participate in any Buyer Benefit Plan, such employees shall continue to participate in the corresponding employee benefit plan, program or arrangement of Company and its Subsidiaries so as to ensure that there is not a lapse in participation or coverage (but in no event to provide duplicate participation or coverage), as applicable, prior to participation in such Buyer Benefit Plan.
(c) As of the Effective Date, each Continuing Employee shall be entitled to full credit for each year of service with Company or the Company Subsidiary for purposes of determining eligibility for participation and vesting, but not benefit accrual purposesfor periods of prior service, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intoBuyer’s, or employment pending equity awards stock options or warrants to purchase equity based upon performance. as appropriate, in the Buyer Subsidiary’s, employee benefit plans, programs and policies; provided, however, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits with respect to the same period of service. Buyer shall use the original date of hire by Company or a Company Subsidiary in making these determinations. As of the Effective Date, Buyer and Buyer Bank shall assume the current accrual for all Continuing Employees of all accrued but unused vacation time to the extent such amounts were accrued and payable in the Ordinary Course of Business and consistent with past practice; provided that in no event shall Buyer and Buyer Bank assume the accrual of any paid personal days (Breferred to as “Choice days” in Company’s employee handbook) for any Continuing Employee. Following the Effective Date, each Continuing Employee shall accrue vacation time and paid time off consistent with Buyer and Buyer Bank’s standard practices. In the event any Continuing Employee is terminated after the Effective Date, Buyer and Buyer Bank shall pay out all accrued vacation time and paid time off, if any, of such service was not recognized under Continuing Employee in accordance with the corresponding Company Employee Planterms of Buyer and Buyer Bank’s standard practices.
(cd) This Section 5.07 The medical, dental, disability and life insurance plans, programs or policies, if any, that become applicable to Continuing Employees shall be binding upon and inure solely not contain any exclusion or limitation with respect to any pre-existing condition of any such employees or their dependents to the benefit extent that such conditions are covered under the applicable medical, dental, disability and life insurance plans, programs or policies of each Company or the applicable Company Subsidiary. Buyer shall honor any co-payment, out-of-pocket expenses and deductibles incurred by the Continuing Employees and their beneficiaries under a Company health plan during the portion of the parties plan year prior to this Agreementparticipation in a Buyer plan for purposes of satisfying any applicable deductible or out-of-pocket requirements under such Buyer health plans, upon substantiation in a form satisfactory to Buyer that such co-payment and/or deductible has been satisfied. Further, Buyer shall cause each plan to waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, unless such employee had not yet satisfied any similar limitation or requirement under an analogous Company Benefit Plan prior to the Effective Time.
(e) As of the Effective Time, Buyer shall honor the terms of all employment, consulting and change in control severance agreements, and nothing all deferred compensation agreements set forth in Company Disclosure Schedule 3.16(a), subject to regulatory limitations, and shall assume all obligations of Company or Company Bank thereunder.
(f) Nothing contained in this Section 5.075.12 or elsewhere in this Agreement, express or implied, shall confer upon any other Person present or former employee of Company or a Company Subsidiary any rights or remedies of any nature or kind whatsoever under or by reason of this Section 5.07. Agreement, including any right to employment or continued employment for any specified period, or level of compensation or benefits.
(g) Nothing contained hereinin this Section 5.12 or elsewhere in this Agreement, express or implied implied, shall (i) shall be construed limit the right of Buyer or any of its affiliates to establishterminate the employment or services of, or to reassign or otherwise alter the status of, any former employee of Company or a Company Subsidiary after the Closing, (ii) limit the ability of Buyer or any of its affiliates to terminate, amend or modify any benefit or compensation plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent that Buyer or any of their respective Affiliates its affiliates may assume, establish or maintain, including the Company Benefit Plans, or (iii) be construed as amending or modifying any Company Benefit Plan or Buyer Benefit Plan as in effect immediately prior 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 hereto acknowledge and agree that the terms set forth Effective Time.
(h) Nothing in this Section 5.07 5.12, or elsewhere in this Agreement, shall not create be deemed to make any right in employee, former employee, director, former director, or independent contractor of Company, any Company Employee Subsidiary or any other Person to Affiliate thereof (including any continued employment with the Surviving Corporation, Parent beneficiary or dependent thereof) a third party beneficiary of this Agreement or provide any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverrights relating thereto.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Merger Agreement (Enterprise Financial Services Corp)
Employees; Benefit Plans. (a) During From the period commencing at Closing Date through December 31, 2008 (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to will provide the current employees of the Company and its Subsidiaries as of the Effective Time who continue employment with the Surviving Corporation (“Employees”) with compensation and benefits that are substantially similar in the aggregate to those provided under the Company’s compensation and benefit plans, programs, policies, practices and arrangements (excluding equity-based programs) in effect at the Effective Time (it being understood that incentive programs will remain employed discretionary); provided, however, that nothing herein will prevent the amendment or termination of any specific plan, program or arrangement, require that the Surviving Corporation provide or permit investment in the securities of the Surviving Corporation or interfere with the Surviving Corporation’s right or obligation to make such changes as are necessary to comply with applicable Law. Notwithstanding anything to the contrary set forth herein, nothing herein shall preclude the Surviving Corporation from terminating the employment of any Employee for any reason for which the Company could have terminated such Employee prior to the Effective Time.
(b) The Surviving Corporation and its Affiliates will honor all Company Benefit Plans in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such plans, agreements or written arrangements; provided that, notwithstanding anything to the contrary in this Agreement, the Surviving Corporation and its Affiliates shall honor the terms of all retention and change in control agreements.
(c) For all purposes under the employee benefit plans of the Surviving Corporation and its Affiliates providing benefits to any Employees after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation“New Plans”), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by each Employee will be credited with his or her years of service with the Company and its Subsidiaries on Affiliates before the date of this Agreement.
Effective Time (b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent including predecessor or acquired entities or any of other entities for which the Company and its SubsidiariesAffiliates have given credit for prior service), excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectivelyto the same extent as such Employee was entitled, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of before the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if to credit for such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent the corresponding Company Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposesPlan, except for vacationpurposes of benefit accrual under defined benefit plans, if applicable) in for any Parent Benefit Plan in which such Company Continuing Employees may be eligible purpose where service credit for the applicable period is not provided to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intoparticipants generally, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized and to the extent that (A) such recognition credit would result in a duplication of accrual of benefits. In addition, and without limiting the generality of the foregoing (i) each Employee immediately will be eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or comparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”) and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Employee, the Surviving Corporation will cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Employee and his or (B) her covered dependents, to the extent any such service was not recognized exclusions or requirements were waived or were inapplicable under any similar or comparable Company Benefit Plan, and the Surviving Corporation will cause any eligible expenses incurred by such Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Employee’s participation in the corresponding Company New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(cd) This Section 5.07 5.6 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.075.6, express expressed or implied, shall is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.6. Without limiting the foregoing, no provision of this Section 5.6 will create any third party beneficiary rights in any current or former employee, director or consultant of the Company or any of its Subsidiaries in respect of continued employment (or resumed employment) or any other matter. Nothing contained hereinin this Section 5.6 is intended to amend any Company Benefit Plan, express or implied interfere with Parent’s or the Surviving Corporation’s right from and after the Effective Time to amend or terminate any Company Benefit Plan or the employment or provision of services by any director, employee, independent contractor or consultant.
(e) On and after the date hereof, no future offering periods will be commenced under the Company’s Employee Stock Purchase Plan (“ESPP”). All offering periods in progress on the date hereof shall cease, and the Company shall terminate the ESPP, on the earlier of (i) shall be construed the NASDAQ trading day immediately prior to establish, amend or modify any benefit plan, program, agreement or arrangement the Closing Date or (ii) September 30, 2008. On such date, all rights of each participating employee then outstanding shall alter be deemed to be automatically exercised and each participating employee will be credited with the number of Shares purchased for his or limit her account under the ability ESPP during such offering period. With respect to persons participating in the ESPP on the date on which the offering period ceases and the ESPP terminates (and who have not withdrawn from or otherwise ceased participation in such plan prior to such date), accumulated contributions will be applied on such date to the purchase of Shares in accordance with the ESPP’s terms (treating the date of termination as the last day of the Surviving Corporation, Parent or any of 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 themrelevant offering period). The parties hereto acknowledge and agree Company Board shall send written notice that the terms set forth Merger will result in this Section 5.07 shall the termination of the ESPP to all participating employees not create any right in any Company Employee or any other Person to any continued employment with later than ten Business Days after the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) date hereof. With respect to matters described in this Section 5.075.6(e), the Company will not send communicate with Purchaser prior to sending any written material notices or other written communication materials to Company Employees without the prior written consent of Parentits employees (and reasonably consider Purchaser’s comments with respect thereto).
Appears in 1 contract
Samples: Merger Agreement (Hireright Inc)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE twelve (“5”12) months from the Effective Time (or if earlier, the date of the employee's ’s termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "“Company Continuing Employees"”) with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "“employee benefit plan" ” as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (a) During All Company Employees who remain employed by Company or any of its Subsidiaries as of the period commencing at Effective Time shall be subject to Buyer Bank’s normal and customary employment procedures and practices, including customary background screening and evaluation procedures, and satisfactory employment performance. In addition, Company and Company Bank agree, upon Buyer’s reasonable request, to facilitate discussions between Buyer and Company Employees regarding employment, consulting, or other arrangements to be effective prior to or following the Merger. Any interaction between Buyer and Company Employees shall be coordinated by Company.
(b) Company Employees (other than those who are parties to an employment, change of control, or other type of agreement which provides for severance) as of the date of this Agreement who remain employed by Company or any of its Subsidiaries as of the Effective Time and ending on whose employment is terminated by Buyer (absent termination for cause as determined by the date which is FIVE (“5”employer) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately within one year after the Effective Time shall, subject to the execution by each Company Employee of a standard release in favor of Buyer and Buyer Bank, (collectively, i) receive severance pay in the "Company Continuing Employees"amount of two (2) with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that areweeks’ pay for every year of service with, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and or any of its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent and Buyer or any of its Subsidiaries, excluding both with a minimum of eight (8) weeks’ severance, and up to a maximum of twenty-six (26) weeks’ severance, in lieu of any retiree healthcare severance pay plans or programs maintained by Parent that may be in effect at Company 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 Employees will participate effective as of prior to the Effective Time, Parent shalland (ii) be offered outplacement assistance.
(c) Following the Closing Date, Buyer may choose to maintain any or shall cause the Surviving Corporation to, recognize all service of the other Company Continuing Benefit Plans in its sole discretion, subject to the next sentence of this Section 5.11(c). For any Company Benefit Plan terminated for which there is a comparable Buyer Benefit Plan of general applicability, Company Employees shall be entitled to participate in such Buyer Benefit Plan to the same extent as similarly-situated employees of Buyer or Buyer Bank (it being understood that inclusion of Company Employees in the Buyer Benefit Plans may occur, if at all, at different times with the Company or any of its Subsidiaries, as the case may be as if such service were with Parentrespect to different plans). With respect to a comparable Buyer Benefit Plan, for vesting purposes of determining eligibility to participate, vesting, entitlement to benefits and eligibility purposes vacation entitlement (but not for (i) purposes accrual of early retirement subsidies benefits under any Parent Buyer Benefit Plan that is Plan, including any post-retirement welfare benefit plan of Buyer), service by a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Company Employee shall be recognized to the same extent such service was recognized immediately prior to the Effective Time under a comparable Plan in which such Company Continuing Employees may be eligible to participate after Employee was a participant immediately before the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants if there is no such comparable employee benefit plan, to purchase equity based upon performance. the same extent such service was recognized under the Company 401(k) Plan immediately prior to the Effective Time to the extent applicable; provided, however, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Planbenefits.
(cd) This Section 5.07 If employees of Company or any of its Subsidiaries become eligible to participate in a medical, dental, or health plan of Buyer or Buyer Bank upon termination of a similar plan of Company or any of its Subsidiaries, Buyer shall use commercially reasonable efforts to cause each plan to (i) waive any preexisting condition limitations to the extent such conditions are covered under the applicable medical, health, or dental plans of Buyer or Buyer Bank, (ii) provide full credit under such plans for any deductible, co-payment, and out-of-pocket expenses incurred by the employees and their beneficiaries during the portion of the plan year prior to participation, and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous plan prior to the Effective Time for the plan year in which the Effective Time occurs.
(e) Buyer shall honor, and the Surviving Entity shall continue to be obligated to perform, in accordance with their terms, all vested benefit obligations to, and contractual rights of, current and former employees and directors of Company existing as of the Effective Time, as well as all employment, severance, deferred compensation, retirement or “change-in-control” agreements, plans, or policies of Company but only if such obligations, rights, agreements, plans or policies are set forth on the Company Disclosure Schedule. Buyer acknowledges that the consummation of the Merger will constitute a “change-in-control” of Company for purposes of any benefit plans, agreements, and arrangements of Company. Nothing in this Agreement shall limit the ability of Buyer or Buyer Bank to amend or terminate any of the Company Benefit Plans or Buyer Benefit Plans in accordance with their terms at any time after the Effective Time, subject to vested rights of employees and directors that may not be terminated pursuant to the terms of the Company Benefit Plans.
(f) In the event that Buyer or Buyer Bank terminates or lays off a sufficient number of employees following the Effective Date to trigger a notice requirement under the Worker Adjustment and Retraining Notification Act of 1988 or any similar applicable Law (“WARN”) with respect to (i) Company Employees employed during the 90-day period preceding the Effective Time, and (ii) Company Employees employed by Buyer or Buyer Bank after the Effective Time, Buyer shall be binding upon solely responsible for compliance with, and inure solely any liabilities incurred pursuant to, WARN. Company and Company Bank shall cooperate in providing information reasonably requested by Buyer that is necessary for Buyer to prepare and distribute notices that Buyer may desire to provide prior to the benefit of each of the parties to this Agreement, and nothing Effective Time under WARN.
(g) Nothing in this Section 5.075.11, express expressed or implied, shall is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.11. Without limiting the foregoing, no provision of this Section 5.11 will create any third party beneficiary rights in any current or former employee, director, or consultant of Company or its Subsidiaries in respect of continued employment (or resumed employment) or any other matter. Nothing contained herein, express or implied in this Section 5.11 is intended (i) shall be construed to establishamend any Company Benefit Plan or any Buyer Benefit Plan, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter interfere with Buyer’s or limit the ability of the Surviving Corporation, Parent or any of their respective Affiliates Entity’s right from and after the Closing Date to amend, modify amend or terminate any benefit plan, program, agreement Company Benefit Plan or arrangement at any time assumed, established, sponsored Buyer Benefit Plan or maintained (iii) interfere with Buyer’s or the Surviving Entity’s right from and after the Effective Time to terminate the employment or provision of services by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee director, employee, independent contractor, or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverconsultant.
(dh) With respect Buyer and Company have agreed to matters described in this Section 5.07, the actions regarding employees of Company will not send any written notices or other written communication materials to Bank and directors of Company Employees without the prior written consent of Parentas set forth on Buyer Disclosure Schedule 5.11(h).
Appears in 1 contract
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (In no event will Parent or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation take any action that would have the effect of requiring any notice or consent to be given or sought prior to the Closing pursuant to the federal Worker Adjustment and each Retraining Notification Act of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation)1988, and employee benefits that aresimilar state, local and foreign laws related to the plant closing, relocations, mass layoffs and employment losses in connection with the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided transactions contemplated by the Company and its Subsidiaries on the date of this Agreement.
(b) . With respect to any "“employee benefit plan" ” as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 employees of the Company who remain employed immediately after the Effective Time (collectively, the “Company Continuing Employees Employees”) will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Company Employee Plan.
(cb) This Section 5.07 6.06 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.076.06, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.076.06, nor deem any other Person to be a third party or other beneficiary of this Agreement. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 6.06 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(dc) With respect to matters described in this Section 5.076.06, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent, not to be unreasonably withheld or delayed.
(d) With respect to the Nanosphere, Inc. 401(k) Plan(the “401(k) Plan”), if at any time prior to the Closing a failure to comply with applicable Laws or the requirements of the 401(k) Plan is identified (whether by the Parent or its counsel, the Company or its counsel, or otherwise), then prior to the Closing, the Company shall act diligently and in good faith and use its commercially reasonable best efforts to (i) cause its plan advisors to prepare and submit a Voluntary Correction Program application to the IRS under the IRS’s correction program, and/or a Voluntary Fiduciary Correction Program application to the U.S. Department of Labor, as applicable, to correct the problem or failure, and (ii) shall make all contributions to and other adjustments with respect to amounts held in the 401(k) Plan required with respect to the correction. For purposes of clarification, so long as the Company has acted diligently and in good faith, and used its commercially reasonable best efforts, the inability of the Company to complete the preparation and submission of the Voluntary Correction Program Application and/or make the necessary contribution, due to insufficient time between the identification of the compliance problem or failure, and the Closing, shall not be deemed a breach of this Agreement by the Company, nor a failure of any condition precedent to Closing.
Appears in 1 contract
Samples: Merger Agreement (Luminex Corp)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause provide to the employees of the Surviving Corporation and its Subsidiaries benefit plans, programs and arrangements with benefits (other than equity-based awards) that are substantially similar in the aggregate to those provided to similarly situated employees of Parent as of the Closing Date. For purposes of determining eligibility to participate or levels of benefits or entitlement to benefits under Parent’s or the Surviving Corporation’s benefit plans, programs and arrangements (“Parent Benefit Plans”), each such employee shall be credited with his or her years of service with the Company or its SubsidiariesSubsidiaries prior to the Closing Date (except to the extent such service credit would result in a duplication of benefits for the same period of service) and any pre-existing condition, as applicableactively-at-work, or similar requirement under any such benefit plans, programs or arrangements shall be waived by the plan sponsor with respect to provide such employees to the employees extent allowed thereunder and under Applicable Law.
(b) The Company shall permit Parent and its Representatives to perform due diligence with respect to the 401(k) plan of the Company and its Subsidiaries who remain employed immediately after (the Effective Time “401(k) Plan”), including providing Parent with (collectivelyi) access to all benefit plan administrators, record keepers, custodians, agents and advisers, (ii) evidence of the 401(k) Plan’s tax-qualified status and timely IRS Form 5500 filings, (iii) such documentation that will allow Parent to determine the amount, if any, of fees, loads or other charges that will be triggered by the ceasing of new contributions to the 401(k) Plan or otherwise by virtue of the transactions contemplated hereby and (iv) such other documentation as Parent shall reasonably request with respect to the 401(k) Plan. If, and only if, requested in writing by Parent at least five (5) Business Days prior to the Closing Date, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation)shall, and employee benefits that areshall cause its Subsidiaries to, take all actions necessary or appropriate to terminate the 401(k) Plan not later than the day prior to the Closing Date and, in connection therewith, the aggregateCompany shall, no less favorable not later than the base salary, target bonus opportunities day prior to the Closing Date:
(excluding equity-based compensation)i) (1) amend the 401(k) Plan to fully vest all accounts of all participants in the 401(k) Plan and to provide for the distribution of all such accounts, and employee benefits provided by (2) amend the Company 401(k) Plan to bring it into compliance with current Applicable Law (the form and its Subsidiaries on substance of which amendments shall be subject to the date prior review of this AgreementParent); and
(ii) deliver to Parent a duly executed plan amendment and resolutions of the Company’s board of directors reflecting the termination of the 401(k) Plan and such related amendments to the 401(k) Plan (the form and substance of which documents shall be subject to the prior review of Parent).
(bc) With respect to Nothing in this Section 6.5 shall (i) create any "employee benefit plan" as defined third-party beneficiary or other rights in Section 3(3) any Employee or other service provider of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case including rights in respect of any benefits that may be as if such service were with Parentprovided, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies directly or indirectly, under any Company Benefit Plan or Parent Benefit Plan that is a defined benefit pension plan or Plan, (ii) benefit accrual purposesbe construed as an amendment, except for vacation, if applicable) in waiver or creation of or limitation on the ability to amend or terminate any Company Benefit Plan or Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; Plan, or (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intobe interpreted as requiring the Company, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any Affiliate of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create foregoing to continue to employ any right in any Company particular Employee or any other Person to any continued employment with service provider of the Surviving Corporation, Parent Company or any of their respective its Subsidiaries or compensation or benefits for any specified period of any nature or kind whatsoevertime.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Merger Agreement (LKQ Corp)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained plan sponsored, maintained, contributed to, or otherwise made available, by Parent Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries Affiliates to their respective employees (collectively, "Parent “Buyer Benefit Plans"”) in which any employee who remains employed by a Subsidiary of the Company immediately after the Closing (“Company Continuing Employees Employees”) will be eligible to participate effective as of after the Effective TimeClosing, Parent Buyer shall, or and shall cause the Surviving Corporation its Subsidiaries or Affiliates, as applicable, to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be be, as if such service were with ParentBuyer, for vesting and eligibility all purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective TimeClosing Date; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits.
(b) Buyer shall, and shall cause its Subsidiaries or Affiliates, as applicable, to cause to be waived any waiting periods, evidence of insurability requirements, or pre-existing condition limitations and similar limitations under Buyer Benefit Plans to the extent waived or satisfied by a Company Continuing Employee under any Benefit Plan. Buyer shall, and shall cause the Company to, honor all periods of accrued but unused vacation leave, sick leave, personal days, holidays and other similar periods of leave (Bsuch leave, the “Accrued Leave”) of Company Continuing Employees as of the Closing Date to the extent reflected on the Closing Balance Sheet, but only to the extent that such service was not recognized Accrued Leave is less than the maximum amount of Accrued Leave permitted to be accrued under the corresponding applicable Buyer Benefit Plan in which such Company Employee PlanContinuing Employees are eligible to participate.
(c) The Acquired Companies shall, prior to the Closing Date, take such corporate (or similar organizational) action as is necessary to cause the Bettera Brands, LLC 401(k) Profit Sharing Plan (the “Bettera 401(k) Plan”) to be terminated effective as of immediately prior to the Closing Date, subject to the consummation of the transactions contemplated hereby. In connection with the termination of the Bettera 401(k) Plan, the Acquired Companies shall provide, or cause to be provided that, (i) all benefit accruals under the Bettera 401(k) Plan will be frozen and no new participants will be admitted to the Bettera 401(k) Plan on or after the Bettera 401(k) Plan termination date, (ii) any contribution due to the Bettera 401(k) Plan (including any participant elective contribution and any matching contribution related thereto) in respect of any period prior to, but not yet paid as of, the Bettera 401(k) Plan termination date will be contributed by the Acquired Companies as soon as administratively feasible following the Bettera 401(k) Plan termination date, and (iii) all of the Bettera 401(k) Plan participant accounts will be one hundred percent (100%) vested effective on the Bettera 401(k) Plan termination date. The Acquired Companies shall provide to Buyer, prior to the Closing Date, written evidence of the adoption by the applicable authorized governing body of the Bettera 401(k) Plan of resolutions authorizing the termination of the Bettera 401(k) Plan (with the form and substance of such resolutions to be subject to Buyer’s reasonable review and comment) no later than three (3) Business Days prior to the Closing Date. In addition, in connection with the termination of the Bettera 401(k) Plan, Buyer or one of its Subsidiaries or its Affiliates, as applicable, shall take all steps reasonably necessary to (i) permit each Company Continuing Employee who was participating in the Bettera 401(k) Plan immediately prior to the Closing to begin participating in a plan maintained by Buyer or one of its Subsidiaries or Affiliates that includes a cash or deferred arrangement qualified under Section 401(k) of the Code (the “Buyer 401(k) Plan”), subject to the eligibility requirements applicable to similarly situated employees of Buyer and its Subsidiaries and Affiliates as of the Closing and (ii) cause the Buyer 401(k) Plan to permit and accept rollover contributions of the account balances of any Company Continuing Employee who participated in the Bettera 401(k) Plan.
(d) Bettera Management Holdings, LLC (“Management Holdco”) and Highlander Partners Candy, LLC, including in its capacity as manager of Management Holdco (in such capacity “HPC”) pursuant to the Limited Liability Company Agreement of Management Holdco, dated as of December 31, 2019 (the “Management Holdco LLCA”) shall effect the distribution of the portion of the Purchase Price payable to Management Holdco to the holders of the outstanding “Series B Incentive Units” of Management Holdco (as defined in the Management Holdco LLCA) in accordance with the terms of the Management Holdco LLCA. Each of Management Holdco and HPC hereby acknowledges and agrees that, immediately following the Closing, neither the Company nor its Affiliates (including Buyer) shall have any liability or obligation with respect to the Series B Incentive Units or any Equity Interests of Management Holdco other than Buyer’s obligation to pay Management Holdco the applicable portion of the Purchase Price owed by Buyer pursuant to ARTICLE II of this Agreement.
(e) The Acquired Companies shall, as promptly as practicable following the date hereof, but, in any event, prior to the Closing Date, use commercially reasonable efforts to correct any failure to accurately report and distribute Forms 1094-C and 1095-C in accordance with the requirements of Sections 6055 and 6056 of the Code and the regulations and related guidance promulgated thereunder. The Company shall provide to Buyer a record of its written actions to correct all such failures in accordance with applicable guidance published or released by the Internal Revenue Service.
(f) The Acquired Companies shall, as promptly as practicable following the date hereof, but, in any event, prior to the Closing Date, use commercially reasonable efforts to correct the Bettera 401(k) Plan for any (i) ADP nondiscrimination testing failures and (ii) late remittance of elective deferral contributions. The Company shall provide to Buyer a record of its written actions to correct all such failures in accordance with applicable guidance published or released by the Internal Revenue Service and Department of Labor.
(g) This Section 5.07 6.02 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.076.02, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.076.02. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 6.02 shall not create any right in any Company Employee employee or any other Person to any continued employment with the Surviving CorporationCompany, Parent Buyer or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Catalent, Inc.)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time Closing and ending on the date which is FIVE (“5”) 12 months from the Effective Time Closing (or or, if earlier, the date of the employee's ’s termination of employment with Parent and its Subsidiariesthe Company), Parent Purchaser shall provide (or shall cause the Surviving Corporation and each of its SubsidiariesCompany or their Affiliate to provide, as applicable), to provide the employees of each employee who is employed by the Company and its Subsidiaries immediately prior to the Closing who remain remains employed immediately after the Effective Time Closing (collectively, the "“Company Continuing Employees"Employee”) with compensation and benefits (including base salarysalary or hourly wages, target bonus opportunities (excluding equity-based compensation), retirement and employee benefits welfare benefits, and severance benefits) that are, are substantially comparable in the aggregate, no less favorable than aggregate to the base salary, target bonus opportunities (excluding equity-based compensation), compensation and employee benefits provided by Purchaser to its similarly-situated employees; provided that, notwithstanding the foregoing, Purchaser shall not materially change the aggregate compensation and benefits of any such Company and its Subsidiaries on Continuing Employee during the date of this Agreement90-day period immediately following Closing. Each Company Continuing Employee shall receive credit for vacation accrued prior to the Closing.
(b) In addition to the compensation and benefits provided pursuant to Section 8.10(a), Purchaser shall offer to enter into an agreement with each Company Continuing Employee who is a Key Employee which shall provide such Key Employee with severance benefits equal to such Key Employee’s annual base salary upon a termination of employment by Purchaser without cause.
(c) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent Purchaser or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent “Purchaser Benefit Plans"”) in which any Company Continuing Employees will participate effective as of or after the Effective TimeClosing, Parent shallPurchaser shall use its reasonable best efforts to, or shall to cause the Surviving Corporation Company to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with ParentPurchaser, for vesting and eligibility purposes in any Purchaser Benefit Plan (but not for (i) benefit accrual purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (iiplan) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Timedate hereof, to the extent permitted by the terms of the applicable Purchaser Benefit Plan and applicable Law; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Benefit Plan. To the extent that a Company Continuing Employee participating in the defined contribution 401(k) Plan prior to the Closing elects a direct transfer or rollover of assets, including an outstanding loan of such Company Continuing Employee under such defined contribution 401(k) Plan, Purchaser agrees to use its reasonable best efforts to cause the applicable Purchaser Benefit Plan to accept a direct transfer or rollover of assets from the defined contribution 401(k) Plan in which the Company Continuing Employees participated prior to the Closing, including, but not limited to, outstanding loans under such defined contribution 401(k) Plan.
