Employees; Benefit Plans. (a) No later than five (5) Business Days after the date of this Agreement, Buyer shall deliver to each Business Employee as of the date of this Agreement (other than the Key Employees and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing), and no later than five (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and prior to the date that is six (6) Business Days prior to the Closing Date (subject to compliance with Section 5.1(b)(xvi) with respect to any such hiring, if applicable) (each, a “New Business Employee”), Buyer shall deliver to such Business Employee, in each case an offer of employment in the form attached hereto as Exhibit H (the “Offer Letter”), which Offer Letter shall, subject to the last sentence of this Section 5.6(a), provide for “at-will” employment with Buyer or an Affiliate thereof (including one of the Sold Companies) following the Closing and (i) an initial annual base salary or annual wage level, as applicable, that is not less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee immediately prior to the Closing, (ii) total annual target cash compensation (comprised of an initial annual base salary or annual wage level, as applicable, and, other than with respect to Business Employees participating in a sales incentive program as of immediately prior to the Closing, a bonus opportunity, as applicable) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior to the Closing, (iii) defined contribution pension and welfare benefits that are no less favorable, in the aggregate, than those provided to similarly situated employees of Buyer and its Affiliates, and (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior to the Closing. Each Business Employee (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letter, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate than the annual base salary or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively to similarly situated employees of Buyer and its Affiliates for a period of no less than one (1) year following the Closing; provided, however, that, for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable Law. (b) As soon as reasonably practicable after the date of this Agreement (and, with respect to any New Business Employee, as soon as reasonably practicable after such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant to Section 5.6(a)), Buyer shall provide reasonable information to Business Employees regarding Buyer’s (or any of its applicable Affiliates’) employee benefit plans (to the extent such plans will be made available to Business Employees as contemplated by Section 5.6(a)) and employee orientation sessions with respect to the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies) (with such sessions to be held at the offices of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer). During the Pre-Closing Period, (i) Seller shall allow Buyer to meet with Business Employees (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer or any of its Affiliates intends to deliver to any of the Business Employees regarding his or her continued employment after the Closing at least 48 hours prior to the delivery of such communication to the Business Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall reasonably cooperate with Buyer to encourage and facilitate each of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery of such Offer Letter to such Business Employee and to not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor Buyer shall, and each of Seller and Buyer shall cause their Affiliates not to, make any communication to any Business Employee or engage in any other activity, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior to the Closing Date. (c) Buyer shall, or shall cause its Affiliates to, use reasonable best efforts to recognize each Continuing Employee’s service with Seller, the Sold Companies, or any of their respective Affiliates or predecessors as of the Closing Date as service with Buyer, the Sold Companies or any of their respective Affiliates, as applicable, for all purposes (including eligibility, vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals under any defined benefit pension plan and any equity incentive plans) in Buyer’s or its Affiliates’ employee benefit plans, agreements, policies or other arrangements in which such Continuing Employees participate following the Closing Date (the “Buyer Benefit Plans”) (unless such credit would result in a duplication of benefits for the same period). In addition, (i) to the extent pre-existing condition limitations have been met or are otherwise inapplicable with respect to Continuing Employees under each Company Benefit Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan as of the Closing Date, Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to waive any such pre-existing condition limitations under the corresponding Buyer Benefit Plans and (ii) Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to recognize (or cause to be recognized) the dollar amount of all expenses incurred by Continuing Employees and their respective spouses, same-sex domestic partners or dependents during the plan year in which the Closing occurs for purposes of satisfying the deductibles and co-payment or out-of-pocket limitations for such plan year under the relevant Buyer Benefit Plans (to the extent such recognition would have been given under comparable Company Benefit Plans or Seller Benefit Plans prior to the Closing). (d) Buyer shall, or shall cause its respective Affiliates to, credit each Continuing Employee with the accrued and unused vacation days and any personal and sickness days accrued in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates in effect as of the Closing. (e) The parties hereto acknowledge and agree that all provisions contained in this Section 5.5(e) are included for the sole benefit of the parties to this Agreement, and that nothing in this Agreement, whether express or implied, shall (i) create any third party beneficiary or other rights (x) in any other Person, including any current or former Business Employees, any participant in any Company Benefit Plan or any Seller Benefit Plan, or any dependent or beneficiary thereof, or any other service provider of Seller or the Sold Companies, or (y) to employment or continued employment with Buyer, the Sold Companies or any of their respective Affiliates, (ii) prevent or restrict in any way the right of Buyer or any of its Affiliates to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service of any such service providers at any time, (iii) be treated as an amendment or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its Affiliates, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time.
Appears in 3 contracts
Samples: Stock Purchase Agreement (SMART Global Holdings, Inc.), Stock Purchase Agreement (SMART Global Holdings, Inc.), Stock Purchase Agreement (SMART Global Holdings, Inc.)
Employees; Benefit Plans. (a) No later than five During the period commencing at the Closing and ending on the date which is 90 days from the Closing (5) Business Days after or if earlier, the date of this Agreement, the employee’s termination of employment with the Company or the execution of a new employment contract by the Buyer shall deliver to each Business Employee as of for the date of this Agreement (other than the Key Employees and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing), and no later than five (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and prior to the date that is six (6) Business Days prior to the Closing Date (subject to compliance with Section 5.1(b)(xvi) with respect to any such hiring, if applicable) (each, a “New Business Employee”employee), Buyer shall deliver to such Business Employee, in each case an offer of employment in the form attached hereto as Exhibit H (the “Offer Letter”), which Offer Letter shall, subject to and shall cause the last sentence of this Section 5.6(a)Company to, provide for each Employee set forth on Schedule 5.04(a) (“at-will” employment with Buyer or an Affiliate thereof (including one of the Sold CompaniesCompany Continuing Employee”) following the Closing and with: (i) an initial annual base salary or annual wage level, as applicable, that is not hourly wages which are no less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee hourly wages provided by the Company immediately prior to the Closing, ; (ii) total annual target cash compensation bonus opportunities (comprised of an initial annual base salary or annual wage levelexcluding equity-based compensation), as applicableif any, and, other which are no less than with respect to Business Employees participating in a sales incentive program as of the target bonus opportunities (excluding equity-based compensation) provided by the Company immediately prior to the Closing, a bonus opportunity, as applicable) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior to the Closing, ; (iii) defined contribution pension retirement and welfare benefits that are no less favorable, favorable in the aggregate, aggregate than those provided to similarly situated employees of Buyer and its Affiliates, and (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of by the Company immediately prior to the Closing. Each Business Employee ; and (including each Key Employeeiv) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letter, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare severance benefits that are collectively no less favorable in the aggregate than the annual base salary practice, plan or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively policy in effect for such Company Continuing Employee immediately prior to similarly situated employees of Buyer and its Affiliates for a period of no less than one (1) year following the Closing; provided, however, that, for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable Law.
(b) As soon as reasonably practicable after the date of this Agreement (and, with With respect to any New Business Employee, as soon as reasonably practicable after such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant to Section 5.6(a)), Buyer shall provide reasonable information to Business Employees regarding Buyer’s (or any of its applicable Affiliates’) employee benefit plans (to the extent such plans will be made available to Business Employees as contemplated plan maintained by Section 5.6(a)) and employee orientation sessions with respect to the continued employment of the Business Employees after the Closing with Buyer or its Affiliates subsidiaries (including the Sold Companiescollectively, “Buyer Benefit Plans”) (with such sessions to be held at the offices in which any Company Continuing Employees will participate effective as of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer). During the Pre-Closing PeriodClosing, (i) Seller shall allow Buyer to meet with Business Employees (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer or any of its Affiliates intends to deliver to any of the Business Employees regarding his or her continued employment after the Closing at least 48 hours prior to the delivery of such communication to the Business Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall reasonably cooperate with Buyer to encourage and facilitate each of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery of such Offer Letter to such Business Employee and to not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor Buyer shall, and each of Seller and Buyer shall cause their Affiliates not to, make any communication to any Business Employee or engage in any other activity, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior to the Closing Date.
(c) Buyer shall, or shall cause its Affiliates the Company to, use reasonable best efforts to recognize each all service of the Company Continuing Employee’s service Employees with Seller, the Sold Companies, Company or any of their respective Affiliates or predecessors its subsidiaries, as of the Closing Date case may be as if such service were with Buyer, the Sold Companies or for vesting and eligibility purposes in any of their respective Affiliates, as applicable, for all purposes (including eligibility, vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals under any defined benefit pension plan and any equity incentive plans) in Buyer’s or its Affiliates’ employee benefit plans, agreements, policies or other arrangements Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate following after the Closing Date Date; provided, however, such service shall not be recognized to the extent that (the “Buyer Benefit Plans”x) (unless such credit recognition would result in a duplication of benefits for the same period). In addition, or (iy) to the extent pre-existing condition limitations have been met or are otherwise inapplicable with respect to Continuing Employees under each Company Benefit Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan as of the Closing Date, Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to waive any such pre-existing condition limitations service was not recognized under the corresponding Buyer Benefit Plans and (ii) Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to recognize (or cause to be recognized) the dollar amount of all expenses incurred by Continuing Employees and their respective spouses, same-sex domestic partners or dependents during the plan year in which the Closing occurs for purposes of satisfying the deductibles and co-payment or out-of-pocket limitations for such plan year under the relevant Buyer Benefit Plans (to the extent such recognition would have been given under comparable Company Benefit Plans or Seller Benefit Plans prior to the Closing)Plan.
(dc) Buyer shall, or This Section 5.04 shall cause its respective Affiliates to, credit be binding upon and inure solely to the benefit of each Continuing Employee with the accrued and unused vacation days and any personal and sickness days accrued in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates in effect as of the Closing.
(e) The parties hereto acknowledge and agree that all provisions contained in this Section 5.5(e) are included for the sole benefit of the parties to this Agreement, and that nothing in this AgreementSection 5.04, whether express or implied, shall (i) confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.04 Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.04 shall not create any third party beneficiary or other rights (x) right in any other Person, including any current or former Business Employees, any participant in any Company Benefit Plan or any Seller Benefit Plan, or any dependent or beneficiary thereof, Employee or any other service provider of Seller or the Sold Companies, or (y) Person to employment or any continued employment with Buyerthe Company, the Sold Companies Buyer or any of their respective Affiliates, (ii) prevent Affiliates or restrict in any way the right of Buyer or any of its Affiliates to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service benefits of any such service providers at any time, (iii) be treated as an amendment nature or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its Affiliates, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any timekind whatsoever.
Appears in 2 contracts
Samples: Securities Exchange Agreement (Ecoark Holdings, Inc.), Securities Exchange Agreement (Humbl, Inc.)
Employees; Benefit Plans. (a) No By no later than five January 1, 2023 (5) Business Days after the date "New Employment Date"), subject to satisfactory background checks, due diligence results, and compliance with policies and procedures of this AgreementParent (or an applicable Parent Affiliate), Buyer shall deliver to each Business Employee all employees of the Company as of the date hereof, each of this Agreement (other than the Key Employees and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closingwhom is listed on Schedule 4.2(a), and no later than five (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and prior to the date that is six (6) Business Days prior to the Closing Date (subject to compliance with Section 5.1(b)(xvi) with respect to any such hiring, if applicable) (each, a “New Business Employee”), Buyer shall deliver to such Business Employee, in each case receive an offer of employment in the form attached hereto as Exhibit H (the “Offer Letter”), which Offer Letter shall, subject to the last sentence of this Section 5.6(a), provide for “at-will” employment with Buyer by Parent or an Affiliate thereof (including one of the Sold Companies) following the Closing and (i) an initial annual base salary or annual wage level, as applicable, that is not less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee immediately prior to the Closing, (ii) total annual target cash compensation (comprised of an initial annual base salary or annual wage level, as applicable, and, other than with respect to Business Employees participating in a sales incentive program as of immediately prior to the Closing, a bonus opportunity, as applicable) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior to the Closing, (iii) defined contribution pension and welfare benefits that are no less favorable, in the aggregate, than those provided to similarly situated employees of Buyer and its Affiliates, and (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior to the Closing. Each Business Employee (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letter, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate than the annual base salary or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively to similarly situated employees of Buyer and its Affiliates for a period of no less than one (1) year following the ClosingParent Affiliate; provided, however, thatthat Parent and the President of Xxxxxxx Marketplace shall retain the right, for Business Employees in their sole and absolute discretion, to determine that any of those employees shall instead remain employed outside by the Company. To the extent such employees enter into employment with Parent (or an applicable Parent Affiliate), and in connection therewith terminate employment with the Company, prior to the New Employment Date, then such employees still employed with Parent (or an applicable Parent Affiliate) on the New Employment Date shall nevertheless still be receive full credit or equivalent payments, compensation or commissions pursuant to the Company's existing bonus or commission plans as if such employees had been employed by the Company through the New Employment Date; provided, however, that such extension of full credit or equivalent payments, compensation or commissions shall be subject to the good faith approval of the United States, the terms and conditions Board of employment shall be as required by applicable LawDirectors of Parent (or relevant committee thereof).
(b) As soon as reasonably practicable By no later than October 1, 2022, the Agreement Employees and Xxxx Xxxxxx shall enter into new employment agreements with Parent whereby each agrees to customary non-competition and non-solicitation restrictive covenants for a period commencing on the Effective Date and ending up to one year after the date termination of this Agreement (andemployment, subject to applicable Law; provided, however, that with respect to any New Business EmployeeContributor residing in California, as soon as reasonably practicable after no non-competition restrictive covenant shall be required unless such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant Contributor and the Parent mutually agree to Section 5.6(a))include separate consideration (i.e., Buyer shall provide reasonable information "garden leave") for such non-competition period, subject to Business Employees regarding Buyer’s (or any of its applicable Affiliates’) employee benefit plans (to the extent such plans will be made available to Business Employees as contemplated by Section 5.6(a)) and employee orientation sessions with respect to the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies) (with such sessions to be held at the offices of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer). During the Pre-Closing Period, (i) Seller shall allow Buyer to meet with Business Employees (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer or any of its Affiliates intends to deliver to any of the Business Employees regarding his or her continued employment after the Closing at least 48 hours prior to the delivery of such communication to the Business Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall reasonably cooperate with Buyer to encourage and facilitate each of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery of such Offer Letter to such Business Employee and to not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor Buyer shall, and each of Seller and Buyer shall cause their Affiliates not to, make any communication to any Business Employee or engage in any other activity, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior to the Closing DateCalifornia Law.
(c) Buyer shallIn the event that any legal or business conflicts of interest develop between Parent and the Company after Closing, any Key Employee involved in the same shall recuse himself or herself from Parent's decisions and represent solely the interests of the Company. Reasonable information walls and other procedures shall be implemented to address the same. Any post-Closing conflicts of interest in violation of Parent's Code of Conduct shall be addressed on a case-by-case basis by the parties thereto.
(d) Unless otherwise agreed to in an employment agreement, the Key Employees' cash and long-term bonus plans shall be consistent with current employees of Parent or Parent Affiliate, provided however, that such Key Employee bonuses shall be determined based on the performance of the Company post-Closing pursuant to reasonably analogous metrics to Parent employee bonus plans, and provided further, however, that such Key Employees shall receive applicable credit, under such bonus plans, for any bonuses earned or partially earned prior to closing. Further, the existing "Specialist Commission Program" in place at the Company, or a comparable incentive mechanism with substantially the same metrics as approved by the President of Xxxxxxx Marketplace, shall cause its be substantially continued post-Closing. The Stock Plan shall be terminated at Closing.
(e) This Section 4.2 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 4.2, express or implied, shall confer upon any Company employee, any beneficiary, or any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 4.2. Nothing contained herein, express or implied: (i) shall be construed to establish, amend, or modify any benefit plan, program, agreement, or arrangement; (ii) shall alter or limit the ability of the Company, Parent, or any of their respective Affiliates toto amend, use reasonable best efforts modify, or terminate any benefit plan, program, agreement, or arrangement at any time assumed, established, sponsored, or maintained by any of them; or (iii) shall prevent the Company, Parent, or any of their respective Affiliates from terminating the employment of any Company employee or Key Employees following the Effective Time. The parties hereto acknowledge and agree that the terms set forth in this Section 4.2 shall not create any right in any Company employee, Key Employee or any other Person to recognize each Continuing Employee’s service any continued employment with Sellerthe Company, the Sold CompaniesParent, or any of their respective Affiliates or predecessors as compensation or benefits of the Closing Date as service with Buyer, the Sold Companies any nature or any of their respective Affiliates, as applicable, for all purposes (including eligibility, vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals under any defined benefit pension plan and any equity incentive plans) in Buyer’s or its Affiliates’ employee benefit plans, agreements, policies or other arrangements in which such Continuing Employees participate following the Closing Date (the “Buyer Benefit Plans”) (unless such credit would result in a duplication of benefits for the same period). In addition, (i) to the extent pre-existing condition limitations have been met or are otherwise inapplicable with respect to Continuing Employees under each Company Benefit Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan as of the Closing Date, Buyer shallkind whatsoever, or shall cause its Affiliates to, use commercially reasonable efforts to waive otherwise alters any such preexisting at-existing condition limitations under the corresponding Buyer Benefit Plans and (ii) Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to recognize (or cause to be recognized) the dollar amount of all expenses incurred by Continuing Employees and their respective spouses, same-sex domestic partners or dependents during the plan year in which the Closing occurs for purposes of satisfying the deductibles and co-payment or out-of-pocket limitations for such plan year under the relevant Buyer Benefit Plans (to the extent such recognition would have been given under comparable Company Benefit Plans or Seller Benefit Plans prior to the Closing).