(cd) Purchaser shall assume responsibility for providing COBRA notice and coverage to any M&A qualified beneficiaries (within the meaning of Treas. Reg. Section 54.4980B-9, Q/A-4) who experience a qualifying event after the Closing. Purchaser shall assume responsibility for providing any remaining period of COBRA coverage for any qualified beneficiaries who experience a qualifying event prior as of or to the Closing and who were formerly employed by the Company.
(e) This Section 5.07 8.10 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.078.10, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.078.10. Nothing contained herein, express or implied (i) implied, shall be construed (x) to establish, amend or modify any benefit plan, program, agreement or arrangement or (iiy) shall alter or to limit the ability right of Purchaser, the Surviving CorporationCompany, Parent or any of their respective Affiliates to amend, terminate or otherwise modify or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of themarrangement. The parties hereto acknowledge and agree that (i) the terms set forth in this Section 5.07 8.10 shall not create any third-party beneficiary or other right in any Company Employee employee or any other Person to any continued employment for any period of time following the Closing with the Surviving CorporationCompany, Parent Purchaser or any of their respective Subsidiaries Affiliates or to compensation or benefits of any nature or kind whatsoever.
, and (dii) With respect to matters described nothing in this Section 5.078.10 shall prohibit Purchaser, the Company will not send or any written notices or other written communication materials of their respective Affiliates from terminating the employment of any employee at any time following the Closing, subject to Company Employees without the prior written consent any obligations of ParentPurchaser to provide severance benefits pursuant to this Section 8.10.
Appears in 1 contract
Samples: Units Purchase Agreement (Willbros Group, Inc.\NEW\)
Employees; Benefit Plans. 5.3.1 Set forth on Schedule 5.13 is the following: (ai) During the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date a listing of the employee's termination names, titles and dates of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each hire of its Subsidiaries, as applicable, to provide all of the employees of the Company Debtors who are not governed by any collective bargaining agreement, (ii) a list of collective bargaining agreements entered into by the Debtors and its Subsidiaries who remain employed immediately after (iii) a list of all "employee benefit plans" (within the Effective Time meaning of Section 3(3) of ERISA), whether or not subject to ERISA, in which current or former employees of the Business participate (collectively, the "Company Continuing EmployeesBenefit Plans") with base salary). The annual salaries and bonuses of such employees of the Debtors and a copy of such collective bargaining arrangements and employee benefit plans have been made available to the Buyer on or prior to the date hereof.
5.3.2 Except as set forth on Schedule 5.13, target bonus opportunities (excluding equity-based compensation)none of the Benefit Plans is, and employee benefits that areno Debtor has ever maintained or had an obligation to contribute to, or incurred any other obligation with respect to (i) a plan subject to Title IV of ERISA or Section 412 of the Code or Title I, Subtitle B, Part 3 of ERISA, (ii) a Multiemployer Plan or (iii) a funded welfare benefit plan, as defined in Section 419 of the Code. None of the Debtors has any agreement or commitment to create any additional Benefit Plan, or to modify or change any existing Benefit Plan.
5.3.3 The Debtors have performed and complied with all of their obligations under and with respect to the Benefit Plans in all material respects and each of the Benefit Plans has, at all times, in form, operation and administration complied in all material respects with its terms, and, where applicable, the aggregaterequirements of the Code, ERISA and all other applicable Laws. Each Benefit Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code has been determined by the Internal Revenue Services to be so qualified, nothing has occurred which could reasonably be expected to adversely affect such qualified status, and, to the extent required by applicable law, each such Benefit Plan was timely amended and filed with the Internal Revenue Service with respect to the legislation referred to as GUST.
5.3.4 There are no less favorable than unpaid contributions due prior to the base salarydate hereof with respect to any Benefit Plan that are required to have been made under its terms and provisions, target bonus opportunities (excluding equity-based compensation)any related insurance contract or any applicable Law. There are no trusts or similar funding vehicles, reserve assets, surpluses or prepaid premiums with respect to any Benefit Plan that is a welfare plan.
5.3.5 No Debtor nor any ERISA Affiliate thereof has incurred any liability or taken any action, and employee benefits provided by the Company and its Subsidiaries on Debtors have no knowledge of any action or event, that could cause any Debtor or any ERISA Affiliate thereof to incur any liability (i) under Section 412 of the date of this Agreement.
(b) With Code or Title IV or ERISA with respect to any "employee benefit single-employer plan," as defined in Section 3(34001(a)(15) of ERISA maintained by Parent or any of its SubsidiariesERISA, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposeson account of a partial or complete withdrawal, except for vacationas defined in Section 4203 and 4205 of ERISA, if applicablerespectively, with respect to any Multiemployer Plan or on account of unpaid contributions to any Multiemployer Plan.
5.3.6 There are no Controversies pending, or to the Debtors' knowledge, threatened that involve any employees employed in connection with the Business. Each Debtor has complied, and is in substantial compliance, in all material respects with all Laws relating to the employment of labor, including, without limitation, any provision thereof relating any provision thereof relating to wages, hours, collective bargaining, employee health, immigration, layoffs, safety and welfare, and the payment of social security and similar taxes. There are presently no unfair labor practice complaints or other material labor controversies pending against any Debtor, union representation questions involving persons employed by the Debtors, or, to the Debtors' knowledge, current activities or proceedings of any labor union (or representative thereof) to organize any unorganized employees of any Debtor or any strikes, slowdowns, work stoppages, lockouts, or threats thereof, by or with respect to any employees of any Debtor. Absence of Certain Changes. Except as set forth in Schedule 5.14, since the date of the Current Balance Sheet: (i) there has been no Material Adverse Change; (ii) there has been no damage, destruction or loss to any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after material asset or property, tangible or intangible, of the Effective TimeDebtors, ordinary wear and tear excepted; (iii) Continuing Company shall honor all consulting other than in connection with the proposed sale of the Acquired Assets and the Acquired Product Lines, the Business has been conducted only in the Ordinary Course of Business; (iv) no Debtor has increased the compensation of any officer or advisory agreement previously entered intogranted any general salary or benefits increase to their employees other than in the Ordinary Course of Business; (v) the post-Petition liabilities have been paid in the Ordinary Course of Business; and (vi) there has been no material change by the Debtors, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized in relation to the extent that (A) such recognition would result Acquired Product Lines or in a duplication of benefits accounting principles, practices or (B) such service was not recognized under the corresponding Company Employee Planmethods.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (a) During Buyer shall, or shall cause an Affiliate of Buyer to, offer employment effective on the CTP Closing Date to all actively employed Employees listed on Schedule 3.13(a) of the Disclosure Schedule not governed by the Collective Bargaining Agreement (including Employees who are absent due to vacation, family leave, short-term disability or other approved leave of absence, but excluding Employees who are absent due to long-term disability); provided, however, that any offer of employment for an individual not actively at work as of the CTP Closing Date will only be effective on such individual’s return to active employment within 180 days following the CTP Closing Date. Buyer may, or may cause an Affiliate of Buyer to, offer employment effective on the CTP Closing Date to those Employees governed by the Collective Bargaining Agreement as it may determine in its discretion. The Employees who accept such employment shall commence employment with Buyer or an Affiliate of Buyer immediately following the CTP Closing, and are referred to herein as “Transferred Employees”. Any such offers of employment shall be contingent upon each Employee satisfying Buyer’s customary candidate screening procedures and remaining employed by CTP until terminated by CTP immediately prior to the CTP Closing. Employees who do not accept Buyer’s offer of employment or to whom no such offer of employment is made shall not be Transferred Employees, and, except as described below, Buyer shall have no liability for any claims with respect to such Employee’s employment and termination of employment by CTP. Buyer shall be responsible for, shall reimburse CTP for, and shall indemnify and hold the members of the Company Group harmless against and in respect of, any severance or other amounts required to be paid (based on Benefit Plans in effect as of the date of this Agreement) to Employees governed by the Collective Bargaining Agreement who do not receive an offer of employment from Buyer or an Affiliate of Buyer and are terminated by CTP as of the CTP Closing Date. Buyer will, to the extent practicable, keep CTP apprised of all communications and negotiations that Buyer has involving United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union or its affiliate, Local Union No. 662 (the “Union”). Buyer will take all commercially reasonable actions to ensure that its communications and negotiations with the Union do not materially and adversely impact the operation of the Transportation Products Business. The parties will work together in good faith to address in a commercially reasonable manner any issues raised by the Union and/or its members that are based on Buyer’s failure to assume the Collective Bargaining Agreement and Buyer will pay the reasonable costs and expenses incurred by Buyer and CTP in connection with defending against any charges or actions brought by the Union against CTP that are a result of Buyer’s failure to assume the Collective Bargaining Agreement.
(b) The parties acknowledge and agree that Buyer expressly disclaims any obligation to assume the Collective Bargaining Agreement and that neither (i) the failure of Buyer and the union to negotiate a new or amended Collective Bargaining Agreement nor (ii) Buyer’s failure to hire any Employee governed by the Collective Bargaining Agreement shall (A) be taken into account in determining whether a Material Adverse Effect for purposes of Section 6.02(f) has occurred or (B) be the basis of any claim for indemnity by Buyer under Section 7.02 of the MTA. With respect to all Transferred Employees who are not governed by the Collective Bargaining Agreement, during the period commencing at the Effective Time CTP Closing and ending on December 31, 2014, Buyer shall provide each such Transferred Employee with: (w) base salary or hourly wages which are no less favorable in the date which is FIVE aggregate than the base salary or hourly wages provided by CTP immediately prior to the CTP Closing; (“5”x) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that areif any, in the aggregate, which are no less favorable in the aggregate than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits ) provided by CTP immediately prior to the Company CTP Closing; (y) retirement and its Subsidiaries welfare benefits that are no less favorable in the aggregate than those provided by CTP immediately prior to the CTP Closing, excluding benefits under or related to defined benefit pension plans, supplemental executive retirement plans, non-qualified deferred compensation, retiree medical and life insurance; and (z) severance benefits that are no less favorable in the aggregate than the practice, plan or policy in effect for such Transferred Employee immediately prior to the CTP Closing. Buyer shall recognize the past service of the Transferred Employees with CTP for any required notice of termination, termination or severance payment (contractual, statutory or common law). Buyer shall pay to all Transferred Employees eligible therefor any and all bonus and incentive compensation amounts (including all amounts determined under the revised bonus incentive set forth in the CTP Executive Incentive Agreement) accrued on the date balance sheet of this CTP and included in Net Working Capital as of the Closing Date. Buyer shall also pay to any Transferred Employee covered by the CTP Executive Incentive Agreement any amount of severance payment such Transferred Employee may be entitled to under the CTP Executive Incentive Agreement.
(bc) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent “Buyer Benefit Plans"”) in which any Company Continuing Transferred Employees will participate effective as of the Effective TimeCTP Closing, Parent shall, or Buyer shall cause the Surviving Corporation to, recognize all service of the Company Continuing Transferred Employees with the Company or any of its SubsidiariesCTP, as the case may be be, as if such service were with ParentBuyer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyer Benefit Plan in which such Company Continuing Transferred Employees may be eligible to participate after the Effective TimeCTP Closing; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (Ai) such recognition would result in a duplication of benefits benefits, or (Bii) such service was not recognized under the corresponding Benefit Plan. In addition, at such time as any Transferred Employees are transitioned over to benefits plans of Buyer or its Subsidiaries, Buyer or the relevant Subsidiary shall waive all limitations as to pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Transferred Employees (except that, for insured benefit plans, any such waiver must be permitted under the terms of the insurance policy). The Transferred Employees shall cease to accrue benefits under any CTP Benefit Plans effective as of the CTP Closing and, except as expressly provided in this Section 5.03, Buyer will not assume, and the Company Employee Planshall retain and satisfy, all liabilities associated with the CTP Benefit Plans.
(cd) As of the Closing, vesting will be accelerated for account balances with respect to all Transferred Employees in the Carlisle Corporation Employee Incentive Savings Plan (As Amended and Restated Effective as of January 1, 2010) and the Carlisle Companies Union Plan (As Amended and Restated Effective as of January 1, 2010) (the “Company 401(k) Plans”) will be accelerated.
(e) As soon as practicable after the CTP Closing, Buyer shall cooperate with the Company to implement a direct trustee-to-trustee transfer of the account balances of all Transferred Employees under the Company 401(k) Plans as described in Schedule A to the Transition Services Agreement.
(f) The Company shall remain liable for all costs and expenses related to claims under the health plans in effect for all Transferred Employees as of the CTP Closing Date to the extent such claims are incurred prior to the CTP Closing Date. For purposes of this Section 5.03(f) a claim is incurred as of the date the services or supplies giving rise to a claim for benefits are provided.
(g) CTP shall be responsible for, and shall indemnify and hold Buyer harmless against and in respect of, any notification obligations or Losses that arise under WARN on account of notice obligations or employment terminations that arise at any time through and including the CTP Closing Date.
(h) Buyer (or an Affiliate) shall provide claims administration on behalf of, and at no cost to, the Company with respect to all workers’ compensation claims arising from events occurring prior to the CTP Closing Date, which claims are being retained by the Company hereunder, from the CTP Closing Date until all such claims are finally resolved; provided, however, that Buyer (or any Affiliate) shall not settle any such claims without prior authorization from a Representative of the Company in accordance with procedures established by the Company from time to time.
(i) This Section 5.07 5.03 shall be binding upon and inure solely to the benefit of each of the parties to this AgreementAgreement and the other members of the Company Group, and nothing in this Section 5.075.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.03. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 5.03 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent CTP or Buyer or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (a) During the period commencing at beginning on the Effective Time Closing Date and ending on the date which is FIVE (“5”) months from first anniversary of the Effective Time Closing Date, Buyer shall (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and Company to) (i) provide each of its Subsidiariesemployee who remains employed immediately after the Closing, as applicable, to provide the which shall be substantially all employees of the Company and its Subsidiaries who remain employed immediately after (subject to Buyer’s right to terminate any such employee at any time under clause (ii) below) (the Effective Time (collectively, the "Company “Continuing Employees"”): (A) with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, salary or hourly wages which are no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits salary or hourly wages provided by the Company immediately prior to the Closing; (B) target annual cash incentive compensation opportunities (which shall not include any special, one-time cash incentive opportunities, such as retention bonuses), which are no less than the target annual cash incentive compensation opportunities provided by the Company immediately prior to the Closing; and its Subsidiaries on (C) employee benefits that are no less favorable in the date of this Agreement.
(b) With respect to any "aggregate than the employee benefit plan" as defined in Section 3(3) of ERISA benefits maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 the Company for the Continuing Employees will participate effective as of the Effective TimeSigning Date; and (ii) for those employees terminated without cause at any time during the period beginning on the Closing Date and ending on the first anniversary of the Closing Date, Parent shallpay the severance amounts set forth on Section 5.05(a)(i) of the Disclosure Schedules. Buyer further agrees that, from and after the Closing Date, Buyer shall (or shall cause the Surviving Corporation Company to, recognize all service of ) grant the Company Continuing Employees with credit for any service with the Company and/or its ERISA Affiliates earned prior to the Closing Date (A) for eligibility and vesting purposes and (B) for purposes of vacation accrual and severance benefit determinations under any benefit or compensation plan, program, agreement or arrangement that may be established or maintained by Buyer or the Company or any of its Subsidiaries, as subsidiaries after the case may be as if such service were with Parent, for vesting and eligibility purposes Closing (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposesthe “New Plans”), except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits. For the avoidance of doubt, in respect of any New Plan that provides for any “defined benefit” accruals and calculations, the service credit shall apply with respect to eligibility and not for purposes of benefit accrual calculations. In addition, Buyer hereby agrees that Buyer shall (or shall cause the Company to) take commercially reasonable steps to (B1) cause to be waived all actively-at-work requirements and similar limitations, eligibility waiting periods and evidence of insurability requirements under any New Plans to the extent waived or satisfied by an employee under any Benefit Plan as of the Closing Date and (2) cause any covered expenses incurred on or before the Closing Date during 2016 by any employee (or covered dependent thereof) of the Company to be taken into account for purposes of satisfying applicable deductible, coinsurance and maximum out-of-pocket provisions after the Closing Date under any applicable New Plan with respect to the 2016 calendar year. Nothing contained herein, express or implied, is intended to confer upon any employee of the Company any right to continued employment for any period or constitute an amendment to, or any other modification of, any New Plan or Benefit Plan. For the avoidance of doubt, Buyer further agrees that it shall honor, and shall cause the Company to honor, all accrued but unused vacation, paid time off, and sick time for each Continuing Employee to the extent such service was not recognized under unused vacation, paid time off, or sick time is reflected on Section 5.05(a)(ii) of the corresponding Disclosure Schedules.
(b) Sellers shall cause the Company to take all action necessary to terminate the Company’s 401(k) Retirement Savings Plan effective at least one (1) day prior to the Closing Date. In connection with such termination, the Company and Buyer agree to use commercially reasonable efforts to: (i) amend their respective 401(k) plans to facilitate the distribution and rollover of the Continuing Employees’ 401(k) plan account balances to a 401(k) plan sponsored by Buyer; (ii) permit the rollover of any outstanding Continuing Employee Planloans to a 401(k) plan sponsored by Buyer; and (iii) take any additional action reasonably required to permit each Continuing Employee who has received an eligible rollover distribution to roll such eligible rollover distribution into a 401(k) plan sponsored by Buyer as promptly as reasonably practicable.
(c) This Section 5.07 5.05 shall be binding upon and inure solely to the benefit of each of the parties to this AgreementParties, and nothing in this Section 5.075.05, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.05. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit planBenefit Plan, or other program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto Parties acknowledge and agree that the terms set forth in this Section 5.07 5.05 shall not create any right in any employee of the Company Employee or in any other Person to any continued employment or service with the Surviving CorporationCompany, Parent Buyer or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (a) During the period commencing at Following the Effective Time and ending Time, FBMS shall maintain or cause to be maintained employee benefit plans for the benefit of employees who are full time employees of SSNF on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent Closing Date and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the who become employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time FBMS (collectively, the "Company Continuing Covered Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and that provide employee benefits that arewhich, in the aggregate, no less favorable than are substantially comparable to the base salary, target bonus opportunities (excluding equityemployee benefits and cash-based compensation)compensation opportunities that are made available on a uniform and non-discriminatory basis to similarly situated employees of FBMS; provided, however, that in no event shall any Covered Employee be eligible to participate in any closed or frozen plan of FBMS. FBMS shall give the Covered Employees full credit for their prior service with SSNF (i) for purposes of eligibility (including initial participation and eligibility for current benefits) and vesting under any qualified or non-qualified employee benefits provided benefit plan maintained by the Company FBMS and its Subsidiaries on the date of this Agreementin which Covered Employees may be eligible to participate and (ii) for all purposes under any welfare benefit plans, vacation plans, severance plans and similar arrangements maintained by FBMS.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) plan of ERISA maintained by Parent FBMS that is a health, dental, vision or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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") other welfare plan in which any Company Continuing Employees Covered Employee is eligible to participate, for the plan year in which such Covered Employee is first eligible to participate, FBMS shall use its commercially reasonable efforts to (i) cause any pre-existing condition limitations, eligibility waiting periods or evidence of insurability requirements under such FBMS plan to be waived with respect to such Covered Employee and his or her covered dependents to the extent such condition was or would have been covered under the SSNF Benefit Plan in which such Covered Employee participated immediately prior to the Effective Time, and (ii) recognize any health, dental, vision or other welfare expenses incurred by such Covered Employee and his or her covered dependents in the year that includes the Closing Date (or, if later, the year in which such Covered Employee is first eligible to participate) for purposes of any applicable copayment, deductibles and annual out-of-pocket expense requirements under any such health, dental, vision or other welfare plan..
(c) Following the Effective Time, The First shall credit each Covered Employee with an amount of paid time off equal to such Covered Employee's accrued but unused paid time off at Sunshine Bank ("Carryover PTO"), provided that The First shall divide such Carryover PTO between sick leave and vacation leave at The First's discretion. In addition, with respect to those employees hired before January 1, 1993, SSNF shall cause Sunshine Bank to pay to each such employee immediately prior to the Effective Time a lump sum cash amount equal to 25% of the value of each such employee's respective accrued but unused extended leave bank time (less applicable tax withholding).
(d) SSNF shall cause Sunshine Bank to take all necessary actions to terminate the Sunshine Bank 401(k) Plan, effective as the date immediately preceding the Effective Time of the Merger, subject to the occurrence of the Effective Time. SSNF shall provide FBMS with evidence that the Sunshine Bank 401(k) plan has been terminated and provide copies of the appropriate resolutions terminating the plan (the form and substance of which shall be subject to review and approval by FBMS, which will participate effective not be unreasonably withheld) not later than the day immediately preceding the Effective Time. The accounts of all participants and beneficiaries in the Sunshine Bank 401(k) Plan shall become fully vested upon termination of such plan.
(e) The SSNF ESOP shall be terminated as of the date immediately preceding the Effective Time (the "ESOP Termination Date"), subject to the occurrence of the Effective Time. SSNF or Sunshine Bank shall make a pro rata contribution to the SSNF ESOP as of the ESOP Termination Date, with the amount of such pro rata contribution to be based upon the regularly scheduled contribution for the 2018 plan year and the number of full months from January 1, 2018 through the Effective Time. SSNF shall provide FBMS with evidence that the SSNF ESOP has been terminated and provide copies of the appropriate resolutions terminating the plan (the form and substance of which shall be subject to review and approval by FBMS, which will not be unreasonably withheld) not later than the day immediately preceding the Effective Time. The accounts of all participants and beneficiaries in the SSNF ESOP shall become fully vested upon termination of such plan. The Merger Consideration received with respect to the unallocated SSNF Common Stock held by the SSNF ESOP shall first be used to repay all then outstanding indebtedness under the outstanding loan to the SSNF ESOP, and the Merger Consideration remaining in the ESOP suspense account after repayment of the outstanding ESOP loan shall be allocated in accordance with the terms of the SSNF ESOP. SSNF shall, prior to the Effective Time, submit a request to the IRS for a favorable determination letter as to the SSNF ESOP's tax-qualified status under Code Section 401(a) on termination. The parties shall use their respective commercially reasonable best efforts to obtain such favorable determination letter. As soon as practicable following the later of the Effective Time or the receipt of a favorable determination letter from the IRS regarding the qualified status of the SSNF ESOP upon its termination, the account balances in the SSNF ESOP shall be either distributed to participants and beneficiaries or rolled over to an eligible tax-qualified retirement plan or individual retirement account as a participant or beneficiary may direct, in accordance with the requirements of the Code and ERISA; provided however, that nothing contained herein shall delay the distribution or transfer of account balances in the SSNF ESOP in the ordinary course for reasons other than the termination of such plan.
(f) Prior to the Effective Time, SSNF shall take, and shall cause its Subsidiaries to take, all actions requested by FBMS that may be necessary or appropriate to, conditioned on the occurrence of the Effective Time, (i) cause one or more SSNF Benefits Plans not covered above to terminate as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service as of the Company Continuing Employees with date immediately preceding the Company or any of its SubsidiariesEffective Time, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) cause benefit accrual purposes, except for vacation, if applicable) in accruals and entitlements under any Parent SSNF Benefit Plan in which such Company Continuing Employees may be eligible to participate cease as of the Effective Time, or as of the date immediately preceding the Effective Time, (iii) cause the continuation on and after the Effective Time; (iii) Continuing Company shall honor all consulting Time of any contract, arrangement or advisory agreement previously entered intoinsurance policy relating to any SSNF Benefit Plan for such period as may be requested by FBMS, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to (iv) facilitate the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies merger of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify SSNF Benefit Plan into any employee benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of their respective Affiliates to amend, modify or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or plan maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.by
Appears in 1 contract
Employees; Benefit Plans. (a) During the period commencing at Prior to the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlierTime, the date Parent shall take all reasonable action so that employees of the employee's termination Company and its Subsidiaries who become employees of employment with Parent and its Subsidiaries)Subsidiaries (the “Transferred Employees”) shall be entitled to participate, effective as soon as administratively practicable following the Effective Time, in each Parent shall cause Benefit Plan of general applicability to the Surviving Corporation same extent as similarly-situated employees of Parent and each its Subsidiaries (it being understood that inclusion of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), Parent Benefit Plans may occur at different times with respect to different plans and that any grants to any former employee benefits provided by of the Company and or its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and under any equity compensation arrangements maintained by plan of Parent or shall be discretionary with Parent). To the extent that Transferred Employees are not entitled to participate in any of its Subsidiaries (collectively, "Parent Benefit Plans") in which any Company Continuing Employees will participate Plan effective as of the Effective Time, Parent shallsuch employees shall continue to participate in the corresponding employee benefit plan, program or shall cause the Surviving Corporation to, recognize all service arrangement of the Company Continuing Employees with and its Subsidiaries so as to ensure that there is not a lapse in participation or coverage (but in no event to provide duplicate participation or coverage), as applicable, prior to participation in such Parent Benefit Plan; provided that in no event shall Parent be required to continue any employee benefit plan, program or arrangement of the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any which there is no corresponding Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Plan. Parent shall cause each Parent Benefit Plan in which such Company Continuing Transferred Employees may be are eligible to participate after to take into account for purposes of eligibility, vesting and benefit accruals under the Effective Time; Parent Benefit Plans (iiiother than for benefit accruals under Parent’s defined benefit pension plan) Continuing the service of such employees with the Company shall honor all consulting or advisory agreement previously entered intoand its Subsidiaries (and any predecessor entities) to the same extent as such service was credited generally for such purpose by the Company and its Subsidiaries, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, however, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits with respect to the same period of service.
(b) If Transferred Employees become eligible to participate in a medical, dental, health or disability plan of Parent or its Subsidiaries, Parent shall cause each such plan to (Bi) waive any preexisting condition limitations to the extent such service was not recognized conditions are covered under the corresponding applicable medical, health, dental or disability plans of Parent, (ii) honor under such plans any deductible, co-payment and out-of-pocket expenses incurred by the employees and their beneficiaries during the portion of the plan year prior to such participation and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous Company Employee PlanBenefit Plan prior to the Effective Time.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability An employee of the Surviving Corporation, Parent Corporation or any of 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 its Subsidiaries who was an employee of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective its Subsidiaries immediately prior to the Effective Time (other than in each case any employee who is party to an employment agreement or compensation a change-in-control agreement) whose employment terminates under circumstances entitling him or benefits her to salary continuation under the terms of any nature or kind whatsoeverthe Company Bank Employee Severance Compensation Plan as in effect on the date hereof (the “Company Bank Severance Policy”) during the one-year period following the Effective Time shall be entitled to receive severance payments in accordance with, and to the extent provided in, the Company Bank Severance Policy. The Company Bank Severance Policy shall not be amended in a manner adverse to participants prior to the first anniversary of the Effective Time.
(d) With respect Except as set forth in Section 6.09(d) of the Company Disclosure Schedule, the Surviving Corporation shall honor, or cause to matters described be honored, in accordance with their terms, all vested or accrued benefit obligations to, and contractual rights of, current and former employees and directors of the Company and its Subsidiaries identified in Section 5.01(p)(i) of the Company Disclosure Schedule, including without limitation any benefits or rights arising as a result of the Merger (either alone or in combination with any other event).