(d) Buyer shall, or shall cause its respective Affiliates to, credit each Continuing Employee with the accrued and unused vacation days and any personal and sickness days accrued in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates in effect as of the Closing.
(e) The parties hereto acknowledge and agree that all provisions contained in this Section 5.5(e) are included for the sole benefit of the parties to this Agreement, and that nothing in this Agreement, whether express or implied, shall (i) create any third party beneficiary or other rights (x) in any other Person, including any current or former Business Employees, any participant in will employment relationship between any Company Benefit Plan employee or any Seller Benefit Plan, Key Employee and the Company or any dependent or beneficiary thereof, or any other service provider of Seller or the Sold Companies, or (y) to employment or continued employment with Buyer, the Sold Companies or any of their respective Affiliates, (ii) prevent or restrict in any way the right of Buyer or any of its Affiliates to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service of any such service providers at any time, (iii) be treated as an amendment or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its Affiliates, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any timeParent.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Hagerty, Inc.)
Employees; Benefit Plans. (a) No later than five During the period commencing at the Closing and ending on the Relevant Date (5) Business Days after or if earlier, the date of this Agreement, Buyer shall deliver to each Business Employee as the employee’s termination of employment with the date of this Agreement (other than the Key Employees and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing), and no later than five (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and prior to the date that is six (6) Business Days prior to the Closing Date (subject to compliance with Section 5.1(b)(xvi) with respect to any such hiring, if applicable) (each, a “New Business Employee”Company), Buyer shall deliver to such Business Employee, in and shall cause the Company and each case an offer of employment in the form attached hereto as Exhibit H (the “Offer Letter”), which Offer Letter shall, subject to the last sentence of this Section 5.6(a), provide for “at-will” employment with Buyer or an Affiliate thereof (including one Subsidiary of the Sold Companies) following Company to provide each employee of the Company and each Subsidiary of the Company who remains employed immediately after the Closing and (“Company Continuing Employee”) with: (i) an initial annual base salary or annual wage level, as applicable, that is not hourly wages which are no less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee hourly wages provided by the Company or applicable Subsidiary of the Company immediately prior to the Closing, ; (ii) total target annual target cash compensation bonus opportunities (comprised of an initial annual base salary excluding equity-based, retention, transaction-related or annual wage levelother non-recurring compensation), as applicableif any, and, other than with respect to Business Employees participating in a sales incentive program as of immediately prior to the Closing, a bonus opportunity, as applicable) that is not which are no less than the total target annual target cash compensation in effect for each such Business Employee immediately prior bonus opportunities (excluding equity-based, retention, transaction-related or other non-recurring compensation) provided by Buyer to the Closing, its similarly-situated employees; (iii) defined contribution pension retirement and welfare benefits (other than benefits under any defined benefit pension or retiree health or welfare plan) that are no less favorable, in the aggregate, than those provided to similarly situated employees of Buyer and its Affiliates, and (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior to the Closing. Each Business Employee (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letter, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate than the annual base salary or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits those provided collectively by Buyer to similarly its similarly-situated employees of Buyer and its Affiliates for a period of no less (other than one (1) year following the Closing; provided, however, that, for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable Law.
(b) As soon as reasonably practicable after the date of this Agreement (and, with respect to any New Business Employee, as soon as reasonably practicable after such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant to Section 5.6(a)), Buyer shall provide reasonable information to Business Employees regarding Buyer’s (or any of its applicable Affiliates’) employee benefit plans (to the extent such plans will be made available to Business Employees as contemplated by Section 5.6(a)) and employee orientation sessions with respect to the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies) (with such sessions to be held at the offices of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer). During the Pre-Closing Period, (i) Seller shall allow Buyer to meet with Business Employees (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer or any of its Affiliates intends to deliver to any of the Business Employees regarding his or her continued employment after the Closing at least 48 hours prior to the delivery of such communication to the Business Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall reasonably cooperate with Buyer to encourage and facilitate each of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery of such Offer Letter to such Business Employee and to not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor Buyer shall, and each of Seller and Buyer shall cause their Affiliates not to, make any communication to any Business Employee or engage in any other activity, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior to the Closing Date.
(c) Buyer shall, or shall cause its Affiliates to, use reasonable best efforts to recognize each Continuing Employee’s service with Seller, the Sold Companies, or any of their respective Affiliates or predecessors as of the Closing Date as service with Buyer, the Sold Companies or any of their respective Affiliates, as applicable, for all purposes (including eligibility, vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals benefits under any defined benefit pension or retiree health or welfare plan); and (iv) severance benefits that are no less favorable than the practice, plan and any equity incentive plans) or policy of Buyer in Buyer’s or effect for its Affiliates’ employee benefit planssimilarly-situated employees (with service to be credited as provided in Section 7.9(b)); provided that, agreements, policies or other arrangements in which such Continuing Employees participate following the Closing Date (the “Buyer Benefit Plans”) (unless such credit would result in a duplication of benefits for the same period). In addition, (i) as to the extent pre-existing condition limitations have been met or are otherwise inapplicable with respect to Continuing Employees under each Company Benefit Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan as of the Closing Date, Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to waive any such pre-existing condition limitations under the corresponding Buyer Benefit Employee Plans and covered by clauses (ii) and (iii) of this Section 7.9(a), Buyer shallmay, or shall in its discretion, cause its Affiliates to, use commercially reasonable efforts to recognize (or cause to be recognized) the dollar amount of all expenses incurred by Company Continuing Employees and their respective spouses, same-sex domestic partners or dependents during the plan year to continue to participate in which the Closing occurs for purposes of satisfying the deductibles and co-payment or out-of-pocket limitations for such plan year under the relevant Buyer Benefit Employee Plans (to the extent such recognition would have been given under comparable Company Benefit Plans or Seller Benefit Plans prior to the Closing).
(d) Buyer shall, or shall cause its respective Affiliates to, credit each Continuing Employee with the accrued and unused vacation days and any personal and sickness days accrued in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates as in effect as of immediately prior to the Closing.
Closing from the Closing Date through the Relevant Date. The “Relevant Date” shall be: (ex) The parties hereto acknowledge and agree that all provisions contained in this Section 5.5(e) are included for the sole benefit of the parties with respect to this Agreement, and that nothing in this Agreement, whether express or implied, shall clauses (i) create any third party beneficiary or other rights and (xiv) in any other Personof this Section 7.9(a), including any current or former Business Employees, any participant in any Company Benefit Plan or any Seller Benefit Plan, or any dependent or beneficiary thereof, or any other service provider of Seller or the Sold Companies, or date which is twelve (12) months from the Closing; and (y) with respect to employment or continued employment with Buyer, the Sold Companies or any of their respective Affiliates, clauses (ii) prevent or restrict in any way the right of Buyer or any of its Affiliates to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service of any such service providers at any time, and (iii) be treated as an amendment or other modification of any Company Benefit Planthis Section 7.9(a), any Seller Benefit PlanDecember 31, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its Affiliates, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time2019.
Appears in 1 contract
Employees; Benefit Plans. (a) No later Except as otherwise agreed in writing by any Employee or as provided in any employment agreement assumed or entered into by or between Buyer or its Affiliate and any Employee, Buyer shall cause and shall cause its Affiliates (including the Company and the Company Subsidiaries or any other successor employer), for the period commencing at the Closing Date and ending on the first anniversary thereof (or, if shorter, for the period of employment of the applicable Employee), to maintain for each such Employee (i) base salary or wages that are no less favorable than five (5) Business Days after the base salary or wages provided to such Employee by Seller or its Affiliate as of the date of this Agreement, Buyer shall deliver to each Business Employee as and (ii) substantially the same benefits, including severance benefits (but excluding, for the avoidance of the date of this Agreement (other than the Key Employees and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing)doubt, and no later than five (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and prior to the date that is six (6) Business Days prior to the Closing Date (subject to compliance with Section 5.1(b)(xvi) with respect to any such hiring, if applicable) (each, a “New Business Employee”), Buyer shall deliver to such Business Employee, in each case an offer of employment benefits in the form attached hereto as Exhibit H (the “Offer Letter”of equity or equity-linked compensation), which Offer Letter shall, subject that the Buyer provides to the last sentence of this Section 5.6(a), provide for “at-will” employment its employees with Buyer similar title and combined service with Seller or an Affiliate thereof (including one of the Sold Companies) following the Closing its Affiliates and (i) an initial annual base salary or annual wage level, as applicable, that is not less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee immediately prior to the Closing, (ii) total annual target cash compensation (comprised of an initial annual base salary or annual wage level, as applicable, and, other than with respect to Business Employees participating in a sales incentive program as of immediately prior to the Closing, a bonus opportunity, as applicable) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior to the Closing, (iii) defined contribution pension and welfare benefits that are no less favorable, in the aggregate, than those provided to similarly situated employees of Buyer and its Affiliates, and (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior to the Closing. Each Business Employee (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letter, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate than the annual base salary or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively to similarly situated employees of Buyer and its Affiliates for a period in accordance with the terms of no less than one (1) year following the ClosingBuyer’s or its Affiliates’ standard benefit plans; provided, however, that, for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable Law.
(b) As soon as reasonably practicable after the date of this Agreement (and, with respect to any New Business Employee, as soon as reasonably practicable after that each such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant to Section 5.6(a)), Buyer shall provide reasonable information to Business Employees regarding Buyer’s (or any of its applicable Affiliates’) employee benefit plans (to the extent such plans will be made available to Business Employees as contemplated by Section 5.6(a)) and employee orientation sessions with respect to the continued employment of the Business Employees after the Closing with Buyer or and its Affiliates (including the Sold CompaniesCompany and the Company Subsidiaries) (with such sessions following the Closing shall be on an at-will basis, terminable by either party. Buyer shall pay all 2017 cash incentive bonuses to be held at the offices applicable Employees as set forth in Section 3.21(a) of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer)Disclosure Schedules no later than January 31, 2018. During Notwithstanding anything set forth below or herein to the Pre-Closing Periodcontrary, (i) Seller nothing in this Agreement shall allow create any obligation on the part of Buyer to meet with Business Employees (either individually continue, or in groups) during breaksto cause the continuation of, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after any individual for any period following the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business EmployeesDate, and (ii) Buyer nothing in this Agreement shall provide to Seller each material written communication (including all forms of Offer Letters), preclude Buyer or any of its Affiliates intends to deliver (including, following the Closing, the Company and the Company Subsidiaries) from altering, amending, or terminating any of its employee benefit plans, or the participation of any of its employees in such plans, at any time. With respect to any of Employee who is terminated by Buyer within one year after the Business Employees regarding Closing Date, Buyer shall pay severance to such Employee based on his or her continued employment after combined service with Seller or its Affiliates and Buyer and its Affiliates in accordance with the terms of Buyer’s or its Affiliates’ standard severance policy in effect as of the Closing at least 48 hours Date (as set forth on Schedule 10 attached hereto) to the extent that such policy would provide for severance benefits in connection with a termination under the same circumstances.
(b) Seller shall retain and be responsible for all liabilities, obligations and costs incurred or arising prior to (including in connection with) the delivery of such communication Closing relating to the Business Employees or former employees, officers, and other service providers (and their respective dependents). Seller will pay all workers’ compensation benefits with respect to injuries occurring to any Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreementor former employee, Seller shall reasonably cooperate with Buyer to encourage and facilitate each of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery of such Offer Letter to such Business Employee and to not revoke officer, or repudiate such Offer Letter other service provider on or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor . Buyer shall, and each of Seller and Buyer shall cause their Affiliates not to, make any communication will pay all workers’ compensation benefits with respect to injuries occurring to any Business Employee while in the employ of Buyer or engage in any other activity, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior to its Affiliates after the Closing Date.
(c) Buyer shall, or shall cause its Affiliates to, use reasonable best efforts to recognize each Continuing Employee’s service with Seller, the Sold Companies, or any For purposes of their respective Affiliates or predecessors as of the Closing Date as service with Buyer, the Sold Companies or any of their respective Affiliates, as applicable, for all purposes (including determining eligibility, vesting, eligibility waiting periods vesting and benefit accruals under Buyer’s employee benefit plans, including, but excluding not limited to, Buyer’s 401(k) plan, retirement plan (but not benefit accruals under any defined benefit pension plan retirement plan), group health plan, group life insurance plan, vacation, sick pay and any equity incentive plans) in Buyer’s severance policies, such policies shall recognize as employment with Buyer the period of employment of the Employee that was recognized by Seller or its Affiliates’ employee benefit plans, agreements, policies or other arrangements in which such Continuing Employees participate following the Closing Date (the “Buyer Affiliates under its Benefit Plans”) (unless such credit would result in a duplication of benefits for the same period). In addition, (i) to the extent pre-existing condition limitations have been met or are otherwise inapplicable with respect to Continuing Employees under each Company Benefit Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan as of the Closing Date, Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to waive any such pre-existing condition limitations under the corresponding Buyer Benefit Plans and (ii) Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to recognize (or cause to be recognized) the dollar amount of all expenses incurred by Continuing Employees and their respective spouses, same-sex domestic partners or dependents during the plan year in which the Closing occurs for purposes of satisfying the deductibles and co-payment or out-of-pocket limitations for such plan year under the relevant Buyer Benefit Plans (to the extent such recognition would have been given under comparable Company Benefit Plans or Seller Benefit Plans prior to the Closing).
(d) Buyer shallExcept for the employment agreements, or employment letters, promote agreements and the IHS and IHS PM employees’ employment agreements set forth in Section 3.16(a) of the Disclosure Schedules, all Employees shall cease participation, and Seller shall cause the Company and each Company Subsidiary to cease being a participating employer, in all of the Benefit Plans of MMAC or its respective Affiliates to, credit each Continuing Employee with the accrued and unused vacation days and any personal and sickness days accrued in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates in effect as of immediately prior to the Closing.
(e) The parties hereto acknowledge For the avoidance of doubt, neither Buyer nor any of its Affiliates (including, following the Closing, the Company and agree that the Company Subsidiaries) will assume the sponsorship or any liability with respect to or under any Benefit Plans of MMAC or its Affiliates (except as expressly assumed under this Agreement).
(f) MMAC and its Affiliates hereby consent to the continued employment of the Employees by Buyer and its Affiliates and waive, to the extent arising in connection with the employment of the Employees by Buyer and its Affiliates, any claims or rights MMAC or any of its Affiliates may have under any non-competition, confidentiality, or non-solicitation covenants with any of the Employees. MMAC and its Affiliates shall cooperate in a commercially reasonable manner with Buyer and its Affiliates to provide an orderly administrative transition to Buyer of each Employee, including the provision by MMAC and its Affiliates to Buyer of all provisions contained necessary or appropriate documents, records, materials, accounting files, and Tax information in this MMAC’s or its Affiliate’s possession with respect to such Employee to the extent permitted under applicable Laws.
(g) This Section 5.5(e) are included for 5.01 shall be binding upon and inure solely to the sole benefit of each of the parties to this Agreement, and that nothing in this AgreementSection 5.01, whether express or implied, shall (i) create any third party beneficiary or other rights (x) in confer upon any other PersonPerson any rights or remedies of any nature whatsoever under or by reason of this Section 5.01. Nothing contained herein, including express or implied, shall be construed to establish, amend or modify any current benefit plan, program, agreement or former Business Employees, any participant in any Company Benefit Plan arrangement or any Seller Benefit Plan, or any dependent or beneficiary thereof, or any other service provider of Seller or the Sold Companies, or (y) to employment or continued employment with Buyer, the Sold Companies or any of their respective Affiliates, (ii) prevent or restrict in any way the right of Buyer or any of its Affiliates to terminatefrom establishing, reassignamending, promote modifying, or demote terminating any such benefit plan, program, agreement or arrangement, or from terminating the employment of any employee, consultant, director, manager or other service provider of following the Sold Companies (or to cause Closing. The Parties acknowledge and agree that the terms set forth in this Section 5.01 shall not create any of the foregoing actions) at right in any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service of any such service providers at any time, (iii) be treated as an amendment or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan employee or any other employee benefit plan, program or arrangement maintained by Person to any continued employment with Buyer or any of its AffiliatesAffiliates or to any compensation or benefits of any nature, kind, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any timeamount whatsoever.
Appears in 1 contract
Samples: Master Transaction Agreement (Mma Capital Management, LLC)
Employees; Benefit Plans. (a) No later Contained in SCHEDULE 5.5(a) attached hereto is a confidential schedule setting forth the name, date of hire, annual compensation or hourly rates (including any currently taxable profit sharing, bonus or other form of compensation) as of the Effective Date of all current employees of the Company (the "EXISTING EMPLOYEES"). Subsequent to the execution of this Agreement and in order to enable the Purchaser to assess the qualifications of each of the Existing Employees, the Seller shall provide the Purchaser with an opportunity to confer with the Company's terminal manager as well as to meet each of the Existing Employees. As soon as is reasonably practicable, and in any event on or before the Closing Date, the Purchaser shall advise the Seller of the name or positions of any Existing Employees (other than five Messrs. Challenger and Narro) up to a maximum of eight (5) Business Days 8) whose employment with the Cxxxxxy the Purchaser intends, within 45 days after the date Closing Date, to discontinue. For the purposes of this Agreement, Buyer any such Existing Employee or Employees whose employment with the Company the Purchaser intends to discontinue and has so advised the Seller as provided above shall deliver be considered to be a "DISCONTINUED EMPLOYEE". All Continuing Employees shall be employed on an "at will" basis and their compensation arrangement shall not be less than each Business Employee such Continuing Employee's compensation as of the date of this Agreement (other than the Key Employees June 30, 1998 and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing), and no later than five (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and their compensation shall not be decreased prior to the date that is six (6) Business Days prior to first anniversary of the Closing Date (subject to compliance with Section 5.1(b)(xvi) with respect to any such hiring, if applicable) (each, a “New Business Employee”), Buyer shall deliver to such Business Employee, in each case an offer of employment in the form attached hereto as Exhibit H (the “Offer Letter”), which Offer Letter shall, subject to the last sentence of this Section 5.6(a), provide for “at-will” employment with Buyer or an Affiliate thereof (including one of the Sold Companies) following the Closing and (i) an initial annual base salary or annual wage level, as applicable, that is not less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee immediately prior to the Closing, (ii) total annual target cash compensation (comprised of an initial annual base salary or annual wage level, as applicable, and, other than with respect to Business Employees participating in a sales incentive program as of immediately prior to the Closing, a bonus opportunity, as applicable) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior to the Closing, (iii) defined contribution pension and welfare benefits that are no less favorable, in the aggregate, than those provided to similarly situated employees of Buyer and its Affiliates, and (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior to the Closing. Each Business Employee (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letter, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate than the annual base salary or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively to similarly situated employees of Buyer and its Affiliates for a period of no less than one (1) year following the ClosingDate; provided, however, that, that the rate of compensation of any such Continuing Employee may be decreased if such decrease is imposed for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable Law.