(e) Except as otherwise provided in this Section 5.076.09, nothing contained in this Section 6.09 shall be interpreted as preventing the Surviving Corporation from amending, modifying or terminating any Company will not send any written notices Benefit Plan, Parent Benefit Plan or other written communication materials to Company Employees without the prior written consent of Parentcontracts, arrangements, commitments or understandings in accordance with their terms and applicable law.
Appears in 1 contract
Employees; Benefit Plans. (a) During Following the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (Closing Date, SBBX may choose to maintain any or if earlier, the date all of the employee's termination of employment EBNJ Benefit Plans in its sole discretion and EBNJ shall cooperate with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, SBBX in order to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect effect any plan terminations to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective be made as of the Effective Time. However, Parent shallfor any EBNJ Benefit Plan terminated for which there is a comparable SBBX Benefit Plan of general applicability, or SBBX shall take all commercially reasonable action so that employees of EBNJ shall be entitled to participate in such SBBX Benefit Plan to the same extent as similarly-situated employees of SBBX (it being understood that inclusion of the employees of EBNJ in the SBBX Benefit Plans may occur at different times with respect to different plans). SBBX shall cause each SBBX Benefit Plan in which employees of EBNJ are eligible to participate to take into account for purposes of eligibility and vesting under the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes SBBX Benefit Plans (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (iiaccrual) benefit accrual purposesthe service of such employees with EBNJ to the same extent as such service was credited for such purpose by EBNJ; provided, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits. Nothing herein shall limit the ability of SBBX to amend or terminate any of the EBNJ Benefit Plans or SBBX Benefit Plans in accordance with their terms at any time; provided, however, that SBBX shall continue to maintain the EBNJ Benefit Plans (Bother than stock-based or incentive plans) for which there is a comparable SBBX Benefit Plan until the EBNJ Employees are permitted to participate in the SBBX Benefit Plans, unless such service was not recognized SBBX Benefit Plan has been frozen or terminated with respect to similarly situated employees of SBBX or any Subsidiary of SBBX. Following the Closing Date, SBBX shall honor, in accordance with EBNJ’s policies and procedures in effect as of the date hereof, any employee expense reimbursement obligations of EBNJ for out-of-pocket expenses incurred during the calendar year in which the Closing occurs by any EBNJ Employee whose employment continues after the Effective Time.
(b) SBBX shall honor, under the corresponding Company Employee Planvacation policies of EBNJ, as disclosed on EBNJ Disclosure Schedule 3.16, the accrued but unused vacation time of employees of the Surviving Bank who were employees of EBNJ prior to the Effective Time.
(c) This Section 5.07 If employees of EBNJ become eligible to participate in a medical, dental or health plan of SBBX upon termination of such plan of EBNJ, SBBX shall be binding upon and inure solely make all commercially reasonable efforts to the benefit of cause each of the parties such plan to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed waive any preexisting condition limitations to establishthe extent such conditions are covered under the applicable medical, amend health or modify any benefit plandental plans of SBBX, program, agreement or arrangement or (ii) shall alter or limit honor under such plans any deductible, co-payment and out-of-pocket expenses incurred by the ability employees and their beneficiaries during the portion of the Surviving Corporationcalendar year prior to such participation and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, Parent in each case to the extent such employee had satisfied any similar limitation or any of their respective Affiliates requirement under an analogous EBNJ Benefit Plan prior 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverEffective Time.
(d) With respect Any employee of EBNJ (excluding any employee who is party to matters described an employment agreement, change-in-control agreement or any other agreement which provides for severance payments) whose employment is terminated (other than for cause) at the request of SBBX (but by and in this Section 5.07the sole discretion of EBNJ) prior to the Effective Time, or is terminated by SBBX or a Subsidiary of SBBX within twelve (12) months following the Company will not send Effective Date, shall be entitled to receive severance payments in an amount equal to two (2) weeks base pay for each full year of service (including all service with EBNJ, SBBX and any written notices or other written communication materials to Company Employees without the prior written consent Subsidiary of ParentSBBX), with a minimum of two (2) and a maximum of twenty-six (26) weeks of base pay.
Appears in 1 contract
Samples: Merger Agreement (Sb One Bancorp)
Employees; Benefit Plans. (a) During the For a period commencing at the Effective Time and ending on the date which is FIVE of not less than one (“5”1) months from year following the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries“Continuation Period”), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation or any of their respective Affiliates to, recognize all service provide to each individual who, immediately prior to the Effective Time is an employee of the Company Continuing Employees with the Company or any of its SubsidiariesSubsidiaries (each, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for an “Employee”) (i) purposes of early retirement subsidies under any Parent Benefit Plan a salary or hourly wage rate that is a defined benefit pension plan or not less than that provided to such Employee immediately prior to the Effective Time, (ii) target incentive pay opportunities, including bonus and commission opportunities, but not including equity and equity-based awards, that are no less favorable than those provided to such Employee immediately prior to the Effective Time and (iii) other compensation and employee benefits (excluding equity and equity-based awards which will remain discretionary) that are no less favorable in the aggregate, determined on an individual basis, than those provided to such Employee under the compensation and benefit accrual purposesplans, programs, policies, agreements and arrangements of the Company and its Subsidiaries in effect immediately prior to the Effective Time. This Section 5.4(a) shall not apply to Employees whose terms and conditions of employment are governed by a collective bargaining agreement or other labor contract, in which case the terms of the applicable collective bargaining agreement or other labor contract shall apply.
(b) The pool for the Company’s short-term incentive plan for the fiscal year ending June 30, 2022 (the “FY 2022 STIP”) shall be funded based on the greater of target and actual performance for such fiscal year, and FY 2022 STIP payments for such fiscal year shall be determined in the Company’s ordinary course of business consistent with past practice for each participant in the FY 2022 STIP as of the last day of such fiscal year and paid by the Company (or, following the Effective Time, by Parent or the Surviving Corporation) on or before September 15, 2022.
(c) Parent shall, or shall cause the Surviving Corporation and each of their respective Affiliates to, honor all Company Benefit Plans (including all severance, change of control and similar plans and agreements, including the arrangements set forth on Section 5.4(c) of the Company Disclosure Letter) in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such Company Benefit Plans and except as provided herein. Notwithstanding the foregoing, for vacationthe duration of the Continuation Period or, if applicableapplicable to the Employee, the remaining term of any individual employment, severance or separation agreement in effect immediately prior to the Effective Time (if longer), Parent shall, or shall cause the Surviving Corporation or their respective Affiliates to, provide each Employee who suffers a termination of employment under circumstances that would have given the Employee a right to severance payments and benefits under the applicable severance policy or severance plan (including the CDK Global, Inc. Third Amended and Restated Change in Control Severance Plan for Corporate Officers and the CDK Global, Inc. Amended and Restated Corporate Officer Severance Plan) of the Company or any of the Company’s Subsidiaries, or any individual employment, severance or separation agreement or other arrangement in effect immediately prior to the date of this Agreement (each, a “Company Severance Plan”) with severance payments and benefits no less favorable than those that would have been provided to such Employee under any Parent Benefit Plan in which such Company Continuing Employees may be eligible Severance Plan, subject to participate the Employee’s timely satisfaction of a release of claims requirement.
(d) For all purposes under all employee benefit plans of Parent, the Surviving Corporation and their respective Affiliates providing benefits to any Employee after the Effective Time; Time (iii) Continuing the “New Plans”), each Employee shall receive full credit for such Employee’s years of service with the Company shall honor all consulting and its Subsidiaries before the Effective Time (including predecessor or advisory agreement previously entered intoacquired entities or any other entities for which the Company and its Subsidiaries have given credit for prior service), or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, the same extent that such Employee was entitled, prior to the Effective Time, to credit for such service shall not be recognized under any similar or comparable Company Benefit Plan (except to the extent that (A) such recognition credit would result in a duplication of benefits accrual of benefits). In addition, where applicable, and without limiting the generality of the foregoing: (i) at the Effective Time, each Employee shall be immediately eligible to participate, without any waiting time, in each New Plan to the extent that such waiting time was satisfied under a similar or comparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (Bsuch plans, collectively, the “Old Plans”); (ii) Parent shall cause all pre-existing condition exclusions or limitations and actively-at-work requirements of each New Plan to be waived or satisfied for such service was not recognized Employee and his or her covered dependents to the extent waived or satisfied under the analogous Old Plan as of the Effective Time; and (iii) Parent shall cause all eligible expenses incurred by each Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date on which such Employee’s participation in the corresponding Company New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(ce) This Section 5.07 In the case of any Employee for whom the Company or its Subsidiaries tracks vacation accrual (which shall be binding upon and inure solely not include any Employee who is eligible for “unlimited” vacation or similar paid time off except as required by applicable Law), with respect to any earned but unused vacation or other paid time off to which such Employee is entitled pursuant to the benefit vacation or other paid time off policy or individual agreement or other arrangement applicable to such Employee immediately prior to the Effective Time (the “Vacation/PTO Policy”), Parent shall, or shall cause the Surviving Corporation or any of each their respective Affiliates to, (i) allow such Employee to use such earned vacation or other paid time off in accordance with the Vacation/PTO Policy and (ii) if any Employee’s employment terminates during the Continuation Period under circumstances entitling the Employee to severance pay under the Company Severance Plan, pay the Employee, in cash, an amount equal to the value of the parties to this Agreement, and nothing earned vacation or other paid time off.
(f) Nothing in this Section 5.075.4, whether express or implied, shall confer upon any other Person current or former employee of the Company, Parent, the Surviving Corporation or any of their respective Affiliates, any rights or remedies including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Section 5.075.4. Nothing contained herein, express or implied (i) shall be construed No provision of this Section 5.4 is intended to establishmodify, amend or modify create any employee benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability plan of the Company, Parent, Surviving Corporation, Parent Corporation or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverAffiliates.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Merger Agreement (CDK Global, Inc.)
Employees; Benefit Plans. (a) During Following the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (Closing Date, NHTB may choose to maintain any or if earlier, the date all of the employee's termination FBFC Benefit Plans in its sole discretion. However, for any FBFC Benefit Plan terminated for which there is a comparable benefit plan of employment with Parent and its Subsidiariesgeneral applicability at NHTB or any Subsidiary of NHTB (each, a “NHTB Benefit Plan”), Parent NHTB shall cause take all reasonable action so that employees of FBFC shall be entitled to participate in such NHTB Benefit Plan to the Surviving Corporation and each same extent as similarly-situated employees of its Subsidiaries, as applicable, to provide NHTB (it being understood that inclusion of the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, FBFC in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With NHTB Benefit Plans may occur at different times with respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent different plans). NHTB shall cause each NHTB Benefit Plans") Plan in which any Company Continuing Employees will employees of FBFC are eligible to participate effective as to take into account for purposes of eligibility and vesting under the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes NHTB Benefit Plans (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (iiaccrual) benefit accrual purposesthe service of such employees with FBFC to the same extent as such service was credited for such purpose by FBFC; provided, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits. Nothing herein shall limit the ability of NHTB to amend or terminate any of the FBFC Benefit Plans or NHTB Benefit Plans (Bincluding any defined benefit plan maintained by NHTB) in accordance with their terms at any time; provided, however, that NHTB shall continue to maintain the FBFC Benefit Plans (other than stock-based or incentive plans) for which there is a comparable NHTB Benefit Plan until the FBFC Employees are permitted to participate in the NHTB Benefit Plans, unless such service was not recognized NHTB Benefit Plan has been frozen or terminated with respect to similarly situated employees of NHTB or any Subsidiary of NHTB.
(b) To the extent that the vacation policies of FBFC, as set forth on FBFC Disclosure Schedule 5.14(b), are more favorable to employees than are the vacation policies of NHTB, the FBFC vacation policies will be continued with respect to employees of the Surviving Corporation or a Subsidiary thereof who were employees of FBFC or its Subsidiary prior to the Effective Time. NHTB shall assume and honor, under the corresponding Company Employee Planvacation policies of FBFC, as disclosed on FBFC Disclosure Schedule 5.14(b), the accrued but unused vacation time of employees of the Surviving Corporation or a Subsidiary thereof who were employees of FBFC or its Subsidiary prior to the Effective Time.
(c) This Section 5.07 If employees of FBFC become eligible to participate in a medical, dental or health plan of NHTB upon termination of such plan of FBFC, NHTB shall be binding upon and inure solely make all commercially reasonable efforts to the benefit of cause each of the parties such plan to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed waive any preexisting condition limitations to establishthe extent such conditions are covered under the applicable medical, amend health or modify any benefit plandental plans of NHTB, program, agreement or arrangement or (ii) shall alter or limit honor under such plans any deductible, co-payment and out-of-pocket expenses incurred by the ability employees and their beneficiaries during the portion of the Surviving Corporationcalendar year prior to such participation and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, Parent in each case to the extent such employee had satisfied any similar limitation or any of their respective Affiliates requirement under an analogous FBFC Benefit Plan prior 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverEffective Time.
(d) With respect to matters described in this Section 5.07NHTB, the Company will not send Surviving Corporation and FBFC CEO shall enter into an employment agreement, substantially in the form of Exhibit C hereto, which shall supersede and replace any written notices existing employment or change of control agreement to which FBFC CEO is a party; provided, however, that no such existing or proposed arrangement shall result in or require the payment of any “excess parachute payment” as defined under Section 280G of the Code.
(e) Any employee of FBFC or First Xxxxxxx National Bank (excluding any employee who is party to an employment agreement, change-in-control agreement or any other written communication materials agreement which provides for severance payments) whose employment is terminated (other than for cause) prior to Company Employees without the prior written consent Effective Time at the request of ParentNHTB or within one year thereafter shall be entitled to receive (i) severance payments in an amount equal to two (2) weeks pay for each year of service, with a minimum of four (4) and a maximum of twenty-six (26) weeks of pay.
(f) FBFC shall obtain from each of the individuals named in FBFC Disclosure Schedule 5.14
Appears in 1 contract
Samples: Merger Agreement (New Hampshire Thrift Bancshares Inc)
Employees; Benefit Plans. (a) During For one (1) year following the period commencing at Closing Date, Buyer shall provide each employee of the Effective Time and ending on Company or any of its Subsidiaries who continues to be employed by Buyer or the date which is FIVE Company or any of its Subsidiaries immediately following the Closing Date (collectively, “5Continuing Employees”) months from with employee benefits under: (i) Buyer's employee benefit plans and programs, including any equity incentive plan, pension plan, defined benefit plan, defined contribution plan, bonus plan, profit sharing plan, severance plan, medical plan, dental plan, life insurance plan, time-off programs and disability plan, in each case to the Effective Time same extent as similarly situated employees of Buyer; and/or (ii) such Employee Benefit Plans as are continued following the Closing Date or if earlierare assumed by Buyer (for the purposes of this Section 6.08 only, the date plans referred to in clauses “(i)” and “(ii)” of this sentence being referred to as the employee's termination of employment with Parent “New Plans”).
(b) From and its Subsidiaries)after the Closing Date, Parent Buyer shall, and shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectivelyto, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 grant all Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all credit for any service of the Company Continuing Employees with the Company or any of its Subsidiaries, as Subsidiaries earned prior to the case may be as if such service were with Parent, Closing Date for eligibility and vesting and eligibility purposes (but not for (ibenefit accrual) purposes under the New Plans; provided, however, that no such crediting shall result in duplication of early retirement subsidies benefits for the same period of service. In addition, Buyer shall use commercially reasonable efforts (and shall cause the Company and its Subsidiaries to use commercially reasonable efforts) to (A) cause to be waived all pre-existing condition exclusions and actively at work requirements and similar limitations, eligibility waiting periods and evidence of insurability requirements under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized New Plans to the extent that (A) such recognition would result in waived or satisfied by a duplication Continuing Employee under any Employee Benefit Plan as of benefits or the Closing Date and (B) such service was not recognized under cause any deductible, co-insurance and covered out-of-pocket expenses paid on or before the Closing Date by any Continuing Employee (or covered dependent thereof) of the Company or any of its Subsidiaries to be taken into account for purposes of satisfying the corresponding Company Employee Plandeductible, coinsurance and maximum out of pocket provisions after the Closing Date under any applicable New Plan in the year of initial participation.
(c) This Nothing contained herein, express or implied, is intended to confer upon any Continuing Employee or any employee of the Company or any of its Subsidiaries any right to continued employment for any period following the date of this Agreement or the Closing Date, or shall constitute an amendment to or any other modification of any New Plan or Employee Benefit Plan. Further, this Section 5.07 6.08 shall be binding upon and inure solely to the benefit of each of the parties to this AgreementParties, and nothing in this Section 5.076.08, express expressed or implied, shall is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee 6.08 or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoevermatter related thereto.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Stock Purchase Agreement
Employees; Benefit Plans. (a) During For a period of one year following the period commencing at Closing Date (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to will provide the current full-time employees of the Company and its Subsidiaries as of the Effective Time who continue employment with the Surviving Corporation (“Employees”) with compensation and benefits that are no less favorable in the aggregate than those provided under the Company’s compensation and benefit plans, programs, policies, practices and arrangements (excluding equity-based programs) in effect at the Effective Time (it being understood that discretionary incentive programs will remain employed discretionary); provided, however, that nothing herein will prevent the amendment or termination of any specific plan, program or arrangement, require that the Surviving Corporation provide or permit investment in the securities of the Surviving Corporation or interfere with the Surviving Corporation’s right or obligation to make such changes as are necessary to comply with applicable Law. Notwithstanding anything to the contrary set forth herein, nothing herein shall preclude the Surviving Corporation from terminating the employment of any Employee for any reason for which the Company could have terminated such Employee prior to the Effective Time.
(b) The Surviving Corporation and its Affiliates will honor all Company Benefit Plans (including any severance, retention, change of control and similar plans, agreements and written arrangements) in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such plans, agreements or written arrangements. During the Continuation Period, the Surviving Corporation will provide all Employees (other than those covered by an individual agreement providing severance benefits outside the Company’s severance policies) who suffer a termination of employment with severance benefits no less favorable than those that would have been provided to such Employees under the Company’s severance policies as in effect immediately prior to the Effective Time.
(c) For all purposes under the employee benefit plans of the Surviving Corporation and its Affiliates providing benefits to any Employees after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation“New Plans”), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by each Employee will be credited with his or her years of service with the Company and its Subsidiaries on Affiliates before the date of this Agreement.
Effective Time (b) With including predecessor or acquired entities or any other entities with respect to any "employee benefit plan" which the Company and its Affiliates have given credit for prior service), to the same extent as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiariessuch Employee was entitled, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of before the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if to credit for such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent the corresponding Company Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposesPlan, except for vacationpurposes of benefit accrual under any defined benefit plan, if applicable) in for any Parent Benefit Plan in which such Company Continuing Employees may be eligible purpose where service credit for the applicable period is not provided to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intoparticipants generally, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized and to the extent that (A) such recognition credit would result in a duplication of benefits or (B) such service was not recognized under accrual of benefits. In addition, and without limiting the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each generality of the parties to this Agreementforegoing, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall each Employee immediately will be construed eligible to establishparticipate, amend without any waiting time, in any New Plan to the extent coverage under such New Plan replaces coverage under a similar or modify any benefit plancomparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (such plans, programcollectively, agreement or arrangement or the “Old Plans”) and (ii) shall alter for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Employee, the Surviving Corporation will cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Employee and his or limit her covered dependents, to the ability extent any such exclusions or requirements were waived or were inapplicable under any similar or comparable Company Benefit Plan, and the Surviving Corporation will cause any eligible expenses incurred by such Employee and his or her covered dependents during the portion of the Surviving Corporationplan year of the Old Plan ending on the date such Employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, Parent coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or any of 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 hereto acknowledge and agree that her covered dependents for the terms set forth applicable plan year as if such amounts had been paid in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment accordance with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeversuch New Plan.
(d) With respect to matters described in No provision of this Section 5.075.6 creates any third party beneficiary rights in any current or former employee, director or consultant of the Company will not send or its Subsidiaries in respect of continued employment (or resumed employment) or any written notices or other written communication materials to Company Employees without the prior written consent of Parentmatter.
Appears in 1 contract
Samples: Merger Agreement (Educate Inc)
Employees; Benefit Plans. (a) During Seller shall, at or before the period commencing at Closing, terminate all Employees, effective no later than the Effective Time Closing Date. Prior to the Closing, Buyer shall determine those Employees whom Buyer desires to hire and ending shall offer employment effective on the date which is FIVE Closing Date to those Employees Buyer desires to hire (“5”) months from the Effective Time (Employees who accept such employment on the Closing Date or if earlierthereafter, the date “Seller Continuing Employees”). Seller consents to the hiring of the employee's termination of employment with Parent Seller Continuing Employees by Buyer and its Subsidiaries), Parent shall cause the Surviving Corporation and each any of its SubsidiariesAffiliates and waives, as applicable, with respect to provide the employees employment of the Company Seller Continuing Employees by Buyer and any of its Subsidiaries who remain employed immediately after Affiliates, any claims or rights Seller has under any non-competition, confidentiality, non-solicitation or similar restrictive covenants with the Effective Time (collectively, the "Company Seller Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With Except as expressly set forth in this Agreement, neither Buyer nor any of its Affiliates is assuming any Liabilities with respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent the Employees or with respect to any Benefit Plan or any of its Subsidiariesclaim thereof or related thereto. From and after the Closing, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectivelyexcept as expressly set forth in this Agreement, "Parent Benefit Plans") Seller shall remain solely responsible for all Liabilities in which any Company Continuing Employees will participate effective as respect of the Effective TimeEmployees, Parent shallincluding the Seller Continuing Employees, and their respective beneficiaries and dependents, relating to or shall cause the Surviving Corporation to, recognize all service arising in connection with or as a result of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes the employment or the actual or constructive termination of early retirement subsidies under employment of any Parent Benefit Plan that is a defined benefit pension plan such Employee by Seller (including in connection with the consummation of the Transactions) at or before the Closing; (ii) benefit the participation in or accrual purposesof benefits or compensation under, except for vacationor the failure to participate in or to accrue compensation or benefits under, if applicable) in any Parent Benefit Plan in which or other employee or retiree benefit or compensation plan, program, practice, policy, agreement, or arrangement of Seller, including any such Company Continuing Employees may be eligible to participate after the Effective Timecompensation or benefits mandated by applicable Laws; or (iii) Continuing Company shall honor all consulting salaries, wages, bonuses, incentive compensation, vacation, sick pay and any other compensation or advisory agreement previously entered into, payroll items (including deferred compensation) that accrued at or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to before the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee PlanClosing but is unpaid.
(c) From and after the Closing, unless otherwise required by applicable Laws, Seller shall remain solely responsible for all Liabilities to or in respect of the Employees, including the Seller Continuing Employees, relating to or arising in connection with any and all claims for workers’ compensation benefits arising in connection with any occupational injury or disease occurring prior to the Closing. Seller shall provide all notices and make all payments to the Employees, including the Seller Continuing Employees, required by the Worker Adjustment and Retraining Notification Act and all similar applicable Laws as a result of the Transactions, whether such notice is required to be given, if at all, before, on or after the Closing Date.
(d) Seller shall promptly pay to each Seller Continuing Employee (i) the amount (as of the Closing Date) of all earned or accrued salary, wages, bonuses, incentive compensation and any other compensation or payroll items (including deferred compensation) of such Seller Continuing Employee (collectively, “Accrued Compensation”) and (ii) the monetary equivalent (as of the Closing Date) of all earned or accrued unused vacation, personal pay, sick pay and any other paid time off of such Seller Continuing Employee (collectively, “PTO Amounts”). When calculating a Seller Continuing Employee’s Accrued Compensation and PTO Amounts for purposes of this Section 6.4(d), Seller shall not reduce such Seller Continuing Employee’s Accrued Compensation or PTO Amounts if such reduction would not have occurred but for the termination resulting from the consummation of the Transactions, it being the intent of the Parties that such Seller Continuing Employee suffer no loss of any Accrued Compensation or PTO Amounts as a result of such Seller Continuing Employee’s termination in connection with the consummation of the Transactions. Table of Contents
(e) Seller and/or any of its Affiliates, as applicable, shall be solely responsible for the provision of (and any Liability relating to) continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 as provided for under Sections 601 through 608 of ERISA, Section 4980B of the Code, and Sections 54.4980B-1 through 54.4980B-10 of the Treasury Regulations to all former employees of Seller and any other M&A Qualified Beneficiaries (as defined in Section 54.4980B-9, Q&A-4 of the Treasury Regulations), including any former employees of Seller as of the Closing or those employees who otherwise discontinue service to Seller at or before the Closing as a result of the Transactions.
(f) This Section 5.07 6.4 shall be binding upon and inure solely to the benefit of each of the parties to this AgreementParties, and nothing in this Section 5.076.4, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.076.4. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit arrangement, including the ability of the Surviving Corporation, Parent or any of 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 themBenefit Plans. The parties hereto Parties acknowledge and agree that the terms set forth in this Section 5.07 6.4 shall not create any right in any Company Employee or any other Person to any continued employment or engagement with the Surviving CorporationSeller, Parent Buyer or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (a) During Company and Company Bank agree, upon Buyer’s reasonable request, to facilitate discussions between Buyer and Company Employees a reasonable time in advance of the period commencing at Closing Date regarding employment, consulting or other arrangements to be effective prior to or following the Effective Time and ending on the date which is FIVE (“5”) months from Time. Prior to the Effective Time (Time, any interaction between Buyer and Company Employees shall be coordinated with Company or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this AgreementBank.
(b) With respect Prior to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained the Closing Date, if directed by Parent or any of its SubsidiariesBuyer, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize take all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for action required to (i) purposes of early retirement subsidies under cause any Parent Company Benefit Plan that is a defined benefit pension plan or has liabilities in respect of its participants to be fully funded to the extent required under applicable Law and (ii) benefit accrual purposesterminate or merge any Company Benefit Plan. All resolutions, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intonotices, or employment pending equity awards stock options other documents issued, adopted or warrants executed in connection with the implementation of the first sentence of this Section 5.11(b) shall be subject to purchase equity based upon performance. providedBuyer’s reasonable prior review and approval, that such service which shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits unreasonably withheld, conditioned or (B) such service was not recognized under the corresponding Company Employee Plandelayed.
(c) This Section 5.07 For any Company Benefit Plan terminated by Buyer for which there is a comparable Buyer Benefit Plan of general applicability, Company Employees who are retained by Buyer or Buyer Bank shall be binding upon entitled to immediately participate in such Buyer Benefit Plans to the same extent as similarly-situated employees of Buyer or Buyer Bank (it being understood that inclusion of Company Employees in the Buyer Benefit Plans may occur at different times with respect to different plans). To the extent allowable under any Buyer Benefit Plans in which Company Employees participate, Company Employees shall be given credit for prior service or employment with Company or Company Bank (as well as service with any predecessor employer) for purposes of eligibility for and inure solely vesting of all benefits under such plans and for purposes of accruals or levels of severance, vacation pay, paid time off or similar benefits; provided that the foregoing shall not apply to the extent that it would result in any duplication of benefits. Notwithstanding the foregoing, Buyer may amend or terminate any Buyer Benefit Plan at any time in its sole discretion.
(d) Buyer shall cause Buyer Benefit Plans in which Company Employees participate to (i) waive any pre-existing condition limitations to the extent such conditions are covered under the applicable medical, health, or dental plans of Buyer or Buyer Bank, (ii) provide full credit under such plans for any deductible incurred by the employees and their beneficiaries under an analogous Company Benefit Plan during the portion of the calendar year prior to such participation, and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous Company Benefit Plan prior to the Effective Time for the plan year in which the Effective Time occurs.
(e) Each full-time employee of Company or Company Bank, other than an employee who is a party to an employment agreement, change in control agreement or other separation agreement that provides a benefit on a termination of employment, who is terminated by Buyer or its Subsidiaries (other than for cause) within six (6) months following the Effective Time shall receive a lump sum severance payment from Buyer or Buyer Bank or to the extent required by Section 409A of the Code, within the time period and in the form specified in the applicable agreement, in accordance with Company Disclosure Schedule 5.11(e) provided that such employee enters into a release of claims for the benefit of each of the parties Company and Buyer and their Subsidiaries and Affiliates in a form satisfactory to this AgreementBuyer.