(b) As soon as reasonably practicable after the date of this Agreement (and, with respect to any New Business Employee, as soon as reasonably practicable after such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant to Section 5.6(a)), Buyer shall provide reasonable information to Business Employees regarding Buyer’s (or any of its applicable Affiliates’) employee benefit plans (to the extent such plans will be made available to Business Employees as contemplated by Section 5.6(a)) and employee orientation sessions with respect to the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies) (with such sessions to be held at the offices of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed disciplinary purposes in writing by Seller and Buyer). During the Pre-Closing Period, (i) Seller shall allow Buyer to meet with Business Employees (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection accordance with the continued employment Purchaser's established practice in a manner which is not arbitrary, capricious or discriminatory. The Purchaser agrees to grant all Continuing Employees credit for purposes of eligibility and vesting under the Business Employees after Purchaser's Benefit Plans for their years of service with the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer Company or any of its Affiliates intends to deliver to any of the Business Employees regarding his or her continued employment after the Closing at least 48 hours prior to the delivery of such communication to the Business Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall reasonably cooperate with Buyer to encourage and facilitate each of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery of such Offer Letter to such Business Employee and to not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor Buyer shall, and each of Seller and Buyer shall cause their Affiliates not to, make any communication to any Business Employee or engage in any other activity, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior to the Closing Date.
(cb) Buyer shall, On or shall cause its Affiliates to, use reasonable best efforts to recognize each Continuing Employee’s service with Seller, the Sold Companies, or any of their respective Affiliates or predecessors as of the Closing Date as service with Buyer, the Sold Companies or any of their respective Affiliates, as applicable, for all purposes (including eligibility, vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals under any defined benefit pension plan and any equity incentive plans) in Buyer’s or its Affiliates’ employee benefit plans, agreements, policies or other arrangements in which such Continuing Employees participate following the Closing Date (the “Buyer Benefit Plans”) (unless such credit would result in a duplication of benefits for the same period). In addition, (i) to the extent pre-existing condition limitations have been met or are otherwise inapplicable with respect to Continuing Employees under each Company Benefit Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan as of before the Closing Date, Buyer shallbut with effect as of June 30, 1998, the Seller shall take such action as is necessary to terminate or to cause the Company to terminate its participation in all Benefit Plans, practices and arrangements sponsored by the Seller or any of its Affiliates and in which the Existing Employees of the Company participate. Except as expressly retained by the Seller in this Section 5.5, from and after the Effective Date the Purchaser will assume and be solely responsible for all obligations and liabilities relating to (i) the employment or termination of employment of any Continuing Employee, including without limitation liability for severance benefits for Continuing Employees other than for severance benefits retained by the Seller in Section 5.5(c), (ii) the termination of employment of Discontinued Employees including without limitation any liability of the Seller or its Affiliates for any claims, judgments, costs, expenses or attorney's fees arising out of such termination other than for any severance benefits retained by the Seller in Section 5.5(c) and (iii) the termination of employment of any Existing Employee who, although he or she was not designated as a Discontinued Employee and was intended to be a Continuing Employee, either fails a drug screening test administered during the course of implementation of the Purchaser's drug policy, or shall cause its otherwise violates the conditions of the Purchaser's drug policy.
(c) In respect of Former Employees and Discontinued Employees and except as provided in Section 5.5(b)(ii), the Seller will retain all liabilities and obligations relating to such Employees and will promptly reimburse the Purchaser for or receive from the Purchaser, as the case may be, all obligations and liabilities, if any, for (i) any earned and unpaid vacation time to the Effective Date for Continuing Employees and Discontinued Employees, (ii) severance benefits delineated in SCHEDULE 3.21(e) which are payable through the Company under a plan or policy of the Seller or any of the Seller's Affiliates toadopted for the benefit of Discontinued Employees, use commercially reasonable efforts (iii) any obligations arising under any employment or other similar agreements with respect to waive any such pre-existing condition limitations Former Employees and Messrs. Challenger and Narro, (iv) benefits accrued or expense or liability incurred tx xxx Effective Date under any Benefit Plan, (v) continuation coverage required by Code /section/ 4980B(f) under the corresponding Buyer Company's Group Health Plans with respect to any Former Employee, (vi) retiree medical benefits under any Benefit Plans Plan, determined without regard to any modifications to such benefits by the Purchaser on or after the Closing Date and (vii) any and all obligations or benefits arising from any Benefit Plan, any plan or policy of the Company to any Former Employees and any obligations of the Company arising under any agreement with respect to all Former Employees. If a Former Employee or Discontinued Employee, as the case may be, is rehired by the Purchaser or any Affiliate of the Purchaser within eighteen (18) months following the date of such termination (and is not again terminated within the 12-month period beginning on the Effective Date), the Purchaser will reimburse the Seller for any obligations or liabilities incurred by the Seller with respect to such Former Employee or Discontinued Employee under clause (ii) or (iii) of this Section 5.5(c). The Purchaser will promptly notify the Seller if a Former Employee or Discontinued Employee is rehired as described in the preceding sentence, and will pay any required reimbursement within thirty (30) days after the amount of the obligation or liability is determined. The obligations under clauses (i), (ii) and (iii) of this Section 5.5(c) will be paid through the Purchaser's or the Company's payroll, as the case may be. The Seller will reimburse the Purchaser within ten (10) days after notification of such payment of the obligations referred to in clauses (i) and (ii) Buyer shallof this Section 5.5(c), or shall cause its Affiliates toand the Seller will provide, use commercially reasonable efforts upon notice from the Purchaser, the funds necessary to recognize pay the obligations referred to in clause (or cause to be recognizediii) the dollar amount of all expenses incurred by Continuing Employees and their respective spouses, same-sex domestic partners or dependents during the plan year in which the Closing occurs for purposes of satisfying the deductibles and co-payment or out-of-pocket limitations for such plan year under the relevant Buyer Benefit Plans (to the extent such recognition would have been given under comparable Company Benefit Plans or Seller Benefit Plans prior to the Closingthis Section 5.5(c).
(d) Buyer shallThe first pay period on or after the Closing Date, or the Purchaser shall cause its respective Affiliates to, credit each take all action necessary and appropriate to extend eligibility for coverage under the TransMontaigne Oil Company Savings and Profit Sharing Plan (the "PURCHASER SAVINGS PLAN") to the Continuing Employee Employees. The Continuing Employees shall be credited with service under the Purchaser Savings Plan for purposes of eligibility and vesting with the accrued and unused vacation days and any personal and sickness days accrued in accordance with service credited to them under the vacation and personnel policies terms of Sellerthe Statia Thrift Plan or which they would have been credited had they xxxxxxxxxted therein. In all other respects, the Sold Companies or any Continuing Employees shall participate in the Purchaser Savings Plan according to the terms and conditions of their respective Affiliates the Purchaser Savings Plan as in effect as of the Closingfrom time to time.
(e) The parties hereto acknowledge For calendar year 1998, all vacation entitlement for Continuing Employees shall be determined in accordance with the Seller's or its Affiliates vacation policy as extended to the Company, and agree that all provisions contained any Continuing Employee with accrued but unused vacation entitlement as of the Closing Date must schedule and take such vacation in this Section 5.5(e) are included accordance with the Purchaser's vacation policy. Liability for the sole benefit cost of any unused vacation entitlement of a Continuing Employee (to the parties extent such entitlement differs from the Purchaser's existing vacation policy) shall be calculated to this Agreementthe Effective Date and accounted for and reconciled under the provisions of Section 5.15. Commencing January 1, and that nothing in this Agreement, whether express or implied, shall (i) create any third party beneficiary or other rights (x) in any other Person, including any current or former Business Employees, any participant in any Company Benefit Plan or any Seller Benefit Plan, or any dependent or beneficiary thereof, or any other service provider of Seller or the Sold Companies, or (y) to employment or continued employment with Buyer1999, the Sold Companies or any of their respective AffiliatesContinuing Employees shall accrue and be entitled to vacation pursuant to the Purchaser's vacation policy, (ii) prevent or restrict as in any way the right of Buyer or any of its Affiliates effect from time to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause giving credit for their years of service with the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service of any such service providers at any time, (iii) be treated as an amendment or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its Affiliates.