(f) Except as provided in Section 5.11(g), and nothing in this Section 5.075.11, express expressed or implied, shall is intended to confer upon any other Person (including any Company Employee) any rights or remedies of any nature whatsoever under or by reason whatsoever. Without limiting the foregoing, no provision of this Section 5.075.11 will create any third party beneficiary rights in any current or former employee, director or consultant of Company or its Subsidiaries or ERISA Affiliates, any beneficiary or dependent thereof, or any collective bargaining representative thereof, in respect of continued employment (or resumed employment), compensation, terms and conditions of employment and/or benefits or any other matter. Nothing contained hereinin this Section 5.11, express expressed or implied implied, unless otherwise agreed to by Buyer, is intended (i) shall be construed to establishamend in accordance with its terms and applicable Law any Company Benefit Plan or any Buyer Benefit Plan, amend (ii) interfere with Buyer’s right from and after the Closing Date to terminate in accordance with its terms and applicable Law any Company Benefit Plan that is not terminated prior to the Effective Time or modify Buyer Benefit Plan (iii) require Buyer to establish or maintain any employee benefit plan, program(iv) interfere with Buyer’s right from and after the Effective Time to terminate the employment of or provision of services by any director, employee, independent contractor or consultant or (v) interfere with Buyer’s right from and after the Effective Time to change, terminate or add to the terms and conditions of employment or provisions of services by any director, employee, independent contractor or consultant, subject to the terms of any applicable employment contract or agreement.
(g) Buyer will take or cause its Subsidiaries to take all actions necessary to fund, pay, provide for, administer and maintain the Salary Continuation Agreements and Split Dollar Arrangements set forth in Company Disclosure Schedule 5.11(g) in accordance with the terms of such agreements and arrangements, including any distribution and termination rights, except to the extent any such agreement or arrangement or (ii) shall alter or limit is superseded, with the ability consent of the Surviving Corporationbeneficiary, Parent as of, or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07following, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of ParentEffective Time.
Appears in 1 contract
Employees; Benefit Plans. (a) During Company and Company Bank agree, upon Buyer’s reasonable request, to facilitate discussions between Buyer and Company Employees a reasonable time in advance of the period commencing at Closing Date regarding employment, consulting or other arrangements to be effective prior to or following the Effective Time and ending on the date which is FIVE (“5”) months from Time. Prior to the Effective Time (Time, any interaction between Buyer and Company Employees shall be coordinated with Company or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this AgreementBank.
(b) With respect Not later than ten (10) Business Days prior to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained the Closing Date, if directed by Parent or any of its SubsidiariesBuyer, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize take all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for action required to (i) purposes of early retirement subsidies under cause any Parent Company Benefit Plan that is a defined benefit pension plan or has liabilities in respect of its participants to be fully funded to the extent required under applicable Law and (ii) benefit accrual purposesterminate or merge any Company Benefit Plan. All resolutions, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intonotices, or employment pending equity awards stock options other documents issued, adopted or warrants executed in connection with the implementation of the first sentence of this Section 5.11(b) shall be subject to purchase equity based upon performance. providedBuyer’s reasonable prior review and approval, that such service which shall not be recognized unreasonably withheld, conditioned or delayed. Distributions of benefits under any Company 401(a) Plan shall occur in accordance with such plan’s terms and applicable Law, and a participant in such plan will be allowed to take, at the participant’s option: (x) a direct distribution from such plan; (y) a rollover to an Individual Retirement Account; or (z) a rollover to a tax qualified retirement plan of Buyer or Buyer Bank to the extent that (A) the plan sponsored by Buyer or Buyer Bank accepts rollover contributions, if such recognition would result in a duplication of benefits participant is employed by Buyer or (B) such service was not recognized under the corresponding Company Employee PlanBuyer Bank.
(c) This Section 5.07 For any Company Benefit Plan terminated by Buyer for which there is a comparable Buyer Benefit Plan of general applicability, Company Employees who are retained by Buyer or Buyer Bank shall be binding upon entitled to participate in such Buyer Benefit Plans to the same extent as similarly-situated employees of Buyer or Buyer Bank (it being understood that inclusion of Company Employees in the Buyer Benefit Plans may occur at different times with respect to different plans). To the extent allowable under any Buyer Benefit Plans in which Company Employees participate, Company Employees shall be given credit for prior service or employment with Company or Company Bank (as well as service with any predecessor employer) for purposes of eligibility for and inure solely vesting of all benefits under such plans and for purposes of accruals or levels of severance, vacation pay, paid time off or similar benefits; provided that the foregoing shall not apply to the extent that it would result in any duplication of benefits. Notwithstanding the foregoing, Buyer may amend or terminate any Buyer Benefit Plan at any time in its sole discretion.
(d) Buyer shall use commercially reasonable efforts to cause Buyer Benefit Plans in which Company Employees participate to (i) waive any pre-existing condition limitations to the extent such conditions are covered under the applicable medical, health, or dental plans of Buyer or Buyer Bank, (ii) subject to approval from Buyer’s insurance carrier, if required, provide full credit under such plans for any deductible incurred by the employees and their beneficiaries under an analogous Company Benefit Plan during the portion of the calendar year prior to such participation, and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous Company Benefit Plan prior to the Effective Time for the plan year in which the Effective Time occurs.
(e) Each full-time employee of Company or Company Bank, other than an employee who is a party to an employment agreement, change in control agreement or other separation agreement that provides a benefit on a termination of employment, who is terminated by Buyer or its Subsidiaries (other than for cause) within six (6) months following the Effective Time shall receive a lump sum severance payment from Buyer or Buyer Bank in accordance with Company Disclosure Schedule 5.11(e) provided that such employee enters into a release of claims for the benefit of each of the parties Company and Buyer and their Subsidiaries and Affiliates in a form satisfactory to this Agreement, and nothing Buyer.
(f) Nothing in this Section 5.075.11, express expressed or implied, shall is intended to confer upon any other Person (including any Company Employee) any rights or remedies of any nature whatsoever under or by reason whatsoever. Without limiting the foregoing, no provision of this Section 5.075.11 will create any third party beneficiary rights in any current or former employee, director or consultant of Company or its Subsidiaries or ERISA Affiliates, any beneficiary or dependent thereof, or any collective bargaining representative thereof, in respect of continued employment (or resumed employment), compensation, terms and conditions of employment and/or benefits or any other matter. Nothing contained hereinin this Section 5.11, express expressed or implied implied, is intended (i) shall be construed to establishamend any Company Benefit Plan or any Buyer Benefit Plan, (ii) interfere with Buyer’s right from and after the Closing Date to amend or modify terminate any Company Benefit Plan that is not terminated prior to the Effective Time or Buyer Benefit Plan (iii) require Buyer to establish or maintain any employee benefit plan, program(iv) interfere with Buyer’s right from and after the Effective Time to terminate the employment of or provision of services by any director, agreement employee, independent contractor or arrangement consultant or (iiv) shall alter interfere with Buyer’s right from and after the Effective Time to changes terminate or limit add to the ability terms and conditions of the Surviving Corporation, Parent employment or any provisions of their respective Affiliates to amend, modify or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained services by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee director, employee, independent contractor or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverconsultant.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (a) During For a period of one year following the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlierClosing Date, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to will provide the current employees of the Company and its Subsidiaries (other than those employees covered by a collective bargaining agreement) as of the Effective Time who continue employment with the Surviving Corporation (“Employees”) with base salary, the opportunity for cash bonus compensation, and benefits that are no less favorable in the aggregate than those provided under the Company’s compensation and benefit plans, programs, policies, practices and arrangements (excluding equity-based programs) in effect at the Effective Time (it being understood that discretionary incentive programs will remain employed discretionary); provided, however, that nothing herein will prevent the amendment or termination of any specific plan, program or ar- rangement, require that the Surviving Corporation provide or permit investment in the securities of the Surviving Corporation or interfere with the Surviving Corporation’s right or obligation to make such changes as are necessary to comply with applicable Law. Notwithstanding anything to the contrary set forth herein, nothing herein shall preclude the Surviving Corporation from terminating the employment of any Employee for any reason for which the Company could have terminated such Employee prior to the Effective Time.
(b) The Surviving Corporation and its Affiliates will honor all Employee Benefit Plans and employment agreements (including any severance, retention, change of control and similar plans, agreements and written arrangements) in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such plans, agreements or written arrangements.
(c) For all purposes under the employee benefits plans of the Surviving Corporation and its Subsidiaries providing benefits to any employees after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation“New Plans”), and each employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by will be credited with his or her years of service with the Company and its Subsidiaries on Affiliates prior to the date of this Agreement.
Effective Time (b) With respect including predecessor or other entities for which the Company and its Affiliates have given credit for prior service), to any "the same extent as such employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiarieswas entitled, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of before the Effective Time, Parent shallto credit for such service under the corresponding Employee Benefit Plan, except for purposes of benefit accrual under defined benefit plans, for any purpose where service credit for the applicable period is not provided to participants generally, and to the extent that such credit would result in a duplication of accrual of benefits. In addition, and without limiting the foregoing, (i) each Employee immediately will be eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or shall cause comparable Employee Benefit Plan in which such employee participated immediately before the Effective Time (such plans, the “Old Plans”) and (ii) for the purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any employee and his or her covered dependents, to the extent any such exclusions or requirements were waived or inapplicable under any Old Plan, and the Surviving Corporation to, recognize all service will cause any eligible expenses incurred by such employee and his or her covered dependents during the portion of the Company Continuing Employees plan year of the Old Plans ending on the date such employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(d) The terms and provisions of this Section 5.04 are intended solely for the benefit of each party hereto and their respective or permitted assigns and it is not the intention of the parties to confer Third Party beneficiary rights upon any other Person. Nothing in this Agreement is intended to and shall not establish or create or amend any employee benefit plan, practice or program of the Company or any of its Subsidiaries, as Subsidiaries or the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent Corporation or any of their respective Affiliates to amend, modify successors or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge assigns and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any contract of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeveremployment.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Merger Agreement (Centerplate, Inc.)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on December 31, 2022 (the date which is FIVE (“5Employment Period”) months from the Effective Time (or if earlier, the date of the employee's ’s termination of employment with Parent and or its Subsidiaries), and to the extent consistent with the terms of the governing plan documents, Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after during the Effective Time Employment Period (collectively, the "“Company Continuing Employees"”) with annual base salarysalary or wage level, annual target bonus opportunities (excluding equity-based compensation), and employee benefits (excluding any retiree health or defined benefit retirement benefits) that are, in the aggregate, no less favorable than substantially comparable to the annual base salary, salary or wage level,annual target bonus opportunities (excluding equity-based compensation), and employee benefits (excluding any retiree health or defined benefit retirement benefits) provided by the Company and its Subsidiaries on the date of this Agreement.
(b) , taken as a whole. With respect to any "“employee benefit plan" ” as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare health plans or programs maintained by Parent or any of its Subsidiaries Subsidiaries, any defined benefit retirement plans or programs 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 Employees will participate effective as of the Effective Time, and subject to the terms of the governing plan documents, Parent shall, or shall cause the Surviving Corporation to, recognize credit all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and purposes of eligibility purposes to participate (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined vesting or benefit pension plan or (ii) benefit accrual purposesaccrual, except for vacation, if applicable) for full or partial years of service in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized credited to the extent that that: (Ai) such recognition crediting would result in a duplication of benefits benefits; or (Bii) such service was not recognized credited under the corresponding Company Employee Plan.
(c) . This Section 5.07 7.14 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.077.14, express or implied, shall confer upon any Company Continuing Employees, any beneficiary, or any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.077.14, including without limitation the right to continued employment with the Company after the Effective Time. Nothing contained herein, express or implied implied: (ix) shall be construed to establish, amend amend, or modify any benefit plan, program, agreement agreement, or arrangement or arrangement; (iiy) shall alter or limit the ability of the Surviving Corporation, Parent Parent, or any of their respective Affiliates to amend, modify modify, or terminate any benefit plan, program, agreement agreement, or arrangement at any time assumed, established, sponsored sponsored, or maintained by any of them; or (z) shall prevent the Surviving Corporation, Parent, or any of their respective Affiliates from terminating the employment of any Company Continuing Employee following the Effective Time. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 7.14 shall not create any right in any Company Employee employee or any other Person to any continued employment with the Surviving Corporation, Parent Parent, or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever, or otherwise alters any existing at-will employment relationship between any Company employee and the Surviving Corporation.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE twelve (“5”12) months from after the Effective Time (or if earlier, the date of the employee's ’s termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "“Company Continuing Employees"”) with base salary, salary and target cash bonus opportunities (excluding but not, for the avoidance of doubt, equity-based compensation), and employee benefits compensation or specific performance targets) that are, in the aggregate, no less favorable than to the base salary, salary and target cash bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the Agreement Date. Nothing contained in this Agreement shall confer upon any employee any right with respect to continued employment by Parent or Surviving Corporation, nor shall anything herein interfere with the right of Parent or Surviving Corporation to terminate the employment of any employee (including any Company Continuing Employee) at any time, with or without cause, following the effective date of this Agreementhis or her employment with Parent or Surviving Corporation.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA , program, policy or arrangement that is sponsored, maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained contributed to by Parent or any of its Subsidiaries (collectively, "“Parent Benefit Plans"”) in which any Company Continuing Employees will are or may become eligible to participate effective as of in on or following the Effective Time, Parent shallshall use commercially reasonable efforts to, or shall cause the Surviving Corporation to, to the extent permitted by the terms of the Parent Benefit Plans, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be be, as if such service were with ParentParent or any of its Subsidiaries, for purposes of eligibility to participate, vesting and eligibility purposes (but benefit levels based on seniority; provided, that, such service shall not for be recognized (i) for benefit accrual purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan plan, or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Planbenefits.
(c) This Section 5.07 Nothing contained in this Agreement shall be binding upon and inure solely to the benefit of each create any third party beneficiary rights in any Company Continuing Employee or other employee of the parties Company, or any beneficiary or dependents thereof, with respect to any right of employment (including, without limitation, the compensation, terms and conditions of employment and benefits) or any other legal or equitable right, benefit or remedy of any nature. Nothing in this Agreement, expressed or implied, shall amend, or be deemed to amend, any Parent Benefit Plan or any Benefit Plan, and nothing in this Section 5.07Agreement, express or implied, shall confer upon is intended to, or does, constitute the establishment of, or an amendment to, any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent Benefit Plan or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverBenefit Plan.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Merger Agreement (Electro Rent Corp)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time Closing and ending on the date which is FIVE (“5”) months from the Effective Time December 31, 2020 (or if earlier, the date of the employee's ’s termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees applicable member of the Company Group), Buyer shall and its Subsidiaries shall cause each member of the Company Group to provide each employee of the Company Group who remain (i) is not represented by a labor organization and is not a Temporary Liberty Employee, and (ii) remains employed by a member of the Company Group immediately after the Effective Time Closing (collectivelyeach, the "a “Company Continuing Employees"Employee”) with with: (A) base salarysalary or hourly wages, target cash bonus and other cash incentive opportunities (excluding equity and equity-based compensationrights and cash- and equity-based transaction and retention bonuses), and employee benefits that are, in the aggregate, are no less favorable than in the aggregate to the base salarysalary or hourly wages, target cash bonus or other cash incentive opportunities (excluding equity and equity-based compensationrights and cash- and equity-based transaction and retention bonuses), provided to such Company Continuing Employee immediately prior to the Closing and employee (B) retirement and welfare benefits (excluding any single employer defined benefit pension plans, retiree welfare plans, or benefits attributable to such plans), that, at the election of Buyer, are either no less favorable in the aggregate than (y) those retirement and welfare benefits provided by to similarly situated employees of Buyer or its Subsidiaries or (z) those retirement and welfare benefits (for the avoidance of doubt, excluding any single employer defined benefit pension plans, retiree welfare plans, or benefits attributable to such plans) provided to such Company Continuing Employee immediately prior to the Closing; provided, however, that Buyer shall have no obligation to provide any base salary or hourly wages or cash bonus and other cash incentive opportunities to any Company Continuing Employee during any period such Company Continuing Employee is laid off but whose employment is not terminated (including during any winter layoff period) consistent with the past practices of the member of the Company Group who employed such Company Continuing Employee immediately prior to the Closing. For the avoidance of doubt, any severance benefits due and payable under any Retention Incentive Agreement (as defined in the Disclosure Schedules) following Closing shall be the sole responsibility of Buyer and its Subsidiaries on Affiliates (including the date members of this Agreementthe Company Group).
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent “Buyer Benefit Plans"”) in which any Company Continuing Employees will participate effective as of the Effective TimeClosing, Parent Buyer shall, or shall cause the Surviving Corporation applicable member of the Company Group to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be Group as if such service were with ParentBuyer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective TimeClosing; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.37
(c) This Section 5.07 5.05 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, 5.05 shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.05. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 5.05 shall not create any right in any Company Employee employee or any other Person to any continued employment with any member of the Surviving CorporationCompany Group, Parent Buyer or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Stock Purchase Agreement (Gatx Corp)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from one-year anniversary of the Effective Time (or if earlier, the date of the employee's ’s termination of employment with Parent and its SubsidiariesSubsidiaries (including the Surviving Corporation)), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain while employed immediately after the Effective Time during such period (collectively, the "“Company Continuing Employees"”) with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "“employee benefit plan" ” as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be be, as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, provided that such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 5.8 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.075.8, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.8. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 5.8 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.075.8, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. a. Immediately after Closing and for forty-six (a46) During the period commencing at the Effective Time days thereafter, Buyers shall and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, RSG1 to provide the employees of the Company and its Subsidiaries each Employee who remain remains employed immediately after the Effective Time Closing (collectively, “Continuing Employee”) with: (i) base salary or hourly wages which are no less than the "Company Continuing Employees"base salary or hourly wages provided by RSG1 immediately prior to the Closing; (ii) with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that areif any, in the aggregate, which are no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), ) provided by RSG1 immediately prior to the Closing; (iii) retirement and employee welfare benefits that are no less favorable in the aggregate than those provided by the Company RSG1 immediately prior to the Closing; and its Subsidiaries on (iv) severance benefits that are no less favorable than the date practice, plan or policy in effect for such Continuing Employee immediately prior to the Closing. Nothing in this Section 5.4(a) shall require Buyers or RSG1 to continue any level of this Agreementsalary, wages, bonus, or benefits after forty-six (46) following the Closing Date, and Buyers and RSG1 may change any or all such compensation and benefits of the Continuing Employees after such forty-six (46) day period.
(b) b. With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent Buyers or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its their Subsidiaries (collectively, "Parent “Buyers Benefit Plans"”) in which any Company Continuing Employees will participate effective as of after the Effective TimeClosing, Parent Buyers shall, or shall cause RSG1 to, to the Surviving Corporation tomaximum extent permitted by such Buyers Benefit Plans, recognize all service of the Company Continuing Employees with the Company or any of its SubsidiariesRSG1, as the case may be as if such service were with ParentBuyers, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyers Benefit Plan Plans in which such Company Continuing Employees may be eligible to participate after the Effective TimeClosing; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Company Employee Benefit Plan.
(c) This Section 5.07 c. Seller shall be binding upon 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 the Continuing Employees and inure solely any former employees, officers, directors, independent contractors or consultants of RSG1, or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, Closing Date. Seller also shall confer upon any other Person any rights or remedies remain solely responsible for all worker's compensation claims of any nature whatsoever under Continuing Employees and any former employees, officers, directors, independent contractors or by reason consultants of this Section 5.07RSG1 which relate to events occurring on or prior to the Closing Date. Nothing contained hereinSeller shall pay, express or implied (i) shall cause to be construed paid, all such amounts to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge appropriate persons as and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverwhen due.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.d. This
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Finish Line Inc /In/)
Employees; Benefit Plans. (a) During Following the period commencing at Closing Date, Buyer may choose to maintain any or all of the Effective Time Company Benefit Plans in its sole discretion and ending on the date which is FIVE (“5”) months from Company shall cooperate and shall cause Company Bank to cooperate with Buyer in order to effect any plan terminations to be made as of the Effective Time (or if earlierimmediately prior to the Effective Time in the case of any tax-qualified 401(k) plan). However, for any the date Company Benefit Plan terminated for which there is a comparable Buyer Benefit Plan of general applicability, Buyer shall take all reasonable action so that employees of the employee's termination Company and the Company Bank shall be entitled to participate in such Buyer Benefit Plan to the same extent as similarly-situated employees of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each Buyer (it being understood that inclusion of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With Bank in Buyer Benefit Plans may occur at different times with respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent different plans). Buyer shall cause each Buyer Benefit Plans") Plan in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service employees of the Company Continuing Employees with or the Company or any Bank are eligible to participate to take into account for purposes of its Subsidiaries, as the case may be as if such service were with Parent, for eligibility and vesting and eligibility purposes under Buyer Benefit Plans (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan accrual) the service of such employees with the Company and the Company Bank to the same extent as such service was credited for such purpose by the Company or (ii) benefit accrual purposesthe Company Bank, except for vacationas applicable; provided, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits. Nothing herein shall limit the ability of Buyer to amend or terminate any of the Company Benefit Plans or Buyer Benefit Plans in accordance with their terms at any time; provided, however, that Buyer shall continue to maintain the Company Benefit Plans (Bother than stock-based or incentive plans) for which there is a comparable Buyer Benefit Plan until the Company Employees are permitted to participate in Buyer Benefit Plans, unless such service was not recognized Buyer Benefit Plan has been frozen or terminated with respect to similarly situated employees of Buyer or any Subsidiary of Buyer.
(b) Buyer shall assume and honor, under the corresponding vacation policies of the Company Employee Planand the Company Bank, as disclosed on Company Disclosure Schedule 3.16, the accrued but unused vacation time of employees of the Surviving Corporation who were employees of the Company or the Company Bank prior to the Effective Time.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each If employees of the parties Company or the Company Bank become eligible to this Agreementparticipate in a medical, and nothing in this Section 5.07dental or health plan of Buyer upon termination of such plan of the Company or the Company Bank, express or implied, Buyer shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied make all commercially reasonable efforts to cause each such plan to (i) shall be construed waive any preexisting condition limitations to establishthe extent such conditions are covered under the applicable medical, amend health or modify any benefit plandental plans of Buyer, program, agreement or arrangement or (ii) shall alter or limit honor under such plans any deductible, co-payment and out-of-pocket expenses incurred by the ability employees and their beneficiaries during the portion of the Surviving Corporationcalendar year prior to such participation and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, Parent in each case to the extent such employee had satisfied any similar limitation or any of their respective Affiliates requirement under an analogous the Company Benefit Plan prior 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverEffective Time.
(d) With respect Any employee of the Company or the Company Bank (excluding any employee who is party to matters described an employment agreement, change-in-control agreement or any other agreement which provides for severance payments) whose employment is terminated (other than for cause) at the request of Buyer (but by and in this Section 5.07the sole discretion of the Company and the Company Bank) prior to the Effective Time, or is terminated by Buyer or a Subsidiary of Buyer within six (6) months following the Effective Date, shall be entitled to receive severance payments in an amount equal to two (2) weeks base pay for each full year of service based upon the employee’s date of hire (plus a prorated amount for each partial year of service, such service determined by taking into account service with the Company, the Company Bank, Buyer and any Subsidiary of Buyer), with a minimum of four (4) and a maximum of twenty-six (26) weeks of base pay. Any employee of the Company or the Company Bank whose employment is terminated (other than for cause) pursuant to this Section 5.14(h) shall be eligible to apply for open job listings at the Buyer and/or its affiliates and Buyer shall use commercially reasonable efforts to notify such persons of these vacancies as they may arise from time to time.
(e) As soon as practicable after the execution of this Agreement, Buyer and/or Buyer Bank will not send enter into a change of control agreement with Xxxxxx X. Xxxx substantially in the form attached hereto as Exhibit B to be effective as of the Effective Time. At and following the Effective Time, Buyer shall honor the contractual rights and vested benefit obligations of current and former employees and directors of the Company and Company Bank existing as of the Effective Date as well as all employment, severance, deferred compensation, change in control agreements to the extent set forth on Company Disclosure Schedule 3.16(e). Buyer acknowledges that the consummation of the Merger will constitute a “change in control” of the Company and Company Bank for purposes of any written notices benefit plans, agreements and arrangements of the Company and Company Bank to the extent such benefit plans, agreements and arrangements are set forth on Company Disclosure Schedule 3.16(a).
(f) Buyer and the Company shall provide, or other written communication materials shall cause Buyer Bank and the Company Bank, as applicable, to provide, a retention pool in an amount disclosed in Buyer Disclosure Schedule 5.14(f) to certain employees of the Company Employees without and/or the prior written consent of ParentCompany Bank to be designated by Buyer in consultation with the Company. Such designated employees will enter into a retention agreement to be mutually agreed upon by Buyer and the Company.
Appears in 1 contract
Samples: Merger Agreement (New Hampshire Thrift Bancshares Inc)
Employees; Benefit Plans. (a) During Schedule 6.17 (a) sets forth a true, complete and correct list of all Employees earning in excess of E35,000 per annum, for each relevant jurisdiction separately, containing the period commencing at following details with respect of each Employee: (i) name, (ii) the Effective Time start date and ending on term of service, (iii) the date total annual gross salary for the most recently completed fiscal year, (iv) any long-term absence which is FIVE exceeds six months or could reasonably be expected to exceed six months in the future, due to motherhood, military/civil service or long-term illness, and (“5”v) months from the Effective Time (or if earlierapplicable, the effective date on which any fixed term employment Contract ends or the effective date on which any employment Contract of the employee's termination of any Employee ends where notice has been given or received to terminate such employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreementcontract.
(b) With Schedule 6.17 (b) sets forth a true, complete and correct list, for each relevant jurisdiction separately, of all collective agreements with respect to the Employees to which any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent the Sale Companies or any of its SubsidiariesAsset Seller is a party or by which it is bound, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectivelyincluding, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation but not limited to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiariescollective bargaining agreements, as the case may be as if such service were with Parent, for vesting shop agreements and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plansimilar Contracts and agreements.
(c) This Section 5.07 shall be binding upon The Sale Companies and inure solely the Asset Sellers have complied in all material respects with their duties under labor and employment Laws and employment-related Contracts with respect to the benefit of each Employees, former employees of the parties to this AgreementSale Companies, unions, works councils, respectively comparable employee representation bodies, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverGovernment Authorities.
(d) With All due payments to Employees and social security authorities relating to salaries, wages, contractual or statutory severance payments in the context of earlier terminations, and premiums for insured benefits or employer contributions to pension schemes under any Benefit Plans, in each case due prior to the Closing, and all income tax deductions for which the employer is responsible under applicable Law, have been made by the Sale Companies and the Asset Sellers in a timely manner and in the correct amount; and no social security or tax authority has issued a notice of deficiency with respect to matters described such payment.
(e) None of the individuals which provided services within the last three years to any of the Sale Companies or the Asset Sellers in a capacity of a consultant, freelancer or independent contractor constitutes an employee of the Sale Company or the Asset Seller. Within the last year, no individual who was considered a consultant, freelancer or independent contractor by the Sale Companies or the Asset Sellers, and no social security authority, has claimed or asserted that in fact there is an employment relationship with such individual.
(f) None of the Sale Companies or the Asset Sellers is in breach in any material respect (in respect of the Employees) of any work safety regulations or in default in any material respect with payments to xxxxxxx'x compensation institutions or institutions with a similar economic purpose.