(f) The Seller shall be solely responsible for compliance with the health care continuation requirements of Code /section/ 4980B and Part 6 of Title I of ERISA (referred to as "COBRA") with respect to all Former Employees of the Company who incurred a qualifying event (within the meaning of Code /section/ 4980B(f)(3) and ERISA /section/ 603) prior to the Effective Date. The Seller shall be solely responsible for compliance with COBRA with respect to all Former Employees who had elected COBRA continuation coverage prior to the Closing. The Purchaser shall be solely responsible for compliance with COBRA with respect to all Continuing Employees who participate in the Purchaser's Group Health Plan after the Closing, and who, or whose beneficiaries, experience a qualifying event from and after the Closing Date.
(g) The Purchaser will waive, or will cause the Company to waive, any preexisting condition limitations applicable to Continuing Employees under any Group Health Plan of the Seller or its Affiliates as extended to the Company; provided, however, that if a Continuing Employee's condition is a condition which is currently not covered under the Purchaser's Group Health Plan, such condition shall not be so waived and the Purchaser shall have no obligation or liability therefor. In addition, the Purchaser will take all action necessary to ensure that Continuing Employees are given full credit for all co-payments and deductibles incurred by such Continuing Employees under the Seller's Group Health Plan for the 1998 plan year.
(h) The Seller shall discharge all liabilities for claims for workers compensation benefits for Continuing Employees arising out of occurrences prior to the Effective Date. The Purchaser shall discharge all liabilities for claims for workers compensation benefits for Continuing Employees arising out of occurrences on or after the Effective Date.
(i) The actions taken by Seller in subsection (a) above with respect to the Existing Employees shall be deemed a "qualifying event" with respect to all Existing Employees participating in the Statia Terminals 401(k) Plan (the "STATIA THRIFT PLAN") and Seller shall provide each such particixxxx xxxx x xetter advising that a qualifying event has occurred and advising such participant of their distribution election to (a) take a cash distribution, (b) rollover their vested account balance into an individual retirement account, (c) rollover their vested account balance to the Purchaser's Savings Plan, or (ivd) obligate Buyer if applicable, leave their vested account balance in the Statia Thrift Plan. Further, Seller shall effect a partial plan xxxxxxxxxxx of the Statia Thrift Plan, if applicable under the circumstances, and take xxxx xxxions as may be necessary or required as a result thereof with respect to each participant's account balance and the vesting thereof.
(j) Except as expressly provided herein, the Company shall provide to Continuing Employees after the Closing only those benefits that are expressly provided to be furnished by the Purchaser after the Closing in this Section 5.5 and no provision of this Agreement shall restrict the Purchaser from amending any of its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any timeBenefit Plans after the Closing Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Statia Terminals Canada Inc)
Employees; Benefit Plans. (a) No later than five For a period of one year following the Closing Date, 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, including any individual on short-term disability leave immediately prior to the Effective Time (5each, an “Employee”) Business Days after with (i) at least the date same salary or hourly wage rate provided to such Employee immediately prior to the Effective Time, (ii) at least the same short-term (annual or more frequent) cash 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 in the case of this Agreementclause (iii) are either, Buyer shall deliver to each Business Employee in Parent’s sole discretion, (A) not materially less favorable in the aggregate than those provided as of the date of this Agreement (other than the Key Employees and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing), and no later than five (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and prior to the date that is six Employees considered as a group or (6B) Business Days prior substantially similar to the Closing Date (subject to compliance with Section 5.1(b)(xvi) with respect to any such hiring, if applicable) (each, a “New Business Employee”), Buyer shall deliver to such Business Employee, in each case an offer of employment in the form attached hereto as Exhibit H (the “Offer Letter”), which Offer Letter shall, subject to the last sentence of this Section 5.6(a), provide for “at-will” employment with Buyer or an Affiliate thereof (including one of the Sold Companies) following the Closing and (i) an initial annual base salary or annual wage level, as applicable, that is not less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee immediately prior to the Closing, (ii) total annual target cash compensation (comprised of an initial annual base salary or annual wage level, as applicable, and, other than with respect to Business Employees participating in a sales incentive program as of immediately prior to the Closing, a bonus opportunity, as applicable) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior to the Closing, (iii) defined contribution pension and welfare benefits that are no less favorable, in the aggregate, than those being provided to similarly situated employees of Buyer and its Affiliates, and Parent (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior to the Closing. Each Business Employee (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letter, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate other than the annual base salary or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively to similarly situated employees of Buyer and its Affiliates for a period of no less than one (1) year following the Closing; provided, however, that, for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable Law.
(b) As soon as reasonably practicable after the date of this Agreement (and, with respect to any New Business Employee, as soon as reasonably practicable after such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant to Section 5.6(aEmployees)), Buyer shall provide reasonable information to Business Employees regarding Buyer’s (or any of its applicable Affiliates’) employee benefit plans (to the extent such plans will be made available to Business Employees as contemplated by Section 5.6(a)) and employee orientation sessions with respect to the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies) (with such sessions to be held at the offices of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer). During the Pre-Closing Period, (i) Seller shall allow Buyer to meet with Business Employees (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer or any of its Affiliates intends to deliver to any of the Business Employees regarding his or her continued employment after the Closing at least 48 hours prior to the delivery of such communication to the Business Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreementherein, Seller after the Effective Time, nothing herein shall reasonably cooperate with Buyer 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 encourage and facilitate each retain any employee or group of employees of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery Company or any of such Offer Letter to such Business Employee and to its Subsidiaries. This Section 5.7(a) shall not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor Buyer shall, and each of Seller and Buyer shall cause their Affiliates not to, make any communication apply to any Business Employee Person covered by the Executive Agreement or engage in any other activity, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior to the Closing Datecollective bargaining agreement.
(cb) Buyer Parent shall, or shall cause its Affiliates to, use reasonable best efforts to recognize the Surviving Corporation and each Continuing Employee’s service with Seller, the Sold Companies, or any of their respective Affiliates to, honor all Company Benefit Plans (including all severance, change of control and similar plans and agreements) in accordance with their terms as in effect on the date hereof (subject to any modification thereof made in accordance with Section 5.1(d) of this Agreement, subject to any amendment or predecessors termination thereof that may be permitted by such Company Benefit Plans and except as provided herein; provided, that nothing herein shall prevent the amendment or termination of the Closing Date as service any specific plan, program policy, agreement or arrangement, or interfere with BuyerParent’s, the Sold Companies Surviving Corporation’s or any of their respective Affiliates, ’ rights or obligations to make such changes as applicable, for are necessary to comply with applicable Law.
(c) For all purposes (including eligibility, vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals under any employee benefit plans or arrangement of Parent, the Surviving Corporation and 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 pension plan or other defined benefit pension plan and any equity incentive plansplan) in Buyer’s or its Affiliates’ employee benefit plans, agreements, policies or other arrangements in which such Continuing Employees participate following the Closing Date (the “Buyer Benefit New Plans”), Parent shall use commercially reasonable efforts to 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 (unless including predecessor or acquired entities or any other entities) for purposes of eligibility to participate in and vesting thereunder (but not benefit accrual), (except to the extent such 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 same periodapplicable Affiliate do not receive past service credit). In addition, (iii) at the Effective Time, any waiting time limitation in any New Plan is waived to the extent such waiting time was satisfied under the 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 have been met and actively-at-work requirements of each New Plan be waived or are otherwise inapplicable with respect satisfied for such Employee and his or her covered dependents to Continuing Employees the extent waived or satisfied under each Company Benefit the analogous Old Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan as of the Closing Date, Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to waive any such pre-existing condition limitations under the corresponding Buyer Benefit Plans Effective Time and (iiiv) Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to recognize (or cause to be recognized) the dollar amount of all eligible expenses incurred by Continuing Employees each Employee and their respective spouses, same-sex domestic partners his or her covered dependents during in respect of the plan year in which the Closing occurs be taken into account for purposes of satisfying the deductibles all deductible, coinsurance and co-payment or maximum out-of-pocket limitations requirements applicable to such Employee and his or her covered dependents for such applicable plan year under the relevant Buyer Benefit Plans (as if such amounts had been paid in accordance with such New Plan. Notwithstanding anything in this Agreement to the extent such recognition would contrary, no Employee shall have been given under comparable Company Benefit Plans any right by virtue of this Agreement or Seller Benefit Plans prior the Transactions to the Closing)participate in any pension plan or other defined benefit plan maintained by Parent or in Parent’s supplemental retirement plan.