(g) Schedule 6.17(g) sets forth a true, complete and correct list of all Contracts, for each relevant jurisdiction separately, entered into by any Sale Company or any Asset Seller, which require the relevant employer to make any severance payment or payment with a similar economic effect in case of a termination of employment of any Employee. For the avoidance of doubt, collective bargaining agreements not directly concluded by the respective company shall not fall under this Section 5.07clause.
(h) Schedule 6.17(h) sets forth a true, complete and correct list of all strikes and organized work stoppages exceeding one day, for each relevant jurisdiction separately, which have occurred within the Company last three years prior to the date hereof with respect to the Business.
(i) To the Knowledge of Seller, as of the Closing Date, there is no payment or compensation due to Employees of the Asset Sellers or employees of the Sale Companies for any employee inventions which entitle such individuals to any payment or compensation beyond their regular salary or wage. Except as disclosed in Schedule 6.17(i), there are no employment-related change-in-control Contracts or Contracts with change-in-control provisions in place which give rise to any payment or benefit to any Employee as a result of the transactions contemplated under this Agreement and for which any of the Sale Companies or the Asset Sellers is or would be liable.
(j) Schedule 6.17(j) sets forth a true, complete and correct list of all Benefit Plans, for each relevant jurisdiction separately, which relate to Employees or former employees of the Sale Companies or in respect of which any such Employees have any accrued future or contingent rights or entitlements. To the extent any Benefit Plan requires insolvency protection or funding by the respective employer under applicable Law or otherwise, such insolvency protection has been correctly obtained, or funding satisfied, in either case, in full.
(k) Schedule 6.17(k) sets forth a true, complete and correct list of all vested pension claims of former employees, pensioners or their respective relatives, or current employees (in all cases, of any Sale Company), under Benefit Plans of any Sale Company, in each case with the respective annual amount to be paid or, in case of former employees who have vested pension claims but are not yet entitled to a pension payment, upon the date the payment will not send any written notices or other written communication materials to Company Employees without become due the prior written consent of Parentfirst time.
Appears in 1 contract
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of Buyer shall retain all Company Employees who accept employment with Parent Buyer Bank under the terms and its Subsidiaries)conditions specified by Buyer; provided, Parent that continued retention by Buyer Bank of such employees subsequent to the Merger shall cause the Surviving Corporation be subject to Buyer Bank's normal and each of its Subsidiariescustomary employment procedures and practices, as applicableincluding customary background screening and evaluation procedures, to provide the employees of and satisfactory employment performance. In addition, Company and Company Bank agree that Buyer may enter into discussions with the Company and its Subsidiaries who remain employed immediately after Employees listed on Schedule 5.11(a) hereto regarding employment, consulting or other arrangements to be effective following the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this AgreementMerger.
(b) With Following the Closing Date, Buyer may choose to maintain any or all of Company Benefit Plans in its sole discretion. However, for any Company Benefit Plan terminated for which there is a comparable Buyer Benefit Plan of general applicability, Company Employees shall be entitled to participate in such Buyer Benefit Plan to the same extent as similarly-situated employees of Buyer or Buyer Bank (it being understood that inclusion of Company Employees in the Buyer Benefit Plans may occur, if at all, at different times with respect to any "employee benefit plan" as defined in Section 3(3) different plans). Nothing herein shall limit the ability of ERISA maintained by Parent Buyer or Buyer Bank to amend or terminate any of its Subsidiaries, excluding both the Company Benefit Plans or Buyer Benefit Plans in accordance with their terms at any retiree healthcare plans or programs maintained by Parent time.
(c) If employees of Company or any of its Subsidiaries and any equity compensation arrangements maintained by Parent become eligible to participate in a medical, dental or any health plan of its Subsidiaries (collectively, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as Buyer or Buyer Bank upon termination of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service such plan of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if Buyer shall make all commercially reasonable efforts to cause each such service were with Parent, for vesting and eligibility purposes (but not for plan to (i) purposes waive any preexisting condition limitations to the extent such conditions are covered under the applicable medical, health or dental plans of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan Buyer or Buyer Bank, (ii) benefit accrual purposeshonor under such plans, except for vacationother than plans funded with insurance, if applicableany deductible, co-payment and out-of-pocket expenses incurred by the employees and their beneficiaries during the portion of the calendar year prior to such participation and (iii) in waive any Parent Benefit Plan in waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such Company Continuing Employees may be eligible to participate employee on or after the Effective Time; , in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous Plan prior to the Effective Time for the plan year in which the Effective Time occurs.
(iiid) Continuing With respect to each Company Benefit Plan subject to Section 409A of the Code, Company agrees to amend each such plan or cause each such plan to be amended to the extent, in Buyer's reasonable judgment, such an amendment is necessary to comply with Section 409A of the Code (or to cause such plan, in whole or in part, to avoid the application of Section 409A of the Code by preserving the terms of such plan, and the law in effect, for benefits earned and vested as of December 31, 2004) prior to the earlier of the Effective Time or the deadline imposed by the IRS. Such amendments shall honor all consulting be provided to Buyer and its counsel at least ten days prior to their proposed adoption by Company or advisory agreement previously entered intoCompany Bank and shall be subject to the prior approval of Buyer, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service which shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Planunreasonably withheld.
(ce) This Section 5.07 shall be binding upon and inure solely to During the benefit of each one-year period commencing as of the parties date on which the Effective Time occurs, Buyer shall honor with respect to Company employees who commence employment as of the Effective Time with Buyer as contemplated by this AgreementAgreement the Severance Pay Plan of Slade's Ferry Bank (the "Company Severance Pay Plan") in connection wixx xxx termination of employment of any Company Employee (excluding any employee who is party to an employment agreement, change-in-control agreement or any other agreement which provides for severance payments), in such amounts, at such times and nothing upon such conditions as set forth in the Company Severance Pay Plan with respect to involuntary employment terminations for reasons other than cause that occur.
(f) Nothing in this Section 5.075.11, express expressed or implied, shall is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.11. Without limiting the foregoing, no provision of this Section 5.11 will create any third party beneficiary rights in any current or former employee, director or consultant of Company or its Subsidiaries in respect of continued employment (or resumed employment) or any other matter. Nothing contained herein, express or implied in this Section 5.11 is intended (i) shall be construed to establishamend any Benefit Plan, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter interfere with Buyer's or limit the ability of the Surviving Corporation, Parent or any of their respective Affiliates Entity's right from and after the Closing Date to amend, modify amend or terminate any Benefit Plan or (iii) interfere with Buyer's or the Surviving Entity's right from and after the Effective Time to terminate the employment or provision of services by any director, employee, independent contractor or consultant.
(g) Upon Buyer's reasonable request, Company shall cooperate with Buyer to facilitate the termination, on or after the Closing Date, of each Company Benefit Plan that is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA that is subject to Title IV of ERISA, program, agreement provided that such termination is effected in a manner that does not adversely affect such plan's qualification under Sections 401(a) and 501(a) of the Code. Buyer and Company shall use reasonable best efforts to effect such a termination and the associated distribution of all assets of each such terminated Company Benefit Plan. In no event shall the assets of any Company Benefit Plan terminated pursuant to this Section 5.16(g) be distributed in any form or arrangement at any time assumed, established, sponsored or maintained not approved in writing in advance by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverBuyer.
(dh) With respect Company shall use reasonable best efforts to matters described cause the "employee welfare benefit plan," within the meaning of Section 3(1) of ERISA, known as the Severance Pay Plan of Slade's Ferry Bank to be administered at all times in accordance with xxx xxxuirements for exemption from Section 409A of the Code available under Treasury Regulation section 1.409A-1(b)(9)(iii).
(i) Buyer and Company shall jointly develop and implement within thirty (30) days from the date of this Section 5.07, the Agreement retention arrangements for such Company will not send any written notices or other written communication materials to Bank employees as Buyer and Company Employees without the prior written consent of Parentmay mutually agree.
Appears in 1 contract
Employees; Benefit Plans. (a) During Following the period commencing Closing Date, the Purchasers may choose to maintain any or all of Company Benefit Plans in their sole discretion. However, for any Company Benefit Plan terminated for which there is a comparable benefit plan of general applicability at the Effective Time and ending on Purchaser or the date which is FIVE Purchaser Parent or any affiliate thereof (each, a “5Purchaser Benefit Plan”) months from the Effective Time (or if earlier), the date Purchasers and any such affiliate shall take all reasonable action so that employees of the employee's termination Company shall be entitled to participate in such Purchaser Benefit Plan to the same extent as similarly-situated employees of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each Purchasers or the applicable affiliate (it being understood that inclusion of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after in the Effective Time (collectivelyPurchaser Benefit Plans may occur at different times with respect to different plans), provided, however, that nothing contained herein shall require the Purchasers or any affiliate thereof to make any grants to any former employee of the Company under any discretionary equity compensation plan of the Purchaser, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Purchaser Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent affiliate thereof. The Purchasers shall cause each Purchaser Benefit Plans") Plan in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service employees of the Company Continuing Employees with are eligible to participate due to the termination of an existing Company or any Benefit Plan to take into account for purposes of its Subsidiaries, as eligibility and vesting under the case may be as if such service were with Parent, for vesting and eligibility purposes Purchaser Benefit Plans (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (iiaccrual) benefit accrual purposesthe service of such employees with the Company to the same extent as such service was credited for such purpose by the Company, except for vacationprovided, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits. Nothing herein shall limit the ability of the Purchasers to amend or terminate any of the Company Benefit Plans in accordance with their terms at any time, provided, however, that the Purchasers shall continue to maintain the Company Benefit Plans (Bother than stock-based or incentive plans) for which there is a comparable Purchaser Benefit Plan until the Company employees are permitted to participate in the Purchaser Benefit Plans.
(b) If employees of the Company become eligible to participate in a medical, dental or health plan of the Purchaser, the Purchaser Parent or any affiliate thereof upon the termination of such service was not recognized plan of the Company, the Purchasers or the applicable affiliate shall take commercially reasonable efforts to cause each such plan to (i) waive any preexisting condition limitations to the extent such conditions are covered under the corresponding applicable medical, health or dental plans of the Purchaser, the Purchaser Parent or the applicable affiliate, (ii) honor under such plans any deductible, co-payment and out-of-pocket expenses incurred by the employees and their beneficiaries during the portion of the calendar year prior to such participation and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Closing Date, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous Company Employee PlanBenefit Plan prior to the Closing Date.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever[Reserved].
(d) With respect All employees of the Company as of the Closing Date shall become employees of the Surviving Corporation as of the Closing Date. Subject to matters described in this Section 5.076.09(e) below, the Purchasers shall have no obligation to continue the employment of any such person and nothing contained herein shall give any employee of the Company the right to continue employment with the Purchaser, the Purchaser Parent or the Surviving Corporation after the Closing Date.
(e) On the Closing Date (i) the Purchaser, the Company will not send any written notices or other written communication materials and Jxxxxx Xxxxxxxx shall enter into a Consulting Agreement substantially in the form of Annex C hereto, and (ii) the Purchaser, the Company and Sxxxx X. Xxxxxxxx shall enter into an Employment Agreement substantially in the form of Annex D hereto, in each case, to Company Employees without be effective as of the prior written consent of ParentClosing Date.
Appears in 1 contract
Employees; Benefit Plans. (a) During For a period of one year following the period commencing at Closing Date (the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries"CONTINUATION PERIOD"), Parent shall cause the Surviving Corporation to provide Company Employees (other than those employees covered by a collective bargaining agreement) who are employed by the Company or its Subsidiaries as of the Effective Time ("ACTIVE EMPLOYEES") with compensation and each of its Subsidiariesbenefits that are no less favorable in the aggregate, determined on an individual basis, as applicablethose provided under the Company Benefit Plans in effect at the Effective Time; PROVIDED, HOWEVER, that nothing herein shall prevent the amendment or termination of any specific plan, program or arrangement, require that the Surviving Corporation provide or permit investment in the securities of Parent or the Surviving Corporation or interfere with the Surviving Corporation's right or obligation to make such changes as are necessary to comply with applicable law. Notwithstanding anything to the contrary set forth herein, nothing herein shall preclude the Surviving Corporation from terminating the employment of any Active Employee for any reason for which the Company could have terminated such person prior to the Effective Time.
(b) Parent and its Affiliates shall honor all Company Benefit Plans (including, without limitation, any severance, change of control and similar plans and agreements) in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such Company Benefit Plans and except as provided herein. Notwithstanding the foregoing, on and after the Effective Time, Parent and its Affiliates shall cause the Surviving Corporation to permit those class B directors who are in the Company's service as such on the date hereof, to direct, in accordance with Company policy as in effect on the date hereof, the donation of complimentary hotel room stays to tax-exempt organizations in the amount of no more than $350,000 in the aggregate. During the Continuation Period, Parent shall provide all Active Employees who suffer a qualifying termination of employment with severance benefits no less favorable than those that would have been provided to such Active Employees under the employees Company's severance policy as in effect immediately prior to the Effective Time.
(c) For all purposes under the employee benefit plans of the Company Parent and its Subsidiaries who remain employed immediately affiliates providing benefits to any Active Employees after the Effective Time (collectively, the "Company Continuing EmployeesNEW PLANS") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by each Active Employee shall be credited with his or her years of service with the Company and its Subsidiaries on affiliates before the date of this Agreement.
Effective Time (b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent including predecessor or acquired entities or any of other entities for which the Company and its Subsidiariesaffiliates have given credit for prior service), excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectivelyto the same extent as such Active Employee was entitled, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of before the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if to credit for such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent similar or comparable Company Benefit Plan that is a defined benefit pension plan or Plans (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition credit would result in a duplication of benefits). In addition, and without limiting the generality of the foregoing: (i) each Active Employee immediately shall be eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or comparable Company Benefit Plan in which such Active Employee participated immediately before the Effective Time (such plans, collectively, the "OLD PLANS"); and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Active Employee, Parent shall cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Active Employee and his or (B) her covered dependents, and Parent shall cause any eligible expenses incurred by such service was not recognized under Active Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Employee's participation in the corresponding Company New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Active Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(cd) This Section 5.07 shall be binding upon Parent and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto Company acknowledge and agree that all provisions contained herein with respect to employees are included for the terms set forth in this Section 5.07 sole benefit of Parent and the Company and shall not create any right (i) in any other Person, including any employees, former employees, any participant in any Company Employee Benefit Plans or any other Person beneficiary thereof or (ii) to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (a) During Except with regard to employees of the Company that Seller terminates during the first forty five (45) days after Closing, during the period commencing at the Effective Time Closing and ending on the date which is FIVE three (“5”3) months from the Effective Time Closing (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiariesthe Company), Parent Buyer shall and shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, Company to provide the employees of the Company and its Subsidiaries each Employee who remain remains employed immediately after the Effective Time Closing (collectively, the "Company Continuing EmployeesEmployee") with with: (i) base salary, salary or hourly wages which are no less than the base salary or hourly wages provided by the Company immediately prior to the Closing; (ii) target bonus opportunities (excluding equity-based compensation), and employee benefits that areif any, in the aggregate, which are no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits ) provided by the Company immediately prior to the Closing; (iii) retirement and welfare benefits that are no less favorable in the aggregate than those provided by the Company or its Subsidiaries on affiliates immediately prior to the date of this AgreementClosing; and (iv) severance benefits that are no less favorable than the practice, plan or policy in effect for such Company Continuing Employee immediately prior to the Closing.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent Buyer Benefit Plans") in which any Company Continuing Employees will participate effective as of the Effective TimeClosing, Parent Buyer shall, or shall cause the Surviving Corporation Company to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with ParentBuyer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Company Employee Benefit Plan.
(c) This Section 5.07 5.02 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.075.02, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.02. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 5.02 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving CorporationCompany, Parent Buyer or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Stock Purchase Agreement (Apricus Biosciences, Inc.)
Employees; Benefit Plans. (a) During Effective as of the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlierClosing, the date Company shall terminate the employment of the employee's termination of employment with Parent Xx Xxxxxxx, Xxxx Xxxxxxxxx and its Subsidiaries), Parent Xxxxx Xxxxx. HBC shall cause the Surviving Corporation Company to continue to maintain, and each of its Subsidiaries, to continue to cover individuals who are employed by the Company as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time Closing Date (collectively, the "“Company Continuing Employees"”) with base salaryunder, target bonus opportunities (excluding equity-based compensation)the Company’s group health, dental and employee benefits that are, vision plans in effect on the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by Closing Date. At such time as the Company and its Subsidiaries on Continuing Employees become employees of HBC, HBC shall take all reasonable action so that Company Continuing Employees shall be entitled to participate in each employee benefit plan, program or arrangement of HBC of general applicability to the date Company Continuing Employee (the “HBC Benefit Plans”) to the same extent as similarly-situated employees of this AgreementHBC (it being understood that inclusion of Company Continuing Employees in HBC Benefit Plans may occur at different times with respect to different plans.
(b) With respect To the extent that a Continuing Employee becomes eligible to any "participate in an employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent or any of its SubsidiariesHBC, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or HBC shall cause such employee benefit plan to recognize the Surviving Corporation to, recognize all service of the Company such Continuing Employees Employee with the Company or any its Subsidiaries for purposes of its Subsidiarieseligibility, as the case may be as if such service were with Parentparticipation, for vesting and eligibility purposes (but benefit accrual under such employee benefit plan of HBC; provided, however, that such recognition of service shall not for (i) purposes operate to duplicate any benefits of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or Continuing Employee with respect to the same period of service, (ii) benefit accrual purposesapply for purposes of any retiree medical plans, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; or (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to apply for purposes of participation and vesting in the extent that ESOP Plan (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plandefined below).
(c) This Section 5.07 shall Continuing Employees who become employees of HBC will be binding upon and inure solely eligible to participate in the Heritage Commerce Corp ESOP Plan (“ESOP Plan”) in accordance with the terms of the ESOP Plan. The Company acknowledges that no contributions are currently being made to the ESOP Plan, and agrees that there is no obligation to make or continue contributions to the ESOP Plan.
(d) When any Continuing Employee becomes eligible to participate in any HBC Benefit Plan that provides medical, hospitalization, vision or dental benefits, HBC, as applicable, shall use reasonable commercial efforts provided, however, that HBC shall not be obligated to incur any additional premium or additional expense to cause the appropriate sponsor to provide that (i) any pre-existing condition limitations or eligibility waiting periods under such HBC Benefit Plan be waived with respect to such Continuing Employee and his or her covered dependents to the extent such limitation would have been waived or satisfied under the Company employee benefit plan in which such Continuing Employee participated immediately prior to the Closing, and (ii) recognize any health expenses incurred by such Continuing Employee and his or her covered dependents in the year that includes the Closing Date (or, if later, the year in which such Continuing Employee is first eligible to participate) for purposes of each any applicable deductible and annual out-of-pocket expense requirements under any such HBC Benefit Plan.
(e) The Company shall take all actions necessary and appropriate to maintain the Company 401(k) Plan as of the Closing Date. At such time as the Continuing Employees become employees of HBC, they will be eligible to participate in the Heritage Commerce Corp 401(k) plan with past service with the Company credited.
(f) The provisions of this Section 6.08 are solely for the benefit of the parties to this Agreement, and nothing in this Section 5.07, express no current or implied, shall confer upon former employee or any other Person individual associated therewith shall be regarded for any rights or remedies of any nature whatsoever under or by reason purpose as a third-party beneficiary of this Section 5.07Agreement. Nothing contained herein, express or implied In no event shall the terms of this Agreement be deemed to (i) shall be construed to establish, amend or modify any Company Benefit Plan or any “employee benefit plan” as defined in Section 3(3) of ERISA, or any other benefit plan, program, agreement or arrangement maintained or sponsored by HBC or the Company, (ii) shall alter or limit the ability of HBC (including, after the Surviving CorporationClosing Date, Parent or any of their respective Affiliates the Company and its Subsidiaries) to amend, modify or terminate any Company Benefit Plan or HBC Benefit Plan), employment agreement or any other benefit or employment plan, program, agreement or arrangement at after the Closing Date, or (iii) confer upon any time assumedcurrent or former employee, establishedofficer, sponsored director or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create consultant any right in any Company Employee to employment or any other Person to any continued employment or continued service with HBC (including, following the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07Closing Date, the Company will not send and its Subsidiaries), or constitute or create an employment agreement with any written notices or other written communication materials to Company Employees without the prior written consent of Parentemployee.
Appears in 1 contract
Employees; Benefit Plans. (a) During the For a period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from of not less than one year following the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries“Continuation Period”), Parent shall, or shall cause the Surviving Corporation or any of their respective Affiliates to, provide to each individual who, immediately prior to the Effective Time is an employee of the Company or any of its Subsidiaries (each, an “Employee”) (i) a salary or hourly wage rate that is not less than that provided to such Employee immediately prior to the Effective Time, (ii) incentive pay opportunities, including bonus and commission opportunities, but not including equity and equity-based awards that are no less favorable than those provided to such Employee immediately prior to the Effective Time, and (iii) other compensation and employee benefits (excluding equity and equity-based awards which will remain discretionary) that are no less favorable in the aggregate, determined on an individual basis, than those provided to such Employee under the compensation and benefit plans, programs, policies, agreements and arrangements of the Company and its Subsidiaries in effect immediately prior to the Effective Time. This Section 5.5(a) shall not apply to Employees whose terms and conditions of employment are governed by a collective bargaining or similar agreement, in which case the terms of the applicable collective bargaining or similar agreement shall apply.
(b) Parent shall, or shall cause the Surviving Corporation and each of its Subsidiariestheir respective Affiliates to, as applicablehonor all Company Benefit Plans (including all severance, to provide change of control and similar plans and agreements, including the employees arrangements set forth on Section 5.5(b) of the Company and its Subsidiaries who remain employed Disclosure Letter) in accordance with their terms as in effect immediately after prior to the Effective Time (collectivelyTime, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect subject to any "employee benefit plan" amendment or termination thereof that may be permitted by such Company Benefit Plans and except as defined provided herein. Notwithstanding the foregoing, for the later of the duration of the Continuation Period or the remaining term of any individual employment, severance or separation agreement in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of effect immediately prior to the Effective Time, Parent shall, or shall cause the Surviving Corporation or their respective Affiliates to, recognize all service provide each Employee who suffers a termination of employment under circumstances that would have given the Employee a right to severance payments and benefits under the Company’s or any of the Company’s Subsidiaries’ severance policy or individual employment, severance or separation agreement or other arrangement in effect immediately prior to the Effective Time (each, a “Company Continuing Employees Severance Plan”) with severance payments and benefits no less favorable than those that would have been provided to such Employee under any Company Severance Plan.
(c) For all purposes under all employee benefit plans of Parent, the Surviving Corporation and their respective Affiliates providing benefits to any Employee after the Effective Time (the “New Plans”), each Employee shall receive full credit for such Employee’s years of service with the Company and its Subsidiaries before the Effective Time (including predecessor or acquired entities or any of other entities for which the Company and its SubsidiariesSubsidiaries have given credit for prior service), to the same extent as the case may be as if such service were with ParentEmployee was entitled, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible prior to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that credit for such service shall not be recognized under any similar or comparable Company Benefit Plan (except to the extent that (A) such recognition credit would result in a duplication of benefits accrual of benefits). In addition, where applicable, and without limiting the generality of the foregoing: (i) at the Effective Time, each Employee shall be immediately eligible to participate, without any waiting time, in each New Plan to the extent such waiting time was satisfied under a similar or comparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (Bsuch plans, collectively, the “Old Plans”), (ii) Parent shall cause all pre-existing condition exclusions or limitations and actively-at-work requirements of each New Plan to be waived or satisfied for such service was not recognized Employee and his or her covered dependents to the extent waived or satisfied under the analogous Old Plan as of the Effective Time and (iii) Parent shall cause all eligible expenses incurred by each Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Employee’s participation in the corresponding Company New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(cd) This Section 5.07 shall be binding upon and inure solely With respect to any earned but unused vacation or other paid time off to which any Employee is entitled pursuant to the benefit vacation or other paid time off policy or individual agreement or other arrangement applicable to such Employee immediately prior to the Effective Time (the “Vacation/PTO Policy”), Parent shall, or shall cause the Surviving Corporation or any of each their respective Affiliates to, (i) allow such Employee to use such earned vacation or other paid time off in accordance with the Vacation/PTO Policy and (ii) if any Employee’s employment terminates during the Continuation Period under circumstances entitling the Employee to severance pay under the Company Severance Plan, pay the Employee, in cash, an amount equal to the value of the parties to this Agreement, and nothing earned vacation or other paid time off.
(e) Nothing in this Section 5.075.5, whether express or implied, shall confer upon any other Person current or former employee of the Company, Parent, the Surviving Corporation or any of their respective Affiliates, any rights or remedies including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Section 5.075.5. Nothing contained herein, express or implied (i) shall be construed No provision of this Section 5.5 is intended to establishmodify, amend or modify create any employee benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability plan of the Company, Parent, Surviving Corporation, Parent Corporation or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.Affiliates
Appears in 1 contract
Samples: Merger Agreement (Air Methods Corp)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE twelve (“5”12) months from the Effective Time (or if earlier, the date of the employee's ’s termination of employment with Parent Buyer and its Subsidiaries), Parent Buyer shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "“Company Continuing Employees"”) with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "“employee benefit plan" ” as defined in Section 3(3) of ERISA maintained by Parent Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent Buyer or any of its Subsidiaries and any equity compensation arrangements maintained by Parent Buyer or any of its Subsidiaries (collectively, "Parent “Buyer Benefit Plans"”) in which any Company Continuing Employees will participate effective as of the Effective Time, Parent Buyer shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with ParentBuyer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Buyer Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent Buyer or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent Buyer or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverwhatsoever other than as provided in Section 5.07(a).
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of ParentBuyer.
Appears in 1 contract
Samples: Merger Agreement (Sajan Inc)
Employees; Benefit Plans. (a) During the period commencing at Following the Effective Time and ending Time, FBMS shall maintain or cause to be maintained employee benefit plans for the benefit of employees who are full time employees of HSBI on the date which is FIVE (“5”) months from Closing Date and who become employees of FBMS as of the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to “Covered Employees”) that provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that arewhich, in the aggregate, are substantially comparable to the employee benefits and compensation opportunities, including participation in employee stock ownership plans and retirement plans, that are made available on a uniform and non-discriminatory basis to similarly situated employees of FBMS; provided, however, that in no less favorable than event shall any Covered Employee be eligible to participate in any closed or frozen plan of FBMS. FBMS shall give the base salaryCovered Employees credit for their prior service with HSBI (i) for purposes of eligibility (including initial participation and eligibility for current benefits) and vesting under any qualified or non-qualified employee benefit plan maintained by FBMS and in which Covered Employees may be eligible to participate and (ii) for all purposes under any welfare benefit plans, target bonus opportunities vacation plans (excluding equity-based compensationalthough FBMS may consider current vacation benefits provided to such employees by HSBI), severance plans and employee benefits provided similar arrangements maintained by the Company and its Subsidiaries on the date of this AgreementFBMS.
(b) With respect to any "employee benefit plan of FBMS that is a health, dental, vision or other welfare plan in which any Covered Employee is eligible to participate, for the plan year in which such Covered Employee is first eligible to participate, FBMS shall use its commercially reasonable efforts to (i) cause any pre-existing condition limitations, eligibility waiting periods or evidence of insurability requirements under such FBMS plan to be waived with respect to such Covered Employee and his or her covered dependents to the extent such condition was or would have been covered under the HSBI Benefit Plan in which such Covered Employee participated immediately prior to the Effective Time, and (ii) recognize any health, dental, vision or other welfare expenses incurred by such Covered Employee in the year that includes the Closing Date (or, if later, the year in which such Covered Employee is first eligible to participate) for purposes of any applicable deductible and annual out-of-pocket expense requirements under such health, dental, vision or other welfare plan.
(c) Following the Effective Time, The First shall credit each Covered Employee with an amount of paid time off equal to such Covered Employee’s accrued but unused paid time off at Heritage Southeast Bank of the Effective Time (“Carryover PTO”), provided that The First may allocate the Carryover PTO and between vacation leave and sick leave in its discretion.
(d) HSBI shall cause Heritage Southeast Bank to take all necessary actions to terminate in the Heritage Southeast Bank 401(k) Plan (the “Heritage Southeast Bank 401(k) Plan”), effective as the date immediately preceding the Effective Time of the Merger, subject to the occurrence of the Effective Time. HSBI shall provide FBMS with evidence that the Heritage Southeast Bank 401(k) Plan has been terminated and provide copies of the appropriate resolutions (the form and substance of which shall be subject to review and approval by FBMS, which will not be unreasonably withheld) not later than 5 days preceding the Effective Time. The accounts of all participants and beneficiaries in the Heritage Southeast Bank 401(k) Plan shall become fully vested upon termination of such plan. FBMS shall use commercially reasonable efforts to cause its 401(k) plan, at the discretion of the plan administrator for the FBMS 401(k) Plan, to accept rollovers of Covered Employees’ eligible rollover distributions from the Heritage Southeast Bank 401(k) Plan, to the extent properly elected by Covered Employees who become participants in FBMS’ 401(k) plan.
(e) Prior to the Effective Time, HSBI shall take, and shall cause its Subsidiaries to take, all actions requested in writing at least ten (10) days prior to Closing by FBMS that may be necessary or appropriate to, conditioned on the occurrence of the Effective Time, (i) cause one or more HSBI Benefits Plans not covered above to terminate as of the Effective Time, or as of the date immediately preceding the Effective Time, (ii) cause benefit accruals and entitlements under any HSBI Benefit Plan to cease as of the Effective Time, or as of the date immediately preceding the Effective Time, (iii) cause the continuation on and after the Effective Time of any contract, arrangement or insurance policy relating to any HSBI Benefit Plan for such period as may be requested by FBMS, or (iv) facilitate the merger of any HSBI Benefit Plan into any employee benefit plan maintained by FBMS. Additionally, HSBI and Heritage Southeast Bank will take any and all actions reasonably requested by FBMS related to ensuring the compliance of all HSBI Benefit Plans with applicable law, including filing any necessary “top hat” filings or corrections. All resolutions, notices, or other documents issued, adopted or executed in connection with the implementation of this Section 5.11(e) shall be subject to FBMS’s reasonable prior review and approval, which shall not be unreasonably withheld, conditioned or delayed.
(f) Any employee of HSBI or Heritage Southeast Bank that becomes an employee of FBMS or The First at the Effective Time who (i) is terminated within one year following the Effective Time (other than for cause, death, disability, normal retirement or voluntary resignation), and (ii) is not otherwise entitled to receive contractual severance, change in control, or similar benefits shall receive a severance payment calculated in accordance with the policy set forth on FBMS Disclosure Schedule 5.11(f).
(g) Nothing in this Section 5.11 shall be construed to limit the right of FBMS (including, following the Closing Date, HSBI) to amend or terminate any HSBI Benefit Plan or other employee benefit plan" as defined , to the extent such amendment or termination is permitted by the terms of the applicable plan, nor shall anything in this Section 3(35.11 be construed to require FBMS (including, following the Closing Date, HSBI) to retain the employment of ERISA maintained any particular Covered Employee for any fixed period of time following the Closing Date, and the continued retention (or termination) by Parent FBMS of any Covered Employee subsequent to the Effective Time shall be subject in all events to FBMS’s normal and customary employment procedures and practices, including customary background screening and evaluation procedures, and satisfactory employment performance.
(h) For purposes of this Section 5.11, (i) “employees of HSBI” shall include employees of HSBI or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any (ii) “employees of its Subsidiaries and any equity compensation arrangements maintained by Parent or any FBMS” shall include employees of its Subsidiaries (collectively, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company FBMS or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company all references to HSBI shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of include each of the parties to this AgreementSubsidiaries of HSBI, and nothing in this Section 5.07, express or implied, (iv) all references to FBMS shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability include each of the Surviving Corporation, Parent or any Subsidiaries of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.FBMS
Appears in 1 contract
Employees; Benefit Plans. (a) During the period commencing at the Effective Time Closing and ending on the date which is FIVE (“5”) months from the Effective Time December 31, 2019 (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiariesany Company), Parent Buyer shall cause the Surviving Corporation and each of its SubsidiariesCompany to, as applicable, to provide the employees of the Company and its Subsidiaries each Employee who remain remains employed immediately after the Effective Time Closing (collectively, the "Company Continuing EmployeesEmployee") with with: (i) base salary, target salary or hourly wages that are substantially similar to the base salary or hourly wages provided by the applicable Company immediately prior to the Closing; (ii) bonus opportunities (excluding equity-based compensation), and employee benefits if any, that are, in are substantially similar to the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), ) provided by applicable Company immediately prior to the Closing; (iii) retirement and employee welfare benefits that are substantially similar in the aggregate to those provided by the applicable Company immediately prior to the Closing; and its Subsidiaries on (iv) severance benefits that are substantially similar to the date of this Agreementpractice, plan or policy in effect for the Company Continuing Employee immediately prior to the Closing.
(b) Credit shall be given to all Company Continuing Employees and their eligible dependents and beneficiaries for all past service with the Companies and any premiums, co-payments and deductibles paid on or prior to the Closing in satisfying any deductible or out-of-pocket expense requirements under any new group medical plan which may be adopted by Buyer or its Affiliates following the Closing, to the extent allowed under applicable Law and except that the foregoing shall not apply with respect to the extent that such credit would result in any duplication of benefits.
(c) With respect to any "employee benefit plan" as defined in , whether qualified or non-qualified, a pension or welfare benefit plan under Section ERISA 3(3) of ERISA or otherwise that is maintained by Parent Buyer or its Affiliates subsequent to the Closing (and that is a plan other than a plan in place at any Company as of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries Closing) (collectively, "Parent Buyer Benefit Plans") in which any Company Continuing Employees will participate effective as of shall participate, Buyer shall (to the Effective Time, Parent shall, or shall cause extent allowed under applicable Law) amend to the Surviving Corporation to, extent necessary each such Buyer Benefit Plan to recognize all past service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be Companies as if such service were with ParentBuyer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that that: (Ai) such recognition would result in a duplication of benefits or benefits; (Bii) such service was not recognized under the corresponding Company Employee Benefit Plan; or (iii) such service would accelerate accrual of benefits in any defined benefit pension plan subject to ERISA Title IV.
(cd) This Section 5.07 6.04 shall be binding upon and inure solely to the benefit of each of the parties to this AgreementParties, and nothing in this Section 5.076.04, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.076.04. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto Parties acknowledge and agree that the terms set forth in this Section 5.07 6.04 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporationany Company, Parent Buyer or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverAffiliates.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Share Purchase Agreement (Vse Corp)
Employees; Benefit Plans. (a) During the period commencing at Following the Effective Time and ending Time, for a period the earlier of (i) six months or (ii) as long as an employee of DBI is a Covered Employee (as defined below), BFC shall maintain or cause to be maintained employee benefit plans for the benefit of employees who are full time employees of DBI on the date which is FIVE Closing Date and who become full-time employees of BFC (“5Covered Employees”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to that provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that arewhich, in the aggregate, no less favorable than are substantially comparable to the base salary, target bonus opportunities (excluding equityemployee benefits and cash-based compensation)compensation opportunities that are made available on a uniform and non-discriminatory basis to similarly situated employees of BFC; provided, however, that in no event shall any Covered Employee be eligible to participate in any closed or frozen plan of BFC. BFC shall give the Covered Employees credit for their prior service with DBI for purposes of eligibility (including initial participation and eligibility for current benefits) and vesting under any employee benefits provided benefit plan maintained by the Company BFC and its Subsidiaries on the date of this Agreementin which Covered Employees may be eligible to participate.
(b) With respect to any "employee benefit plan of BFC that is a health, dental, vision or other welfare plan in which any Covered Employee is eligible to participate, for the plan year that includes the Closing, if Covered Employees are eligible to participate in such plans, BFC shall use its commercially reasonable efforts to cause any pre-existing condition limitations, eligibility waiting periods or evidence of insurability requirements under such BFC plan to be waived with respect to such Covered Employee and his or her covered dependents to the extent such condition was or would have been covered under the DBI Benefit Plan in which such Covered Employee participated immediately prior to the Effective Time.
(c) Following the Effective Time, Bank First shall credit each Covered Employee with an amount of paid time off equal to such Covered Employee’s accrued but unused paid time off at Denmark State Bank (“Carryover PTO”), provided that (i) Bank First may allocate the Carryover PTO and between vacation leave and sick leave in its discretion, and (ii) Carryover PTO shall be limited to 100 hours per year for hourly employees, and salaries employees will not be allowed any Carryover PTO.
(d) DBI shall cause Denmark State Bank to take all necessary actions to terminate the Denmark State Bank Retirement Savings Plan, effective as the date immediately preceding the date of the Effective Time of the Merger, subject to the occurrence of the Effective Time. DBI shall provide BFC with evidence that the Denmark State Bank Retirement Savings plan has been terminated and provide copies of the appropriate resolutions terminating the plan (the form and substance of which shall be subject to review and approval by BFC, which will not be unreasonably withheld) not later than three days prior to the Effective Time. The accounts of all participants and beneficiaries in the Denmark State Bank Retirement Savings Plan shall become fully vested upon termination of such plan.
(e) Prior to the Effective Time, DBI shall take, and shall cause its Subsidiaries to take, all actions requested by BFC that may be necessary or appropriate to, conditioned on the occurrence of the Effective Time, (i) cause one or more DBI Benefits Plans not covered above to terminate as of the Effective Time, or as of the date immediately preceding the Effective Time, (ii) cause benefit accruals and entitlements under any DBI Benefit Plan to cease as of the Effective Time, or as of the date immediately preceding the Effective Time, (iii) cause the continuation on and after the Effective Time of any contract, arrangement or insurance policy relating to any DBI Benefit Plan for such period as may be requested by BFC, or (iv) facilitate the merger of any DBI Benefit Plan into any employee benefit plan maintained by BFC. All resolutions, notices, or other documents issued, adopted or executed in connection with the implementation of this Section 5.11(e) shall be subject to BFC’s reasonable prior review and approval, which shall not be unreasonably withheld, conditioned or delayed.
(f) Except for any employee listed on DBI Disclosure Schedule 5.11(f), any employee of DBI or Denmark State Bank that becomes an employee of Bank First at the Effective Time who is terminated within six months following the Effective Time (other than for cause, death, disability, normal retirement or voluntarily resignation) shall receive a severance payment calculated in accordance with the policy set forth on BFC Disclosure Schedule 5.11(f).
(g) Following the Effective Time, BFC shall assume, honor and comply with all obligations set forth in the employment and change in control agreements listed on DBI Disclosure Schedule 3.15(l).
(h) Nothing in this Section 5.11 shall be construed to limit the right of BFC (including, following the Closing Date, DBI) to amend or terminate any DBI Benefit Plan or other employee benefit plan" as defined , to the extent such amendment or termination is permitted by the terms of the applicable plan, nor shall anything in this Section 3(35.11 be construed to require BFC (including, following the Closing Date, DBI) to retain the employment of ERISA maintained any particular Covered Employee for any fixed period of time following the Closing Date, and the continued retention (or termination) by Parent BFC of any Covered Employee subsequent to the Effective Time shall be subject in all events to BFC’s normal and customary employment procedures and practices, including customary background screening and evaluation procedures, and satisfactory employment performance.
(i) For purposes of this Section 5.11, (i) “employees of DBI” shall include employees of DBI or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any (ii) “employees of its Subsidiaries and any equity compensation arrangements maintained by Parent or any BFC” shall include employees of its Subsidiaries (collectively, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company BFC or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company all references to DBI shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of include each of the parties Subsidiaries of DBI (iv) all references to this Agreement, and nothing in this Section 5.07, express or implied, BFC shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability include each of the Surviving Corporation, Parent or any Subsidiaries of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverBFC.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Merger Agreement (Bank First Corp)
Employees; Benefit Plans. (a) During For a period of at least one (1) year following the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlierClosing Date, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent BNL shall, or shall cause the Surviving Corporation Entities or any of their respective Affiliates to, recognize all service provide (i) to each individual who, immediately before the OP Merger Effective Time was an employee of the Company Continuing Employees with the Company BRE or any of its Subsidiaries, including any individual on short-term disability leave immediately before the OP Merger Effective Time, and who became an employee of BNL OP upon the OP Merger Effective Time (each, a “Continuing Employee”), at least the same salary or hourly wage rate provided to such Continuing Employee immediately before the OP Merger Effective Time, (ii) to each Continuing Employee, at least the same short-term (annual or more frequent) cash bonus opportunity provided to such Continuing Employee immediately before the OP Merger Effective Time; and (iii) to each Continuing Employee, other employee benefits (excluding equity and equity based compensation, defined benefit pension benefits, early retirement benefits, and post-retirement medical benefits) that are substantially comparable in the aggregate to those provided to such Continuing Employee as of the case may date hereof.
(b) Notwithstanding anything to the contrary set forth herein, after the OP Merger Effective Time, nothing herein shall preclude the Surviving Entities from terminating the employment of any Continuing Employee for any lawful reason and neither BNL nor the Surviving Entities shall have any obligation to retain any employee or group of employees of BRE or any of its Subsidiaries.
(c) BNL shall, or shall cause the Surviving Entities and each of their respective Affiliates to, honor all severance, change in control and similar agreements as identified on Section 6.8(c) of the BRE Disclosure Schedules, in accordance with their terms as in effect as of the date hereof.
(d) Immediately prior to the Closing, with respect to each Continuing Employee who is eligible to receive an annual bonus with respect to the 2019 year (or any other bonus or cash-based incentive award with respect to any performance period in progress as of the Closing Date) (any such bonus or award, a “2019 Bonus”), BRE shall pay, or shall cause to be as if paid, to each such service were with ParentContinuing Employee, for vesting his or her 2019 Bonus in an amount to be determined by BRE in its sole discretion.
(e) With respect to any employee benefit plan or arrangement of BNL, the Surviving Entities and eligibility purposes their respective Affiliates, including severance and vacation or other paid-time off benefits made available to any Continuing Employee after the OP Merger Effective Time (but not for other than any equity plan) (the “New Plans”), BNL shall provide that (i) each Continuing Employee shall receive credit for such Continuing Employee’s years of service with BRE and/or its Subsidiaries before the OP Merger Effective Time (including predecessor or acquired entities or any other entities) for purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible eligibility to participate after the Effective Time; in and vesting thereunder (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized except to the extent that (A) such recognition credit would result in a duplication of accrual of benefits or with respect to New Plans created after the OP Merger Effective Time for which similarly situated employees of BNL or the applicable Affiliate do not receive past service credit), (Bii) to the extent commercially practicable, at the OP Merger Effective Time, any waiting time limitation in any New Plan is waived to the extent such service waiting time was not recognized satisfied under the corresponding Company similar or comparable BRE Benefit Plan in which such Continuing Employee Planparticipated immediately before the OP Merger Effective Time (such plans, collectively, the “Old Plans”), and (iii) to the extent commercially practicable, all pre-existing condition exclusions or limitations and actively-at-work requirements of each New Plan be waived or satisfied for such Continuing Employee and his or her covered dependents to the extent waived or satisfied under the analogous Old Plan as of the OP Merger Effective Time.
(cf) On the Closing Date, BNL OP shall pay, or cause to be paid, a bonus payment (each, an “Employee Success Sale Bonus”) to each of the recipients thereof in such proportionate amounts, as set forth in the Consideration Statement, equal to an aggregate amount equal to the Employee Success Sharing Pool Sale Participation Amount. Notwithstanding the foregoing, such Employee Success Sale Bonuses shall only be paid pursuant to this Section 6.8(f) to the extent that the Employee Success Sharing Pool Sale Participation Amount is equal to an amount in excess of $0.
(g) Promptly following an Earnout Trigger (but in any event, within five (5) Business Days of an Earnout Trigger), BNL OP shall pay, or cause to be paid, an Employee Success Sale Bonus to the recipients thereof in such proportionate amounts, as set forth in the Consideration Statement, equal to an aggregate amount equal to the Employee Success Sharing Pool Sale Earnout Participation Amount. Notwithstanding the foregoing, such Employee Success Sale Bonuses shall only be paid pursuant to this Section 6.8(g) to the extent that the Employee Success Sharing Pool Sale Earnout Participation Amount is equal to an amount in excess of $0.
(h) Following the execution of this Agreement, and to be effective no later than immediately prior to the Closing, BRE shall use commercially reasonable efforts to cause each of Xxx X. Xxxx, Xxxxxxxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxxx and Xxxx X. Xxxx to enter into an agreement (the “Existing Employment Termination Agreements”) with BRE to terminate the existing employment agreement between each such individual and BRE (unless, in the case of Xxxxx X. Xxxxxxxx, his existing employment with BRE has been assigned by BRE to a third party prior to Closing or has otherwise been terminated by BRE or him prior to Closing); provided, that nothing contained herein or in such Existing Employment Termination Agreements shall operate to release claims or rights of such individuals (or to release or preclude enforcement of claims or rights of such individuals) (i) arising under the Merger Agreement or any Ancillary Agreement; or (ii) arising from accrued but unpaid compensation (whether in bonus, salary or otherwise) and/or benefits, other than equity-based or equity-related compensation or benefits; or (iii) for indemnification, exculpation or advancement of expenses pursuant to the organizational documents of BRE and its Subsidiaries; or (iv) for reimbursement of business expenses incurred in the ordinary course of business in accordance with the policies and past practices of BRE and its Subsidiaries and which is owed to such individual at the time that such Existing Employment Termination Agreement becomes effective. BNL shall have the right to review in advance and comment upon the form of Existing Employment Termination Agreement and BRE shall take into account, in good faith, any such comments.
(i) This Section 5.07 shall be binding upon and inure 6.8 is solely to for the benefit of each of the parties to this Agreement, and nothing in this Section 5.076.8, whether express or implied, shall confer upon any other Person any rights current or remedies former employee, officer, director, manager or consultant of any nature whatsoever under or by reason of this Section 5.07. Nothing contained hereinBRE, express or implied (i) shall be construed to establishBNL, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent Entities or any of their respective Affiliates to amendor any beneficiary or dependent thereof, modify any rights or terminate any benefit planremedies, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create including any right in any Company Employee to employment or any other Person to any continued employment with the Surviving Corporationfor any specified period, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in . No provision of this Section 5.076.8 is intended to modify, amend or create any employee benefit plan of BRE, BNL, the Company will not send Surviving Entities or any written notices or other written communication materials to Company Employees without the prior written consent of Parenttheir respective Affiliates.
Appears in 1 contract
Employees; Benefit Plans. (a) During the period commencing at the Effective Time Closing and ending on the date which is FIVE (“5”) 12 months from after the Effective Time Closing (or if earlier, the date of the employee's ’s termination of employment with Parent and its Subsidiariesthe Company), Parent Buyer shall and shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, Company Group Entity to provide the employees of the Company and its Subsidiaries each Employee who remain remains employed immediately after the Effective Time Closing (collectively, the "“Company Continuing Employees"Employee”) with (other than those who sign the Employment Agreements) with: (i) base salary, salary or hourly wages which are no less than the base salary or hourly wages provided by such Company Group Entity immediately prior to the Closing; (ii) target bonus opportunities (excluding equity-based compensation), and employee benefits that areif any, in the aggregate, which are no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits ) provided by such Company Group Entity immediately prior to the Closing; (iii) retirement and welfare benefits that are substantially equivalent in the aggregate to those provided by such Company Group Entity immediately prior to the Closing; and its Subsidiaries on (iv) severance benefits that are substantially equivalent to the date of this Agreementpractice, plan or policy in effect for such Company Continuing Employee immediately prior to the Closing.
(b) Pursuant to the Transition Services Agreement, the Company Continuing Employees shall continue to participate in all employee benefit plans, programs, practices or arrangements of Seller or its Affiliates other than the Company Group Plans (collectively, the “Seller Plans”) until such time as described in the Transition Services Agreement, which shall not exceed the last day of the calendar month in which Closing occurs. Buyer shall not assume any Seller Plans and, after the Closing, shall have no obligations and shall have no liabilities with respect to any of the Seller Plans, except as provided in the Transition Services Agreement. Following the Closing, (i) Seller shall retain all responsibility for all Seller Plans and any and all liability related to the Seller Plans and (ii) Buyer, and the Company Group Entities and/or their successors shall retain or, as applicable, assume sponsorship of, and responsibility for all Company Group Plans and any and all liability related to the Company Group Plans. To the extent that an Employee is on an approved leave of absence and is not actively at work as of the Closing Date (each, an “LOA Employee”), such that he or she is not eligible to be covered under Buyer’s insured disability or life insurance benefits as of the Closing, then, as a temporary accommodation to Buyer, Seller agrees to use commercially reasonable efforts to continue the coverage of such employee in the Seller Plans for up to six months until such time as the individual returns to work, qualifies for long term disability benefits under the applicable Seller Plan or otherwise terminates employment. If any LOA Employee returns to active employment, Buyer will cause the Company or its Subsidiaries to hire such LOA Employee and treat such LOA Employee in a manner comparable to other Employees covered by this Section 6.02. Buyer will promptly reimburse Seller and its affiliates, on a monthly basis, for all out of pocket costs incurred in connection with providing the continued employment and continued benefit coverages set forth in this Section 6.02(b).
(c) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent “Buyer Benefit Plans"”) in which any Company Continuing Employees will participate effective as of following the Effective Timepost-Closing period provided in the Transition Services Agreement, Parent Buyer shall, or shall cause the Surviving Corporation each Company Group Entity to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with ParentBuyer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective TimeClosing Date; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (Ai) such recognition would result in a duplication of benefits benefits, (ii) such recognition would result in benefit accruals under a defined benefit plan or (Biii) such service was not recognized under the corresponding Benefit Plan. In addition, Buyer shall cause each Buyer Benefit Plan that is a health or welfare plan to (1) waive or cause to be waived any eligibility waiting periods, preexisting condition exclusions, limitations or restrictions or required physical examinations with respect to any Company Continuing Employee and his or her qualifying dependents, and (2) use commercially reasonable efforts to provide that all covered expenses incurred on or before the Closing Date but within the current plan year of such Buyer Benefit Plan by any Company Continuing Employee and his or her eligible dependents under a comparable Benefit Plan for the portion of the plan year occurring on or before the Closing Date shall be taken into account by Buyer Benefit Plan for purposes of satisfying applicable deductible, coinsurance and maximum out of pocket provisions applicable for such plan year under the Buyer Benefit Plan, provided Seller or the administrator of any applicable Benefit Plan provides to Buyer the data reasonably necessary for Buyer to comply with this clause (2).
(cd) As soon as practicable following the Closing Date, Buyer and Seller shall take all actions as may be necessary and appropriate to allow each Company Continuing Employee who is a participant in the Seller’s 401(k) Plan to be given the opportunity to elect to “roll over” his or her account in the Seller’s 401(k) Plan to a comparable retirement plan sponsored by Buyer, provided such “roll over” is in accordance with the provisions of such plans and applicable Law.
(e) This Section 5.07 6.02 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.076.02, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.076.02. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 6.02 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving CorporationCompany, Parent Buyer or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (axiv) During Prior to the Closing, First Guaranty Bancshares shall offer to employ and hire, effective as of but subject to the Closing, each PEO Employee on terms that are consistent with the requirements set forth in this Section 5.11(a) and the terms of the PEO Agreement as assigned to and assumed by First Guaranty Bancshares (such offers being, the "Offers"). Following the Closing, First Guaranty Bancshares shall, during the period commencing at the Effective Time Closing and ending on the date which that is FIVE twelve (“5”12) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time Closing Date, provide each PEO Employee who timely accepts an Offer and commences employment in accordance therewith (collectively, the "Company Continuing Transferred Employees") with (A) base salarysalary or hourly wages that are no less than the base salary or hourly wages provided to such Transferred Employee prior to the Closing, (B) target bonus opportunities (excluding equity-based compensation)that are no less than the target bonus opportunities provided to such Transferred Employee immediately prior to the Closing, if any, and (C) employee benefits benefit plans and perquisites that are, in the aggregate, are no less favorable than those in effect immediately prior to the base salary, target bonus opportunities Closing (excluding equity-based compensation), it being understood and agreed that continuation of employee benefits provided by and perquisites pursuant to the Company and its Subsidiaries PEO Agreement shall be deemed to be no less favorable for this purpose). Prior to the Closing, First Guaranty Bancshares shall be entitled to communicate with the PEO Employees in connection with the transfer of employment to First Guaranty Bancshares. Notwithstanding the foregoing, nothing in this Agreement shall, after the Closing, impose on the date of this AgreementFirst Guaranty Bancshares any continuing obligation to retain any Transferred Employee.
(bxv) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or First Guaranty Bancshares shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for assume (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan and all liability associated with vacation or other paid time off accrued prior to the Closing by the PEO Employees, other than Non-Transferred Employees, (ii) benefit accrual purposesall Lone Star Benefit Plans and employment-related liabilities with respect to the PEO Employees other than Non-Transferred Employees, except for vacationincluding all such liabilities arising from the employment or engagement of such PEO Employee (regardless of whether arising before, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate on, or after the Effective Time; Closing), (iii) Continuing Company shall honor all consulting liabilities arising from or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized relating to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of each of the parties to this PEO Agreement, and nothing in this Section 5.07, express (iv) all severance or implied, shall confer upon other termination payments or benefits that have or could become payable to any PEO Employee other Person any rights or remedies of any nature whatsoever under or than a Non-Transferred Employee by reason of this Section 5.07. Nothing contained herein, express his or implied (i) shall be construed to establish, amend her separation from service from Lone Star or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of their respective Affiliates to amend, modify or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained transactions contemplated by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.this
Appears in 1 contract
Employees; Benefit Plans. (a) During the period commencing at Following the Effective Time and ending Time, FBMS shall maintain or cause to be maintained employee benefit plans for the benefit of employees who are full time employees of BBI on the date which is FIVE (“5”) months from Closing Date and who become employees of FBMS as of the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to “Covered Employees”) that provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that arewhich, in the aggregate, are substantially comparable to the employee benefits and compensation opportunities, including participation in employee stock ownership plans and retirement plans, that are made available on a uniform and non-discriminatory basis to similarly situated employees of FBMS; provided, however, that in no less favorable than event shall any Covered Employee be eligible to participate in any closed or frozen plan of FBMS. FBMS shall give the base salaryCovered Employees credit for their prior service with BBI (i) for purposes of eligibility (including initial participation and eligibility for current benefits) and vesting under any qualified or non-qualified employee benefit plan maintained by FBMS and in which Covered Employees may be eligible to participate and (ii) for all purposes under any welfare benefit plans, target bonus opportunities vacation plans (excluding equity-based compensationalthough FBMS may consider current vacation benefits provided to such employees by BBI), severance plans and employee benefits provided similar arrangements maintained by the Company and its Subsidiaries on the date of this AgreementFBMS.
(b) With respect to any "employee benefit plan of FBMS that is a health, dental, vision or other welfare plan in which any Covered Employee is eligible to participate, for the plan year in which such Covered Employee is first eligible to participate, FBMS shall use its commercially reasonable efforts to (i) cause any pre-existing condition limitations, eligibility waiting periods or evidence of insurability requirements under such FBMS plan to be waived with respect to such Covered Employee and his or her covered dependents to the extent such condition was or would have been covered under the BBI Benefit Plan in which such Covered Employee participated immediately prior to the Effective Time and (ii) recognize any health, dental, vision or other welfare expenses incurred by such Covered Employee in the year that includes the Closing Date (or, if later, the year in which such Covered Employee is first eligible to participate) for purposes of any applicable deductible and annual out-of-pocket expense requirements under such health, dental, vision or other welfare plan.