(d) Buyer shallUpon the Closing, or Parent shall cause its respective Affiliates to, credit each Continuing Employee with the accrued Surviving Corporation to (i) assume the liabilities and unused vacation days and any personal and sickness days accrued in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates in effect as obligations of the ClosingCompany set forth in the collective bargaining agreements (as extended) that cover one or more of the Employees, and (ii) if necessary to effect such assumption, to accept an assignment of all or a portion of such liabilities and obligations, in each case to the extent required by such collective bargaining agreements.
(e) The parties hereto acknowledge and agree that all provisions contained Nothing in this Section 5.5(e) are included for the sole benefit of the parties to this Agreement, and that nothing in this Agreement5.7, whether express or implied, shall (i) create any third party beneficiary or other rights (x) in any other Person, including confer upon any current or former Business Employeesemployee of the Company, any participant in any Company Benefit Plan or any Seller Benefit Plan, or any dependent or beneficiary thereof, or any other service provider of Seller or the Sold Companies, or (y) to employment or continued employment with BuyerParent, the Sold Companies Surviving Corporation or any of their respective Affiliates, (ii) prevent any rights or restrict in remedies including any way right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Section 5.7. No provision of this Section 5.7 is intended to modify, amend or create any employee benefit plan of the right of Buyer Company, Parent, Surviving Corporation or any of its Affiliates to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service of any such service providers at any time, (iii) be treated as an amendment or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its their respective Affiliates, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time.
Appears in 1 contract
Samples: Merger Agreement (Annie's, Inc.)
Employees; Benefit Plans. (a) No later than five For a period of one year following the Closing Date, 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, including any individual on short-term disability leave immediately prior to the Effective Time (5each, an "Employee") Business Days after with (i) at least the date same salary or hourly wage rate provided to such Employee immediately prior to the Effective Time, (ii) at least the same short-term (annual or more frequent) cash 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 in the case of this Agreementclause (iii) are either, Buyer shall deliver to each Business Employee in Parent's sole discretion, (A) not materially less favorable in the aggregate than those provided as of the date of this Agreement (other than the Key Employees and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing), and no later than five (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and prior to the date that is six Employees considered as a group or (6B) Business Days prior substantially similar to the Closing Date (subject to compliance with Section 5.1(b)(xvi) with respect to any such hiring, if applicable) (each, a “New Business Employee”), Buyer shall deliver to such Business Employee, in each case an offer of employment in the form attached hereto as Exhibit H (the “Offer Letter”), which Offer Letter shall, subject to the last sentence of this Section 5.6(a), provide for “at-will” employment with Buyer or an Affiliate thereof (including one of the Sold Companies) following the Closing and (i) an initial annual base salary or annual wage level, as applicable, that is not less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee immediately prior to the Closing, (ii) total annual target cash compensation (comprised of an initial annual base salary or annual wage level, as applicable, and, other than with respect to Business Employees participating in a sales incentive program as of immediately prior to the Closing, a bonus opportunity, as applicable) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior to the Closing, (iii) defined contribution pension and welfare benefits that are no less favorable, in the aggregate, than those being provided to similarly situated employees of Buyer and its Affiliates, and Parent (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior to the Closing. Each Business Employee (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letter, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate other than the annual base salary or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively to similarly situated employees of Buyer and its Affiliates for a period of no less than one (1) year following the Closing; provided, however, that, for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable Law.
(b) As soon as reasonably practicable after the date of this Agreement (and, with respect to any New Business Employee, as soon as reasonably practicable after such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant to Section 5.6(aEmployees)), Buyer shall provide reasonable information to Business Employees regarding Buyer’s (or any of its applicable Affiliates’) employee benefit plans (to the extent such plans will be made available to Business Employees as contemplated by Section 5.6(a)) and employee orientation sessions with respect to the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies) (with such sessions to be held at the offices of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer). During the Pre-Closing Period, (i) Seller shall allow Buyer to meet with Business Employees (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer or any of its Affiliates intends to deliver to any of the Business Employees regarding his or her continued employment after the Closing at least 48 hours prior to the delivery of such communication to the Business Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreementherein, Seller after the Effective Time, nothing herein shall reasonably cooperate with Buyer 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 encourage and facilitate each retain any employee or group of employees of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery Company or any of such Offer Letter to such Business Employee and to its Subsidiaries. This Section 5.7(a) shall not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor Buyer shall, and each of Seller and Buyer shall cause their Affiliates not to, make any communication apply to any Business Employee Person covered by the Executive Agreement or engage in any other activity, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior to the Closing Datecollective bargaining agreement.
(cb) Buyer Parent shall, or shall cause its Affiliates to, use reasonable best efforts to recognize the Surviving Corporation and each Continuing Employee’s service with Seller, the Sold Companies, or any of their respective Affiliates to, honor all Company Benefit Plans (including all severance, change of control and similar plans and agreements) in accordance with their terms as in effect on the date hereof (subject to any modification thereof made in accordance with Section 5.1(d) of this Agreement, subject to any amendment or predecessors termination thereof that may be permitted by such Company Benefit Plans and except as provided herein; provided, that nothing herein shall prevent the amendment or termination of the Closing Date as service any specific plan, program policy, agreement or arrangement, or interfere with BuyerParent's, the Sold Companies Surviving Corporation's or any of their respective Affiliates, ' rights or obligations to make such changes as applicable, for are necessary to comply with applicable Law.
(c) For all purposes under any employee benefit plans or arrangement of Parent, the Surviving Corporation and 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 pension plan or other defined benefit plan) (the "New Plans"), Parent shall use commercially reasonable efforts to 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 eligibilitypredecessor or acquired entities or any other entities) for purposes of eligibility to participate in and vesting thereunder (but not benefit accrual), vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals under any defined benefit pension plan and any equity incentive plans) in Buyer’s or its Affiliates’ employee benefit plans, agreements, policies or other arrangements in which such Continuing Employees participate following (except to the Closing Date (the “Buyer Benefit Plans”) (unless extent such 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 same periodapplicable Affiliate do not receive past service credit). In addition, (iii) at the Effective Time, any waiting time limitation in any New Plan is waived to the extent such waiting time was satisfied under the 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 have been met and actively-at-work requirements of each New Plan be waived or are otherwise inapplicable with respect satisfied for such Employee and his or her covered dependents to Continuing Employees the extent waived or satisfied under each Company Benefit the analogous Old Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan as of the Closing Date, Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to waive any such pre-existing condition limitations under the corresponding Buyer Benefit Plans Effective Time and (iiiv) Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to recognize (or cause to be recognized) the dollar amount of all eligible expenses incurred by Continuing Employees each Employee and their respective spouses, same-sex domestic partners his or her covered dependents during in respect of the plan year in which the Closing occurs be taken into account for purposes of satisfying the deductibles all deductible, coinsurance and co-payment or maximum out-of-pocket limitations requirements applicable to such Employee and his or her covered dependents for such applicable plan year under the relevant Buyer Benefit Plans (as if such amounts had been paid in accordance with such New Plan. Notwithstanding anything in this Agreement to the extent such recognition would contrary, no Employee shall have been given under comparable Company Benefit Plans any right by virtue of this Agreement or Seller Benefit Plans prior the Transactions to the Closing)participate in any pension plan or other defined benefit plan maintained by Parent or in Parent's supplemental retirement plan.
(d) Buyer shallUpon the Closing, or Parent shall cause its respective Affiliates to, credit each Continuing Employee with the accrued Surviving Corporation to (i) assume the liabilities and unused vacation days and any personal and sickness days accrued in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates in effect as obligations of the ClosingCompany set forth in the collective bargaining agreements (as extended) that cover one or more of the Employees, and (ii) if necessary to effect such assumption, to accept an assignment of all or a portion of such liabilities and obligations, in each case to the extent required by such collective bargaining agreements.
(e) The parties hereto acknowledge and agree that all provisions contained Nothing in this Section 5.5(e) are included for the sole benefit of the parties to this Agreement, and that nothing in this Agreement5.7, whether express or implied, shall (i) create any third party beneficiary or other rights (x) in any other Person, including confer upon any current or former Business Employeesemployee of the Company, any participant in any Company Benefit Plan or any Seller Benefit Plan, or any dependent or beneficiary thereof, or any other service provider of Seller or the Sold Companies, or (y) to employment or continued employment with BuyerParent, the Sold Companies Surviving Corporation or any of their respective Affiliates, (ii) prevent any rights or restrict in remedies including any way right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Section 5.7. No provision of this Section 5.7 is intended to modify, amend or create any employee benefit plan of the right of Buyer Company, Parent, Surviving Corporation or any of its Affiliates to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service of any such service providers at any time, (iii) be treated as an amendment or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its their respective Affiliates, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time.