(c) Following the Effective Time, The First shall credit each Covered Employee with an amount of paid time off equal to such Covered Employee’s accrued but unused paid time off at Beach Bank of the Effective Time (“Carryover PTO”), provided that The First may allocate the Carryover PTO and between vacation leave and sick leave in its discretion.
(d) BBI shall cause Beach Bank to take all necessary actions to terminate the Beach Bank 401(k) Plan (the “Beach Bank 401(k) Plan”), effective as the date immediately preceding the Effective Time of the Merger, subject to the occurrence of the Effective Time. BBI shall provide FBMS with evidence that the Beach Bank 401(k) Plan has been terminated and provide copies of the appropriate resolutions (the form and substance of which shall be subject to review and approval by FBMS, which will not be unreasonably withheld) not later than 5 days preceding the Effective Time. The accounts of all participants and beneficiaries in the Beach Bank 401(k) Plan shall become fully vested upon termination of such plan.
(e) Prior to the Effective Time, BBI shall take, and shall cause its Subsidiaries to take, all actions requested by FBMS that may be necessary or appropriate to, conditioned on the occurrence of the Effective Time, (i) cause one or more BBI Benefits Plans not covered above to terminate as of the Effective Time, or as of the date immediately preceding the Effective Time, (ii) cause benefit accruals and entitlements under any BBI Benefit Plan to cease as of the Effective Time, or as of the date immediately preceding the Effective Time, (iii) cause the continuation on and after the Effective Time of any contract, arrangement or insurance policy relating to any BBI Benefit Plan for such period as may be requested by FBMS, or (iv) facilitate the merger of any BBI Benefit Plan into any employee benefit plan maintained by FBMS. Additionally, BBI and Beach Bank will take any and all actions reasonably requested by FBMS related to ensuring the compliance of all BBI Benefit Plans with applicable law, including filing any necessary “top hat” filings or corrections. All resolutions, notices, or other documents issued, adopted or executed in connection with the implementation of this Section 5.11(e) shall be subject to FBMS’s reasonable prior review and approval, which shall not be unreasonably withheld, conditioned or delayed.
(f) Any employee of BBI or Beach Bank that becomes an employee of FBMS or The First at the Effective Time who (i) is terminated within one year following the Effective Time (other than for cause, death, disability, normal retirement or voluntary resignation), and (ii) is not otherwise entitled to receive contractual severance, change in control, or similar benefits shall receive a severance payment calculated in accordance with the policy set forth on FBMS Disclosure Schedule 5.11(f).
(g) Nothing in this Section 5.11 shall be construed to limit the right of FBMS (including, following the Closing Date, BBI) to amend or terminate any BBI Benefit Plan or other employee benefit plan" as defined , to the extent such amendment or termination is permitted by the terms of the applicable plan, nor shall anything in this Section 3(35.11 be construed to require FBMS (including, following the Closing Date, BBI) to retain the employment of ERISA maintained any particular Covered Employee for any fixed period of time following the Closing Date, and the continued retention (or termination) by Parent FBMS of any Covered Employee subsequent to the Effective Time shall be subject in all events to FBMS’s normal and customary employment procedures and practices, including customary background screening and evaluation procedures, and satisfactory employment performance.
(h) For purposes of this Section 5.11, (i) “employees of BBI” shall include employees of BBI or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any (ii) “employees of its Subsidiaries and any equity compensation arrangements maintained by Parent or any FBMS” shall include employees of its Subsidiaries (collectively, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company FBMS or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company all references to BBI shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 shall be binding upon and inure solely to the benefit of include each of the parties to this AgreementSubsidiaries of BBI, and nothing in this Section 5.07, express or implied, (iv) all references to FBMS shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability include each of the Surviving Corporation, Parent or any Subsidiaries of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverFBMS.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (a) During Subject to Section 5.26, HCC and HBC shall have the period commencing at right but not the obligation to offer employment immediately following the Effective Time to any and ending on the date which is FIVE (“5”) months from all persons who are employees of Presidio immediately before the Effective Time (employees who will be employed by HCC or if earlier, HBC are referred to as “Continuing Employees”). Presidio will provide HCC with information regarding such persons’ current employment arrangements with Presidio and will otherwise assist HCC and HBC in making such offers. Continuing Employees shall be offered salary or wage levels at least equal to the date salary or wage levels to which such employees were entitled to immediately before the Closing Date. Subject to the provisions of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiariesthis Section 5.11, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately soon as administratively practicable after the Effective Time Time, HCC shall take all reasonable action so that Continuing Employees shall be entitled to participate in each employee benefit plan, program or arrangement of HCC and HBC of general applicability (collectively, the "Company “HCC Benefit Plans”) to the same extent as similarly-situated employees of HCC and HBC (it being understood that inclusion of Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensationEmployees in HCC Benefit Plans may occur at different times as to different plans), and employee benefits except that are, coverage shall be continued under corresponding benefit plans of Presidio (to the extent such plans have not been terminated) until such employees are permitted to participate in the aggregateHCC Benefit Plans. Accordingly, HCC shall use reasonable commercial efforts to ensure that from the Closing Date through the next open enrollment date for a HCC or HBC group health, dental, and vision, Continuing Employees shall continue to be covered by Presidio’s group health, dental, and vision. All Presidio incentive or bonus plans shall remain in effect for the entirety of 2019 until all payouts under such plan have been made to all Presidio employees no less favorable later than the base salarylast day of the first quarter of 2020 (whether by Presidio or HCC, target bonus opportunities (excluding equity-based compensationas the case may be), and . Any Presidio employee benefits provided terminated as a result of the transactions contemplated by the Company Agreement prior to December 31, 2019 will be eligible for a pro-rata bonus under such incentive or bonus plans for time served during 2019. Payouts to such employees will be limited to the amount accrued by Presidio in its financial statements for such purpose. If the Closing occurs prior to December 31, 2019, such accrual will continue from Closing until December 31, 2019 at the monthly rate in place in the last full month prior to the month in which the Closing occurs. All accruals will be made in accordance with the terms of the plans and its Subsidiaries on the date of this Agreementconsistent with past practice.
(b) With respect To the extent that a Continuing Employee becomes eligible to any "participate in an employee benefit plan maintained by HCC or HBC, either of them, as applicable, shall cause such employee benefit plan to recognize the service of such Continuing Employee with Presidio for purposes of eligibility, participation, vesting and benefit accrual under such employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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") to the same extent that such service was recognized immediately before the Effective Time under a corresponding Presidio Employee Plan in which any Company such Continuing Employees will Employee was eligible to participate effective as of immediately before the Effective Time, Parent shall, or except that such recognition of service shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes operate to duplicate any benefits of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan Continuing Employee as to the same period of service or (ii) benefit accrual purposesapply for purposes of any plan, except program or arrangement under which similarly situated employees of HCC and HBC do not receive credit for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Planprior service.
(c) This Section 5.07 shall be binding upon and inure solely If any Continuing Employee becomes eligible to the benefit of each of the parties to this Agreementparticipate in any HCC Benefit Plan that provides medical, and nothing in this Section 5.07hospitalization or dental benefits, express HCC or impliedHBC, as applicable, shall confer upon any other Person any rights use commercial efforts to request from the appropriate sponsor or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied provider that (i) shall any pre-existing condition limitations or eligibility waiting periods under such HCC Benefit Plan be construed waived as to establish, amend such Continuing Employee and his or modify any benefit plan, program, agreement her covered dependents to the extent such limitation would have been waived or arrangement satisfied or not applicable under a Presidio Employee Plan in which such Continuing Employee participated immediately before the Effective Time and (ii) shall alter recognize any health expenses incurred by such Continuing Employee and his or limit her covered dependents in the ability of year that includes the Surviving CorporationClosing Date (or, Parent or any of their respective Affiliates if later, the year in which such Continuing Employee is first eligible 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits participate) for purposes of any nature or kind whatsoeverapplicable deductible and annual out-of-pocket expense requirements under any such HCC Benefit Plan.
(d) With respect HCC in its sole discretion, may elect to matters described terminate the Presidio 401(k) Plan or to discontinue contributions to the Presidio 401(k) Plan anytime following the Effective Time, to cause Presidio to terminate the 401(k) Plan to be effective at the Effective Time, or to merge the Presidio 401(k) Plan with and into the HBC 401(k) Plan after the Effective Time. In no event shall the Presidio 401(k) Plan be merged with and into the HBC 401(k) Plan, unless HCC determines in its reasonable judgment that (i) the Presidio 401(k) Plan is a qualified plan under Section 401(a) of the Code, both as to the form of the Presidio 401(k) Plan and as to its operation and (ii) there are no facts in existence that would be reasonably likely to adversely affect the qualified status of the Presidio 401(k) Plan. If HCC determines in its sole discretion not to merge the Presidio 401(k) Plan into the HBC 401(k) Plan and notifies Presidio in writing not less than 20 days prior to the Closing Date that the Presidio 401(k) Plan should be terminated before the Effective Time, Presidio agrees to take all action necessary to have the Presidio 401(k) Plan terminated before the Effective Time in accordance with its terms (including adopting written resolutions to terminate the Presidio 401(k) Plan in form reasonably acceptable to HCC). In the event that HCC so notifies Presidio that the Presidio 401(k) Plan be terminated, Presidio shall provide HCC with written evidence that such plan has been terminated (the form and substance of which shall be subject to review and approval by HCC) not later than the day immediately preceding the Effective Time; except that the effectiveness of such termination may be conditioned on the consummation of the Merger. In the event that HCC requests that the Presidio 401(k) Plan be terminated, Continuing Employees shall be permitted to roll over their Presidio 401(k) Plan account distributions (including direct rollover of any distributed plan loans) received on termination of the Presidio 401(k) Plan to the 401(k) Plan maintained by HCC or the Surviving Corporation. Prior to the Closing, Presidio shall have paid into the Presidio 401(k) Plan all discretionary employer contributions, including any employer matching contributions, profit sharing contributions or other non-elective contributions.
(e) After the Effective Time, HBC (or Presidio through its payroll process directed by HCC immediately prior to the Effective Time) will provide a severance benefit to each employee of Presidio who was employed immediately before the Effective Time (except for any employee who is a party to any written agreement relating to severance which agreement has been provided to HCC or who enters into an employment agreement with HCC or HBC effective on or after the Closing Date) and whose employment is terminated involuntarily (either at or within 12 months after the Closing Date), other than for “Cause” (as defined below), in a lump sum payment equal to four weeks of such employee’s regularly scheduled base salary or base wages at the time of termination of employment plus an additional two weeks salary for every year of completed service before the Closing Date (prorated for partial year). For purposes of this Section 5.075.11(e), “Cause” shall mean the Company will employee’s gross negligence or misconduct in the performance of employee’s duties, breach of fiduciary duty or duty of loyalty, commission of an act of fraud, embezzlement, misappropriation or theft in the course of employee’s employment, or the violation of any Law (other than traffic violations or similar minor offenses that do not send any written notices harm the reputation of HCC or other written communication materials to Company Employees without the prior written consent of ParentPresidio).
Appears in 1 contract
Employees; Benefit Plans. (a) During Following the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (Closing Date, WFD may choose to maintain any or if earlier, the date all of the employee's termination of employment CBNK Benefit Plans in its sole discretion and CBNK shall cooperate with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, WFD in order to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect effect any plan terminations to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective be made as of the Effective Time. However, Parent shallfor any CBNK Benefit Plan terminated for which there is a comparable WFD Benefit Plan of general applicability (other than the defined benefit pension plan maintained by WFD), or WFD shall take all reasonable action so that employees of CBNK shall be entitled to participate in such WFD Benefit Plan to the same extent as similarly-situated employees of WFD (it being understood that inclusion of the employees of CBNK in the WFD Benefit Plans may occur at different times with respect to different plans). WFD shall cause each WFD Benefit Plan in which employees of CBNK are eligible to participate to take into account for purposes of eligibility and vesting under the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes WFD Benefit Plans (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a benefit accrual) the service of such employees with CBNK and its Subsidiaries to the same extent as such service was credited for such purpose by CBNK (other than for the defined benefit pension plan or (ii) benefit accrual purposesmaintained by WFD); provided, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits. Nothing herein shall limit the ability of WFD to amend or terminate any of the CBNK Benefit Plans or WFD Benefit Plans in accordance with their terms at any time; provided, however, that WFD shall continue to maintain the CBNK Benefit Plans (Bother than stock-based or incentive plans and the defined benefit pension plan) for which there is a comparable WFD Benefit Plan until the CBNK Employees are permitted to participate in the WFD Benefit Plans, unless such service was not recognized WFD Benefit Plan has been frozen or terminated with respect to similarly-situated employees of WFD or any Subsidiary of WFD. Notwithstanding anything in the Agreement to the contrary, the CBNK 2007 Equity Incentive Plan will be maintained to the extent there are outstanding Converted Options.
(b) WFD shall assume and honor, under the corresponding Company Employee Planvacation policies of CBNK, as disclosed on CBNK Disclosure Schedule 3.18, the accrued but unused vacation time of employees of the Surviving Corporation who were employees of CBNK prior to the Effective Time. Prior to the Effective Time, CBNK shall take all actions needed to revise the terms of its existing severance pay plan as set forth on CBNK Disclosure Schedule 5.13(b).
(c) This Section 5.07 If employees of CBNK become eligible to participate in a medical, dental or health plan of WFD upon termination of such plan of CBNK, WFD shall be binding upon and inure solely make all commercially reasonable efforts to the benefit of cause each of the parties such plan to this Agreement, and nothing in this Section 5.07, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.07. Nothing contained herein, express or implied (i) shall be construed waive any preexisting condition limitations to establishthe extent such conditions are covered under the applicable medical, amend health or modify any benefit plandental plans of WFD, program, agreement or arrangement or (ii) shall alter or limit honor under such plans any deductible, co-payment and out-of-pocket expenses incurred by the ability employees and their beneficiaries during the portion of the Surviving Corporationcalendar year prior to such participation and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, Parent in each case to the extent such employee had satisfied any similar limitation or any of their respective Affiliates requirement under an analogous CBNK Benefit Plan prior 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverEffective Time.
(d) With respect Concurrently with the execution of this Agreement, CBNK shall obtain from each of the individuals named in CBNK Disclosure Schedule 5.13(d) an agreement (a “Settlement Agreement”) to matters described accept in full settlement of his or her rights under the specified programs the amounts and benefits determined under his or her Settlement Agreement (the aggregate amounts of such payments to be specified in CBNK Disclosure Schedule 5.13(d)) and pay such amounts to such individuals who are employed at the Effective Time pursuant to the terms of the Settlement Agreement. As to, and only as to, each individual who enters into a Settlement Agreement, WFD acknowledges and agrees that (i) the Merger constitutes a “change of control” or “change in control” for all purposes pursuant to such agreements, and (ii) CBNK will pay out all cash amounts under such agreements at the Closing Date . Any officer or employee of CBNK who is a party to a Settlement Agreement shall be entitled to receive the benefits payable or to be otherwise provided pursuant to the terms of such Settlement Agreement, and WFD agrees to provide the non-cash benefits, if any, pursuant to the terms of the Settlement Agreement.
(e) Concurrently with the execution of this Agreement, WFD and/or Westfield Bank is entering into employment agreements with Xxxxxxx X. Xxxxxx and Xxxxxxx Xxxxxxxxxxx in the forms attached hereto as Exhibits C-1 and C-2, respectively, to be effective as of the Effective Time, and settlement agreements with Xxxxxxx X. Xxxxxx, Xxxxx X.X. Xxxxxx, Xxxxxxx X. Xxxx, Xxxxx X. Xxxxxx and Xxxxxxx Xxxxxx in the forms attached hereto as Exhibits D-1 to D-5 hereto, respectively, to be effective as of the Effective Time.
(f) Subject to the occurrence of the Effective Time, the CBNK tax-qualified employee stock ownership plan (the “ESOP”) shall be terminated immediately prior to and effective as of the Effective Time (all shares held by the ESOP shall be converted into the right to receive the Merger Consideration), a portion of the unallocated shares held by the ESOP will be either (i) sold and the proceeds of such sale applied to the repayment of all outstanding ESOP indebtedness, or (ii) a sufficient number of unallocated shares of CBNK Common Stock will be delivered to CBNK in order to repay all outstanding ESOP indebtedness, and the balance of the unallocated shares and any other assets remaining unallocated shall be allocated and distributed to ESOP participants (subject to the receipt of a favorable determination letter from the IRS), as provided for in the ESOP unless otherwise required by applicable law. Prior to the Effective Time, CBNK, and following the Effective Time, WFD shall use their respective best efforts in good faith to obtain such favorable determination letter (including, but not limited to, making such changes to the ESOP and the proposed allocations as may be requested by the IRS as a condition to its issuance of a favorable determination letter). CBNK and following the Effective Time, WFD, will adopt such amendments to the ESOP as may be reasonably required by the IRS as a condition to granting such favorable determination letter on termination. Neither CBNK, nor following the Effective Time, WFD shall make any distribution from the ESOP except as may be required by applicable law until receipt of such favorable determination letter. In the case of a conflict between the terms of this Section 5.075.13(f) and the terms of the ESOP, the Company terms of the ESOP shall control however, in the event of any such conflict, CBNK before the Merger, and WFD after the Merger, shall use their best efforts to cause the ESOP to be amended to conform to the requirements of this Section 5.13(f).
(g) WFD will not send use its best efforts to cause each employee of CBNK that continues employment with WFD at the Closing Date to be eligible to participate in WFD's 401(k) Plan and employee stock ownership plan on the first day of the calendar month immediately following the Closing Date; provided, however, that participation in the WFD 401(k) Plan and employee stock ownership plan by each such employee of CBNK that continues employment with WFD at the Closing Date shall be subject to applicable length of service requirements for eligibility for participation in such plans, which length of service of such employees that continue employment with WFD shall take into account for purposes of eligibility to participate in such plans the service of such employees with CBNK and its Subsidiaries to the same extent as such service was credited for such purpose by CBNK.
(h) WFD shall provide a retention pool in an amount up to $100,000 for the benefit of certain employees of CBNK to be designated by WFD at its sole discretion; provided that, any written notices or other written communication materials such designations shall be made in consultation with CBNK. Such designated employees will enter into retention agreements to Company Employees without the prior written consent of Parentbe agreed upon by WFD and CBNK.
Appears in 1 contract
Employees; Benefit Plans. (a) During For a period of one year following the period commencing at Closing Date (the Effective Time and ending on the date which is FIVE (“5Continuation Period”) months from the Effective Time (or if earlier, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to will provide the current employees of the Company and its Subsidiaries (other than those employees covered by a collective bargaining agreement, if any) as of the Effective Time who continue employment with the Surviving Corporation (“Employees”) with compensation and benefits that are substantially similar in the aggregate than those provided under the Company’s compensation and benefit plans, programs, policies, practices and arrangements (excluding equity-based programs) in effect at the Effective Time (it being understood that incentive programs will remain employed discretionary); provided, however, that nothing herein will prevent the amendment or termination of any specific plan, program or arrangement, or require that the Surviving Corporation provide or permit investment in the securities of the Surviving Corporation or interfere with the Surviving Corporation’s right or obligation to make such changes as are necessary to comply with applicable Law. Notwithstanding anything to the contrary set forth herein, nothing herein shall preclude the Surviving Corporation from terminating the employment of any Employee for any reason for which the Company could have terminated such Employee prior to the Effective Time.
(b) The Surviving Corporation and its Affiliates will honor all Company Benefit Plans in accordance with their terms as in effect immediately prior to the Effective Time, subject to any amendment or termination thereof that may be permitted by such plans, agreements or written arrangements; provided that, notwithstanding anything to the contrary in this Agreement, the Surviving Corporation and its Affiliates shall honor the terms of all retention and change-in-control agreements without amending them and without terminating them (except for amendments or terminations in accordance with the terms of the agreements, including terminations due to the other party’s actions or due to the satisfaction of all payment obligations of the Company thereunder).
(c) For all purposes under the employee benefit plans of the Surviving Corporation and its Affiliates providing benefits to any Employees after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation“New Plans”), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by each Employee will be credited with his or her years of service with the Company and its Subsidiaries on Affiliates before the date of this Agreement.
Effective Time (b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent including predecessor or acquired entities or any of other entities for which the Company and its SubsidiariesAffiliates have given credit for prior service), excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectivelyto the same extent as such Employee was entitled, "Parent Benefit Plans") in which any Company Continuing Employees will participate effective as of before the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if to credit for such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent the corresponding Company Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposesPlan, except for vacationpurposes of benefit accrual under defined benefit plans, if applicable) in for any Parent Benefit Plan in which such Company Continuing Employees may be eligible purpose where service credit for the applicable period is not provided to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered intoparticipants generally, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized and to the extent that (A) such recognition credit would result in a duplication of accrual of benefits. In addition, and without limiting the generality of the foregoing (i) each Employee immediately will be eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or comparable Company Benefit Plan in which such Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”) and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Employee, the Surviving Corporation will cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Employee and his or (B) her covered dependents, to the extent any such service was not recognized exclusions or requirements were waived or were inapplicable under any similar or comparable Company Benefit Plan, and the Surviving Corporation will cause any eligible expenses incurred by such Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Employee’s participation in the corresponding Company New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(cd) This Section 5.07 6.7 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.076.7, express expressed or implied, shall is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.076.7. Without limiting the foregoing, no provision of this Section 6.7 will create any third party beneficiary rights in any current or former employee, director or consultant of the Company or its Subsidiaries in respect of continued employment (or resumed employment) or any other matter. Nothing contained hereinin this Section 6.7 is intended to amend any Company Benefit Plan, express or implied (i) shall be construed to establish, amend interfere with Parent’s or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of their respective Affiliates ’s right from and after the Effective Time to amend, modify amend or terminate any benefit plan, program, agreement Company Benefit Plan or arrangement at any time assumed, established, sponsored the employment or maintained provision of services by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee director, employee, independent contractor or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverconsultant.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (a) During Following the Closing Date and except to the extent an alternative treatment is set forth in this Section 5.14, NBT may choose to maintain any or all of the Xxxxx Benefit Plans in its sole discretion, and Xxxxx and Xxxxx Bank shall cooperate with NBT in order to effect any plan terminations to be made as of the Effective Time as set forth in this Section 5.14 and in accordance with the terms of the applicable Xxxxx Benefit Plans and applicable law. For the period commencing at the Effective Time and ending on the date which is FIVE twelve (“5”12) months from after the Effective Time (or if earlieruntil the applicable Continuing Employee’s earlier termination of employment), NBT shall provide, or cause to be provided, to each employee of Xxxxx Bank who continues with the date Surviving Bank as of the employee's Closing Date (a “Continuing Employee”) (i) a base salary or a base rate of pay at least equal to the base salary or base rate of pay provided to similarly situated employees of NBT or any Subsidiary of NBT (or until the applicable Continuing Employee’s earlier termination of employment with Parent and its Subsidiariesemployment), Parent and (ii) other benefits (other than severance or termination pay in order to avoid a duplication of benefits, if applicable) at least substantially comparable in the aggregate to the benefits provided to similarly situated employees of NBT or any Subsidiary of NBT. For any Xxxxx Benefit Plan terminated for which there is a comparable NBT Benefit Plan of general applicability, NBT shall cause take all commercially reasonable action so that Continuing Employees shall be entitled to participate in such NBT Benefit Plan to the Surviving Corporation and each same extent as similarly-situated employees NBT (it being understood that inclusion of its Subsidiaries, as applicable, to provide the employees of the Company Xxxxx and its Subsidiaries who remain employed immediately after the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, Xxxxx Bank in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With NBT Benefit Plans may occur at different times with respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent different plans). NBT shall cause each NBT Benefit Plans") Plan in which any Company Continuing Employees will are eligible to participate effective as to take into account for purposes of eligibility and vesting under the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes NBT Benefit Plans (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan accrual) the service of such employees with Xxxxx or (ii) benefit accrual purposesXxxxx Bank to the same extent as such service was credited for such purpose by Xxxxx or Xxxxx Bank; provided, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or retroactive application. Nothing herein shall limit the ability of NBT to amend or terminate any of the Xxxxx Benefit Plans or NBT Benefit Plans in accordance with their terms at any time. Following the Closing Date, NBT shall honor, in accordance with Xxxxx’x policies and procedures in effect as of the date hereof, any employee expense reimbursement obligations of Xxxxx for out-of-pocket expenses incurred during the calendar year in which the Closing occurs by any Continuing Employee and all accrued but unused vacation credited to any Continuing Employee under Xxxxx Benefit Plans.
(Bb) Without limiting the generality of Section 5.14(a), prior to the Closing Date, (i) Xxxxx or Xxxxx Bank, as applicable, shall take all actions necessary to terminate the Xxxxx Bancorp, Inc. Executive Severance Plan and Xxxxx Bank Change in Control Severance Plan (together, the “Xxxxx Bank Xxxxxxxxx Plan”), and to adopt written resolutions, the form and substance of which shall be reasonably satisfactory to NBT, to terminate such service was Xxxxx Bank Xxxxxxxxx Plan, and (ii) if requested by NBT in writing not recognized less than forty-five (45) days prior to the Closing Date, Xxxxx or Xxxxx Bank, as applicable, shall take all actions necessary to cease contributions to and terminate each Xxxxx Benefit Plan that is intended to qualify under Code Section 401(k) (each, a “Xxxxx 401(k) Plan”), and to adopt written resolutions, the form and substance of which shall be reasonably satisfactory to NBT, to terminate such Xxxxx 401(k) Plan; provided, however, that such termination may be made contingent upon the consummation of the transactions contemplated by this Agreement. In such event, NBT shall take any and all actions as may be required to permit Continuing Employees to participate in a NBT Benefit Plan that is intended to qualify under Code Section 401(k) (an “NBT 401(k) Plan”) immediately following the Closing Date and to permit Continuing Employees to roll over their account balances in the Xxxxx 401(k) Plan, including any participant loans under the corresponding Company Employee Xxxxx 401(k) Plan, into the NBT 401(k) Plan. If requested by NBT in writing at any time following the date of this Agreement, Xxxxx or Xxxxx Bank, as applicable, shall initiate the process to terminate its tax-qualified defined benefit pension plan, with such termination effective as soon as practicable after the Effective Time, and Xxxxx shall keep NBT informed regarding the progress and status of the termination process.
(c) This If employees of Xxxxx or Xxxxx Bank become eligible to participate in a medical, dental, vision, prescription drug, disability plan or life insurance plan of NBT upon termination of such plan of Xxxxx or Xxxxx Bank, NBT shall use all commercially reasonable efforts to cause each such plan to (i) waive any preexisting condition limitations to the extent such conditions are covered under the applicable NBT Benefit Plan, (ii) provide credit under such plans for any deductible, co-payment and out-of-pocket expenses incurred by the employees and their beneficiaries during the portion of the calendar year prior to such participation and (iii) waive any waiting period limitation, actively-at-work requirement or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous Xxxxx Benefit Plan prior to the Effective Time; provided, however, NBT shall not cause any coverage of a Continuing Employee or such Continuing Employee’s dependents to terminate under any Xxxxx Benefit Plan which is a health or welfare plan prior to the time such Continuing Employees or such Continuing Employee’s dependents, as applicable, have been offered participation in the health and welfare plans common to all employees of NBT and their dependents, except in the case of a termination of employment or other service.
(d) From and after the Effective Time, NBT agrees to honor all obligations under the employment agreements, change in control agreements, supplemental executive retirement plans, and similar arrangements as set forth on Xxxxx Disclosure Schedule 5.14(d). NBT shall assume and honor all Xxxxx Benefit Plans listed on Xxxxx Disclosure Schedule 5.14(d) in accordance with their terms. Xxxxx Disclosure Schedule 5.14(d) sets forth the names of all participants, the value of each participant’s account balance and the amount of each lump sum or installment payment under the applicable non-qualified deferred compensation plan.
(e) NBT agrees to pay to each employee of Xxxxx or Xxxxx Bank that is not covered by a written employment or severance agreement and is terminated by NBT or any of its Subsidiaries, without cause, within six (6) months following the Effective Time, a severance payment equal to two (2) weeks of his or her then current base salary multiplied by the number of total completed years of service with Xxxxx or Xxxxx Bank; provided, however, that for vice presidents and above, severance payment shall equal twenty-six (26) weeks of his or her base salary and for all other employees, the minimum severance payment shall equal not less than twelve (12) weeks of his or her base salary and the maximum severance payment shall not exceed twenty-six (26) weeks of his or her base salary; and provided further, that such employee enters into a release of claims in a form reasonably satisfactory to NBT and that such employee does not voluntarily leave employment with Xxxxx or Xxxxx Bank prior to the Effective Time.
(f) To the extent necessary, NBT and Xxxxx may provide a retention pool as mutually agreed by NBT and Xxxxx to enable NBT and Xxxxx to provide retention incentives to certain employees of Xxxxx or Xxxxx Bank who are not covered by a written employment agreement, the recipients and amounts to be mutually determined by NBT and Xxxxx. Such retention incentives will be in addition to, and not in lieu of, any severance payment, including the amount that may be paid pursuant to Section 5.07 5.14(e). Such designated employees will enter into retention agreements to be provided by Xxxxx and reasonably acceptable to NBT.
(g) Notwithstanding anything in this Agreement to the contrary, NBT shall honor and agree to not terminate the Xxxxx Benefit Plans set forth on Xxxxx Disclosure Schedule 5.14(g) and the parties agree that the benefits under such Xxxxx Benefit Plans shall be binding upon paid out in accordance with the terms and inure solely conditions of such Xxxxx Benefit Plans; provided, however, that Xxxxx or Xxxxx Bank, as applicable, shall take all actions necessary to cease all participant contributions to all such plans following the benefit of each Closing Date,subject to compliance with Section 409A of the parties to Code, the terms and conditions of such plans and applicable law.
(h) Nothing contained in this Agreement, and nothing in this Section 5.07, express expressed or implied, shall confer upon (i) give any person, other Person than the parties hereto, any rights or remedies of any nature whatsoever whatsoever, including any right to continued employment or service, under or by reason of this Section 5.07. Nothing contained herein5.14, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter cause any third party beneficiary rights in any current or limit former employee, director, other individual service provider of Xxxxx or any of its Subsidiaries to enforce the ability provisions of the Surviving Corporationthis Section 5.14 or any other matter related thereto, Parent or (iii) be construed as an amendment to any Xxxxx Benefit Plan, NBT Benefit Plan, or other employee benefit plan of NBT, NBT Bank, Xxxxx or any of their respective Affiliates Affiliates, or be construed to amend, modify prohibit the amendment or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits termination of any nature or kind whatsoeversuch plan.
(di) With respect If requested by NBT, Xxxxx shall take all such actions as NBT may request in order to matters described in this Section 5.07fully and timely comply with any and all requirements of the WARN Act, the Company will not send including providing notices to employees of Xxxxx or any written notices or other written communication materials to Company Employees without the prior written consent Subsidiary of ParentXxxxx.
Appears in 1 contract
Samples: Merger Agreement (NBT Bancorp Inc)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time Closing and ending on the date which is FIVE (“5”) 12 months from the Effective Time Closing (or or, if earlier, the date of the employee's ’s termination of employment with Parent and its Subsidiariesthe Company), Parent Purchaser shall provide (or shall cause the Surviving Corporation and each of its SubsidiariesCompany or their Affiliate to provide, as applicable), to provide the employees of each employee who is employed by the Company and its Subsidiaries immediately prior to the Closing who remain remains employed immediately after the Effective Time Closing (collectively, the "“Company Continuing Employees"Employee”) with compensation and benefits (including base salarysalary or hourly wages, target bonus opportunities (excluding equity-based compensation), retirement and employee benefits welfare benefits, and severance benefits) that are, are substantially comparable in the aggregate, no less favorable than aggregate to the base salary, target bonus opportunities (excluding equity-based compensation), compensation and employee benefits provided by Purchaser to its similarly-situated employees; provided that, notwithstanding the foregoing, Purchaser shall not materially change the aggregate compensation and benefits of any such Company and its Subsidiaries on Continuing Employee during the date of this Agreement90-day period immediately following Closing. Each Company Continuing Employee shall receive credit for vacation accrued prior to the Closing.
(b) In addition to the compensation and benefits provided pursuant to Section 8.10(a), Purchaser shall offer to enter into an agreement with each Company Continuing Employee who is a Key Employee which shall provide such Key Employee with severance benefits equal to such Key Employee’s annual base salary upon a termination of employment by Purchaser without cause.
(c) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent Purchaser or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent “Purchaser Benefit Plans"”) in which any Company Continuing Employees will participate effective as of or after the Effective TimeClosing, Parent shallPurchaser shall use its reasonable best efforts to, or shall to cause the Surviving Corporation Company to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with ParentPurchaser, for vesting and eligibility purposes in any Purchaser Benefit Plan (but not for (i) benefit accrual purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (iiplan) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Timedate hereof, to the extent permitted by the terms of the applicable Purchaser Benefit Plan and applicable Law; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Benefit Plan. To the extent that a Company Continuing Employee Plan.
(cparticipating in the defined contribution 401(k) This Section 5.07 shall be binding upon and inure solely Plan prior to the benefit Closing elects a direct transfer or rollover of each assets, including an outstanding loan of such Company Continuing Employee under such defined contribution 401(k) Plan, Purchaser agrees to use its reasonable best efforts to cause the parties applicable Purchaser Benefit Plan to this Agreementaccept a direct transfer or rollover of assets from the defined contribution 401(k) Plan in which the Company Continuing Employees participated prior to the Closing, and nothing in this Section 5.07including, express or impliedbut not limited to, shall confer upon any other Person any rights or remedies of any nature whatsoever outstanding loans under or by reason of this Section 5.07. Nothing contained herein, express or implied (isuch defined contribution 401(k) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverPlan.
(d) With respect Purchaser shall assume responsibility for providing COBRA notice and coverage to matters described in this Section 5.07, any M&A qualified beneficiaries (within the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent meaning of ParentTreas. Reg.
Appears in 1 contract
Samples: Units Purchase Agreement
Employees; Benefit Plans. (a) During the period commencing at the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlier, the date As of the employee's termination of employment with Parent Closing Date, (i) the Excluded Employees shall no longer be eligible to participate in the Company Benefit Plans and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the (ii) all employees of the Company Acquired Companies who are not Excluded Employees and its Subsidiaries who remain employed immediately after the Effective Time Closing (each a “Company Continuing Employee”) shall continue to be eligible to participate in the Company Benefit Plans to the same extent such Company Continuing Employees participated in such plans immediately prior to the Closing Date. Prior to the Closing Date, the Seller shall use commercially reasonable efforts to take all steps necessary to ensure that the Company Benefit Plans are maintained and sponsored by the applicable Acquired Company or any successor entity of such Acquired Company without material interruption, such that the Company Continuing Employees (A) are credited for service with the Acquired Companies for the pre-Closing period, (B) continue to have pre-existing condition exclusions and actively-at work requirements and similar limitations, eligibility waiting periods and evidence of insurability requirements waived to the extent satisfied by any Company Continuing Employee under any Company Benefit Plan as of the Closing Date, and (C) have any deductible, co-insurance and out-of-pocket covered expenses paid on or before the Closing Date by any Company Continuing Employee (or covered dependent thereof) continue to be taken into account for purposes of satisfying applicable deductible, coinsurance and maximum out-of-pocket provisions after the Closing Date in the year of the Closing. In addition to the foregoing, the Seller and the Acquired Companies will use commercially reasonably efforts prior to the Closing to adopt new long-term incentive plans for the operative Acquired Companies to grant, on a discretionary basis, any benefits not covered by the Company Benefit Plans to be maintained by ListCo following the Closing (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation“New Benefit Plans”), which New Benefit Plans will be adopted and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries become effective on the date of this AgreementClosing.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs 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 Employees will participate effective as of the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Company Employee Plan.
(c) This Section 5.07 7.06 shall be binding upon and inure solely to the benefit of each of the parties to this AgreementParties, and nothing in this Section 5.077.06, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.077.06. Nothing contained herein, express or implied (i) in this Section 7.06 shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto Parties acknowledge and agree that the terms set forth in this Section 5.07 7.06 shall not create any right in any Company Employee employee or any other Person to any continued employment for any period with any Acquired Company, the Surviving Corporation, Parent Acquirors or any of their respective Subsidiaries Affiliates, or continued receipt of any specific compensation or benefits employee benefit of any nature or kind whatsoever, or shall constitute an amendment to, adoption of, or any other modification of the Company Benefit Plans. Nothing in this Section 7.06 shall be deemed to limit the right of the Seller, the Acquirors, the Acquired Companies or any of their respective Affiliates to terminate employment or any of their respective employees or other service providers at any time.
(dc) With respect Seller agrees to matters described fully reimburse ListCo and the Acquired Companies for any and all expenses incurred by Listco and/or the Acquired Companies on or before December 31, 2019 in this connection with any obligations of the Acquired Companies to pay or provide compensation and/or benefits to any Excluded Employees and any other Persons who are not Continuing Employees or otherwise providing services to or employed by the Acquired Companies, including the obligations set forth on Section 5.07, 7.06(c) of the Company will not send any written notices or other written communication materials to Company Employees without Seller Disclosure Schedules and certain remaining obligations under the prior written consent of ParentAlgeco TSA.
Appears in 1 contract
Samples: Merger Agreement (Platinum Eagle Acquisition Corp.)
Employees; Benefit Plans. (a) During Following the Closing Date and except to the extent an alternative treatment is set forth in this Section 5.14, Cambridge may choose to maintain any or all of the Wellesley Benefit Plans in its sole discretion and Wellesley and Wellesley Bank shall cooperate with Cambridge in order to effect any plan terminations to be made as of the Effective Time. For the period commencing at the Effective Time and ending on December 31, 2020 (or until the date which is FIVE applicable Continuing Employee’s earlier termination of employment), Cambridge shall provide, or cause to be provided, to each employee of Wellesley Bank and Wellesley who continues in employment with the Surviving Bank as of the Closing Date (“5Continuing Employees”) months from (i) base salary or a base rate of pay at least equal to the base pay or base rate of salary provided to such Continuing Employee immediately prior to the Effective Time and (ii) other benefits (other than severance, termination pay or if earlier, equity compensation) at least substantially comparable in the date of aggregate to the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, benefits provided to provide the employees of the Company and its Subsidiaries who remain employed such Continuing Employee immediately after prior to the Effective Time (collectively, the "Company Continuing Employees") with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that are, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to Time. For any "Wellesley Benefit Plan terminated for which there is a comparable employee benefit or compensation plan" as defined in Section 3(3) , program, policy, agreement or arrangement of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent Cambridge or any of its Subsidiaries (collectivelya “Cambridge Benefit Plan”) of general applicability, "Parent Cambridge shall take all commercially reasonable action so that employees of Wellesley or Wellesley Bank shall be entitled to participate in such Cambridge Benefit Plans") Plan to the same extent as similarly-situated employees of Cambridge (it being understood that inclusion of the employees of Wellesley and Wellesley Bank in the Cambridge Benefit Plans may occur at different times with respect to different plans). Cambridge shall cause each Cambridge Benefit Plan in which any Company Continuing Employees will employees of Wellesley or Wellesley Bank are eligible to participate effective as to take into account for purposes of eligibility and vesting under the Effective Time, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parent, for vesting and eligibility purposes Cambridge Benefit Plans (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan accrual) the service of such employees with Wellesley or (ii) benefit accrual purposesWellesley Bank to the same extent as such service was credited for such purpose by Wellesley or Wellesley Bank; provided, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. providedhowever, that such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits benefits. Nothing herein shall limit the ability of Cambridge to amend or terminate any of the Wellesley Benefit Plans or Cambridge Benefit Plans in accordance with their terms at any time; provided, however, that Cambridge shall continue to maintain the Wellesley Benefit Plans (Bother than stock-based or incentive plans) for which there is a comparable Cambridge Benefit Plan until the Wellesley Employees are permitted to participate in the Cambridge Benefit Plans, unless such service was not recognized Cambridge Benefit Plan has been frozen or terminated with respect to similarly situated employees of Cambridge or any Subsidiary of Cambridge. Following the Closing Date, Cambridge shall honor, in accordance with Wellesley’s policies and procedures in effect as of the date hereof, any employee expense reimbursement obligations of Wellesley for out-of-pocket expenses incurred during the calendar year in which the Closing occurs by any Wellesley Employee whose employment continues after the Effective Time. In the event Cambridge elects to terminate the Wellesley Bank 401(k) Plan prior to the Closing Date, Cambridge shall take any and all actions as may be required to permit Continuing Employees to roll over their account balances in the Wellesley Bank 401(k) Plan into Cambridge Bank 401(k) Plan.
(b) Cambridge shall honor, under the corresponding vacation policies of Wellesley and Wellesley Bank, as disclosed on Wellesley Disclosure Schedule 5.14(b), the accrued but unused vacation time of employees of the Surviving Company Employee Planor the Surviving Bank who were employees of Wellesley or Wellesley Bank prior to the Effective Time.
(c) This Section 5.07 If employees of Wellesley or Wellesley Bank become eligible to participate in a medical, dental, vision, prescription drug or other health plan, disability plan or life insurance plan of Cambridge upon termination of such plan of Wellesley or Wellesley Bank, Cambridge shall make all commercially reasonable efforts to cause each such plan to (i) waive any preexisting condition limitations to the extent such conditions are covered under the applicable Cambridge plan, (ii) provide credit under such plans for any deductible, co-payment and out-of-pocket expenses incurred by the employees and their beneficiaries during the portion of the calendar year prior to such participation and (iii) waive any waiting period limitation, actively-at-work requirement or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous Wellesley Benefit Plan prior to the Effective Time.
(d) Concurrently with the execution of this Agreement, the CIC Agreement shall have been executed and be in full force and effect.
(e) Cambridge shall honor and perform under each agreement or contract set forth in Wellesley Disclosure Schedule 5.14(e).
(f) Subject to the occurrence of the Closing, the Wellesley Bank ESOP shall be binding terminated by Wellesley Bank prior to the Closing Date. In connection with the termination of the Wellesley Bank ESOP, all plan accounts shall be fully vested, all outstanding indebtedness of the Wellesley Bank ESOP shall be repaid by delivering a sufficient number of unallocated shares of Wellesley Stock to Wellesley, at least five (5) Business Days prior to the Effective Time, all remaining shares of Wellesley Stock held by the Wellesley Bank ESOP shall be converted into the right to receive the Merger Consideration, and the balance of the unallocated shares and any other unallocated assets remaining in the Wellesley Bank ESOP after repayment of the Wellesley Bank ESOP loan shall be allocated as earnings to the accounts of the Wellesley Bank ESOP participants who are employed as of the date of termination of the Wellesley Bank ESOP based on their account balances under the Wellesley Bank ESOP as of the date of termination of the Wellesley Bank ESOP and distributed to Wellesley Bank ESOP participants after the receipt of a favorable determination letter from the IRS. Prior to the Effective Time, Wellesley Bank shall take all such actions as are necessary (determined in consultation with Cambridge) to submit the application for favorable determination letter in advance of the Effective Time. Wellesley Bank will adopt such amendments to the Wellesley Bank ESOP to effect the provisions of this Section 5.14(f). Promptly following the receipt of a favorable determination letter from the IRS regarding the qualified status of the Wellesley Bank ESOP upon its termination, the account balances in the Wellesley Bank ESOP shall either be distributed to participants and inure solely beneficiaries or transferred to an eligible tax-qualified retirement plan or individual retirement account as a participant or beneficiary may direct; provided however, that nothing contained herein shall delay the distribution or transfer of account balances in the Wellesley Bank ESOP in the ordinary course for reasons other than the termination of such plan. Prior to the Closing Date, Wellesley Bank shall provide Cambridge with the final documentation evidencing that the actions contemplated herein have been effectuated. Notwithstanding anything herein to the contrary, Wellesley Bank shall continue to accrue and make contributions to the Wellesley Bank ESOP trust from the date of this Agreement through the termination date of the Wellesley Bank ESOP in an amount sufficient (but not to exceed) the loan payments which become due in the ordinary course on the outstanding loans to the Wellesley Bank ESOP prior to the termination of the Wellesley Bank ESOP and shall make a pro-rated payment on the Wellesley Bank ESOP loan for the 2020 plan year through and including the end of the calendar quarter immediately preceding the Closing, prior to the termination of the Wellesley Bank ESOP.
(g) Wellesley Bank shall take all necessary action to terminate the Wellesley Bank Supplemental Executive Retirement Plan at or immediately prior to the Effective Time in accordance with Section 409A of the Code and to pay to each participant a lump sum amount equal to the benefit to which such participant is entitled pursuant to the terms of each such plan. For illustrative purposes, Wellesley Disclosure Schedule 5.14(g) provides the aggregate lump sum amount payable to participants had the Wellesley Bank Supplemental Executive Retirement Plan been terminated on October 31, 2019.
(h) Wellesley Bank shall take all necessary action to terminate the Salary Continuation Agreement by and between Wellesley Bank and the President and Chief Executive Officer of Wellesley Bank at or immediately prior to the Effective Time in accordance with Section 409A of the parties Code and to pay the executive a lump sum amount equal to the benefit to which such participant is entitled pursuant to the terms of such plan. For illustrative purposes, Wellesley Disclosure Schedule 5.14(h) provides the lump sum amount payable to the participant had the Salary Continuation Agreement been terminated on December 31, 2019.
(i) Wellesley and Wellesley Bank shall take all necessary action to terminate the Employment Agreement by and among Wellesley, Wellesley Bank and the President and Chief Executive Officer of Wellesley and Wellesley Bank at or immediately prior to the Effective Time.
(j) To the extent necessary, Cambridge and Wellesley may provide a retention pool as mutually agreed by Cambridge and Wellesley to certain employees of Wellesley or Wellesley Bank to be designated by Cambridge in consultation with Wellesley. Such designated employees will enter into retention agreements to be agreed upon by Cambridge and Wellesley.
(k) Nothing contained in this Agreement, and nothing in this Section 5.07, express expressed or implied, shall confer upon (i) give any person, other Person than the parties hereto, any rights or remedies of any nature whatsoever whatsoever, including any right to continued employment or service, under or by reason of this Section 5.07. Nothing contained herein5.14, express or implied (i) shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter cause any third party beneficiary rights in any current or limit former employee, director, other individual service provider of Wellesley or any of its Subsidiaries to enforce the ability provisions of the Surviving Corporationthis Section 5.14 or any other matter related thereto, Parent or (iii) be construed as an amendment to any Wellesley Benefit Plan, Cambridge Benefit Plan, or other employee benefit plan of Cambridge, Cambridge Trust, Wellesley or any of their respective Affiliates Affiliates, or be construed to amend, modify prohibit the amendment or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits termination of any nature or kind whatsoeversuch plan.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Merger Agreement (Cambridge Bancorp)
Employees; Benefit Plans. (a) During the For a period commencing at of not less than one (1) year following the Effective Time and ending on the date which is FIVE (“5”) months from the Effective Time (or if earlierTime, the date of the employee's termination of employment with Parent and its Subsidiaries), Parent shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after in the Effective Time employment of the Surviving Corporation (collectively, the "“Company Continuing Employees"”) with base salary, target bonus opportunities shall receive salaries and employee benefits (excluding other than any equity-based compensation), and employee benefits benefits) that areare substantially comparable, in the aggregate, no less favorable than the base salary, target bonus opportunities (excluding equityto similarly-based compensation), and employee benefits provided by situated employees of the Company and its Subsidiaries on immediately prior to the date of this AgreementEffective Time.
(b) With respect to any "“employee benefit plan" ” as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements arrangement maintained by Parent or any of its Subsidiaries (collectively, "“Parent Benefit Plans"”) in which any Company Continuing Employees will participate effective as of the Effective TimeTime or later, Parent shall, or shall cause the Surviving Corporation to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiaries, as the case may be as if such service were with Parentbe, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective Time); (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or (By) such service was not recognized under the corresponding Company Employee Plan.
(c) With respect to any Parent Benefit Plan that is a medical, dental, vision or prescription benefit plan in which any Company Continuing Employees will participate effective in the plan year in which the Closing Date occurs, Parent shall use commercially reasonable efforts to cause the insurer or third-party administrator of such Parent Benefit Plan (i) to waive for the plan year in which the Closing occurs all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Company Continuing Employees to the extent waived or satisfied under the corresponding Company Employee Plan as of the Closing Date, and (ii) to provide each Company Continuing Employee with credit for any co-payments and deductibles paid prior to the Closing Date in the plan year in which the Closing Date occurs for purposes of satisfying any applicable co-payment or deductible requirements under any such Parent Benefit Plan in the plan year in which the Closing Date occurs.
(d) This Section 5.07 5.09 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.075.09, express or implied, shall is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.09. Nothing contained herein, express or implied (i) shall be construed to establish, amend or modify any benefit or compensation plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of their respective Affiliates to amend, modify or terminate any benefit or compensation plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 5.09 shall not create any right in any Company Employee or any other Person to any continued employment or any term or condition of employment with the Surviving Corporation, Parent or any of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoeverSubsidiaries.
(de) With respect to matters described in this Section 5.075.09, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Samples: Merger Agreement (Research Pharmaceutical Services, Inc.)
Employees; Benefit Plans. (a) During the period commencing at the Effective Time Closing and ending on the date which is FIVE twelve (“5”12) months from the Effective Time Closing (or if earlier, the date of the employee's ’s termination of employment with Parent and its Subsidiariesthe Company), Parent Buyer shall cause the Surviving Corporation and each of its Subsidiaries, as applicable, Company to provide each Employee who remains employed after the employees of Closing (“Company Continuing Employee”) with: (i) base salary or hourly wages which are no less than the base salary or hourly wages provided by the Company and its Subsidiaries who remain employed immediately after prior to the Effective Time Closing; (collectively, the "Company Continuing Employees"ii) with base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits that areif any, in the aggregate, which are no less favorable than the base salary, target bonus opportunities (excluding equity-based compensation), and employee benefits ) provided by the Company immediately prior to the Closing; (iii) retirement and its Subsidiaries on welfare benefits that are no less favorable in the date of this Agreementaggregate than those provided by the Company immediately prior to the Closing; and (iv) severance benefits that are no less favorable than the practice, plan or policy in effect for such Company Continuing Employee immediately prior to the Closing.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries subsidiaries (collectively, "Parent “Buyer Benefit Plans"”) in which any Company Continuing Employees will participate effective as of the Effective TimeClosing, Parent Buyer shall, or shall cause the Surviving Corporation Company to, recognize all service of the Company Continuing Employees with the Company or any of its Subsidiariessubsidiaries, as the case may be as if such service were with ParentBuyer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective TimeClosing Date; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (Ai) such recognition would result in a duplication of benefits or (Bii) such service was not recognized under the corresponding Company Employee PlanBenefit Plan (iii) such recognition is prohibited by applicable Law or (iv) with respect to any Buyer Benefit Plan that is insured, the insurance carrier does not consent to the recognition of such prior service.
(c) This Section 5.07 6.03 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.076.03, express or implied, shall confer upon any other Person (including any Employee) any rights or remedies of any nature whatsoever under or by reason of this Section 5.076.03. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify modify, or impose any limitation on any amendment, modification or termination of, any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the ability of the Surviving Corporation, Parent or any of 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 themarrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 6.03 shall not create any right in any Company Employee or any other Person to any continued employment with Enterprises, the Surviving CorporationCompany, Parent Buyer or any of their respective Subsidiaries Affiliates or to any compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07, the Company will not send any written notices or other written communication materials to Company Employees without the prior written consent of Parent.
Appears in 1 contract
Employees; Benefit Plans. (a) During the period commencing at the Effective Time Closing and thereafter, Buyer shall, or shall cause the Company to, comply with the terms of the Company Benefit Plans. During the period commencing at the Closing and ending on the date which is FIVE twelve (“5”12) months from the Effective Time Closing (or if earlier, the date of the employee's an Employee’s termination of employment with Parent and the Company or its Subsidiaries), Parent Buyer shall, and shall cause the Surviving Corporation Company to provide each Employee who remains employed, and each employee of Seller who becomes employed by the Company or its Subsidiaries, as applicable, to provide the employees of the Company and its Subsidiaries who remain employed immediately after the Effective Time Closing (collectively, the "“Company Continuing Employees"Employee”) with with: (i) base salary, target bonus opportunities salary or hourly wages which are not materially less than the base salary or hourly wages provided by the Company immediately prior to the Closing and (excluding equity-based compensation), and employee ii) severance benefits that are, in the aggregate, no are not materially less favorable than the base salarypractice, target bonus opportunities (excluding equity-based compensationplan or policy in effect for such Company Continuing Employee immediately prior to the Closing; provided, that for those Company Continuing Employees who are represented by a union or a works council as of the Closing Date, the compensation and benefits will be subject in all respects to the applicable collective bargaining, works council or similar agreement and not the other commitments provided in this Section 5.05(a), and employee benefits provided by the Company and its Subsidiaries on the date of this Agreement.
(b) With respect to any "employee benefit plan" as defined in Section 3(3) of ERISA plan maintained by Parent Buyer or any of its Subsidiaries, excluding both any retiree healthcare plans or programs maintained by Parent or any of its Subsidiaries and any equity compensation arrangements maintained by Parent or any of its Subsidiaries (collectively, "Parent “Buyer Benefit Plans"”) in which any Company Continuing Employees Employee will participate effective as of the Effective TimeClosing, Parent Buyer shall, or shall cause the Surviving Corporation Company or the Company’s Subsidiaries to, recognize all service of the Company Continuing Employees with Seller, the Company or any of its Subsidiaries, as the case may be as if such service were with ParentBuyer, for vesting and eligibility purposes (but not for (i) purposes of early retirement subsidies under any Parent Benefit Plan that is a defined benefit pension plan or (ii) benefit accrual purposes, except for vacation, if applicable) in any Parent Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Effective TimePlan; (iii) Continuing Company shall honor all consulting or advisory agreement previously entered into, or employment pending equity awards stock options or warrants to purchase equity based upon performance. provided, that however, such service shall not be recognized to the extent that (Ax) such recognition would result in a duplication of benefits or benefits, (By) such service was not recognized under the corresponding Company Employee PlanBenefit Plan or (z) it relates to vesting of future equity awards.
(c) This Section 5.07 5.05 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.075.05, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.075.05. Nothing contained herein, express or implied (i) implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or (ii) shall alter or limit the Company’s or the Company’s Subsidiaries’ ability of the Surviving Corporation, Parent or any of their respective Affiliates to amend, modify or terminate any particular benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of themarrangement; provided that Buyer otherwise meets its obligations under Section 5.05(a) and Section 5.05(b). The parties hereto acknowledge and agree that the terms set forth in this Section 5.07 5.05 shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving CorporationCompany, Parent its Subsidiaries, Buyer or any of their respective Subsidiaries Affiliates or compensation or benefits of any nature or kind whatsoever.
(d) With respect to matters described in this Section 5.07Seller, the Company will not send any written notices and the Company’s Subsidiaries shall take such actions prior to the Closing Date as are necessary to comply with applicable works councils, collective bargaining agreements or other written communication materials labor contracts and other labor Laws applicable to Company Employees without the prior written consent consummation of Parentthe transactions contemplated hereby, and shall use reasonable efforts to provide Buyer with copies of any communications or notices provided to or responses received from any such works councils or unions.
Appears in 1 contract
Samples: Stock Purchase Agreement (Patterson Companies, Inc.)