Appears in 1 contract
Samples: Merger Agreement
Employees; Benefit Plans. (a) No later than five During the period commencing at the Closing and ending on the date which is one (51) Business Days after year from the Closing (or if earlier, the date of this Agreement, Buyer shall deliver to each Business Employee as the employee’s termination of employment with the date of this Agreement (other than the Key Employees and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the ClosingCompany), Parent shall and no later than five (5) Business Days after shall cause the Company to provide each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee who remains employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) immediately after the date of this Agreement and prior to the date that is six Closing (6) Business Days prior to the Closing Date (subject to compliance with Section 5.1(b)(xvi) with respect to any such hiring, if applicable) (each, a “New Business Company Continuing Employee”), Buyer shall deliver to such Business Employee, in each case an offer of employment in the form attached hereto as Exhibit H (the “Offer Letter”), which Offer Letter shall, subject to the last sentence of this Section 5.6(a), provide for “at-will” employment with Buyer or an Affiliate thereof (including one of the Sold Companies) following the Closing and with: (i) an initial annual base salary or annual wage level, as applicable, that is not hourly wages which are no less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee hourly wages provided by the Company immediately prior to the Closing, ; (ii) total annual target cash compensation bonus opportunities, if any, which are no less than the target bonus opportunities (comprised of an initial annual base salary or annual wage level, as applicable, and, other than with respect to Business Employees participating in a sales incentive program as of excluding equity-based compensation) provided by the Company immediately prior to the Closing, a bonus opportunity, as applicable) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior to the Closing, ; and (iii) defined contribution pension retirement and welfare benefits (excluding nonqualified retirement arrangements, defined benefit pension benefits, deferred compensation arrangements and retiree welfare benefits or similar arrangements) that are no less favorable, in the aggregate, than those provided to similarly situated employees of Buyer and its Affiliates, and (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior to the Closing. Each Business Employee (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letter, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate than those provided by the annual base salary or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively Company immediately prior to similarly situated employees of Buyer and its Affiliates for a period of no less than one (1) year following the Closing; provided, however, that, for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable Law.
(b) As soon as reasonably practicable after the date of this Agreement (and, with respect to any New Business Employee, as soon as reasonably practicable after such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant to Section 5.6(a)), Buyer shall provide reasonable information to Business Employees regarding Buyer’s (or any of its applicable Affiliates’) employee benefit plans (Prior to the extent such plans Closing Date, unless Parent requests otherwise in writing, the Company will be made available take all action reasonably required to Business Employees as contemplated by Section 5.6(a)(1) and employee orientation sessions with respect to the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies) (with such sessions to be held at the offices of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer). During the Pre-Closing Period, (i) Seller shall allow Buyer to meet with Business Employees (either individually or in groups) during breaksterminate, outside of scheduled work hours or as otherwise agreed to by effective no later than the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer or any of its Affiliates intends to deliver to any of the Business Employees regarding his or her continued employment after the Closing at least 48 hours prior to the delivery of such communication to the Business Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall reasonably cooperate with Buyer to encourage and facilitate each of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery of such Offer Letter to such Business Employee and to not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company day prior to the Closing Date, any Benefit Plan that includes a “cash or deferral” feature that is intended to meet the requirements of Section 401(k) of the Code and neither Seller nor Buyer shallthat is sponsored by the Company (each, a “Company 401(k) Plan”) (ii) fully vest all participant accounts in the Company 401(k) Plan, and each (iii) amend the Company 401(k) Plan, to the extent necessary, to provide for the distribution of Seller all participant accounts, including loan notes, in an eligible rollover distribution from the Company 401(k) Plan, and Buyer shall cause their Affiliates not to, make (2) terminate any communication to any Business Employee or engage in any other activitynon-qualified deferred compensation plan of the Company, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering case effective no later than the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company day prior to the Closing DateClosing. At the Closing, the Company will provide to Parent (A) executed resolutions of the board of directors of the Company authorizing such terminations, and (B) an executed amendment to the Company 401(k) Plan sufficient to assure compliance with all applicable requirements of the Code and regulations thereunder so that the Tax-qualified status of the Company 401(k) Plan will be maintained at the time of termination.
(c) Buyer With respect to any employee benefit plan maintained by Parent or its subsidiaries (collectively, “Parent Benefit Plans”) in which any Company Continuing Employees will participate effective as of the Closing, Parent shall, or shall cause its Affiliates the Company to, use reasonable best efforts 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 in any Parent Benefit Plan (excluding any defined benefit pension, long-term incentive, equity or stock plans) in which such Company Continuing Employees may be eligible to recognize participate after the Closing Date; provided, however, such service shall not be recognized to the extent that (i) such recognition would result in a duplication of benefits, or (ii) such service was not recognized under the corresponding Benefit Plan.
(d) This Section 5.04 shall be binding upon and inure solely to the benefit of each Continuing Employee’s service of the Parties, and nothing in this Section 5.04, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.04. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The Parties acknowledge and agree that the terms set forth in this Section 5.04 shall not create any right in any Employee or any other Person to any continued employment with Sellerthe Company, the Sold Companies, Parent or any of their respective Affiliates or predecessors as of the Closing Date as service with Buyer, the Sold Companies or any of their respective Affiliates, as applicable, for all purposes (including eligibility, vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals under any defined benefit pension plan and any equity incentive plans) in Buyer’s or its Affiliates’ employee benefit plans, agreements, policies or other arrangements in which such Continuing Employees participate following the Closing Date (the “Buyer Benefit Plans”) (unless such credit would result in a duplication of benefits for the same period). In addition, (i) to the extent pre-existing condition limitations have been met or are otherwise inapplicable with respect to Continuing Employees under each Company Benefit Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan as of the Closing Date, Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to waive any such pre-existing condition limitations under the corresponding Buyer Benefit Plans and (ii) Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to recognize (or cause to be recognized) the dollar amount of all expenses incurred by Continuing Employees and their respective spouses, same-sex domestic partners or dependents during the plan year in which the Closing occurs for purposes of satisfying the deductibles and co-payment or out-of-pocket limitations for such plan year under the relevant Buyer Benefit Plans (to the extent such recognition would have been given under comparable Company Benefit Plans or Seller Benefit Plans prior to the Closing).
(d) Buyer shall, or shall cause its respective Affiliates to, credit each Continuing Employee with the accrued and unused vacation days and any personal and sickness days accrued in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates in effect as of the Closing.
(e) The parties hereto acknowledge and agree that all provisions contained in this Section 5.5(e) are included for the sole benefit of the parties to this Agreement, and that nothing in this Agreement, whether express or implied, shall (i) create any third party beneficiary or other rights (x) in any other Person, including any current or former Business Employees, any participant in any Company Benefit Plan or any Seller Benefit Plan, or any dependent or beneficiary thereof, or any other service provider of Seller or the Sold Companies, or (y) to employment or continued employment with Buyer, the Sold Companies or any of their respective Affiliates, (ii) prevent or restrict in any way the right of Buyer or any of its Affiliates to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service benefits of any such service providers at any time, (iii) be treated as an amendment nature or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its Affiliates, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any timekind whatsoever.
Appears in 1 contract
Employees; Benefit Plans. (a) No later than five (5) Business Days after the date of this Agreement, Buyer shall deliver to each Business Employee as The parties agree that all employees of the date of this Agreement (other than the Key Employees and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing), and no later than five (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and prior to the date that is six (6) Business Days prior to the Closing Date (subject to compliance with Section 5.1(b)(xvi) with respect to any such hiring, if applicable) (each, a “New Business Employee”), Buyer shall deliver to such Business Employee, in each case an offer of employment in the form Companies listed on Exhibit 5.10 attached hereto as Exhibit H (will be ------------- retained by the “Offer Letter”), which Offer Letter shall, subject to the last sentence of this Section 5.6(a), provide for “at-will” employment with Buyer or an Affiliate thereof (including one of the Sold Companies) Companies following the Closing (to the extent such employees accept such continued employment, the "Retained Employees"). Each of the Retained Employees shall have executed and delivered to Seller a waiver (ithe "Severance Waiver") an initial annual base salary of any amount of severance payment, including without limitation, any amounts payable pursuant to "Change in Control" provisions of any employment agreement or annual wage level, as applicable, arrangement applicable to such Retained Employee. The parties acknowledge and agree that is not less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee Companies' implementation of Seller's and/or Seller's parent company's Benefit Plan(s) shall be terminated immediately prior to the Closing; that Seller shall be responsible for any and all liabilities under Seller's and/or Seller's parent company's Benefit Plans attributable to the employees of the Companies, (iiincluding, but not limited to, the Retained Employees; and that Buyer, KLI, JSL or their successors or assignees will thereafter be responsible for liabilities under any Benefit Plan(s) total annual target cash compensation (comprised of an initial annual base salary sponsored after the Closing Date by Buyer, KLI, JSL or annual wage leveltheir successors or assignees. It is further agreed that, as applicable, and, other than with respect to Business Employees participating in a sales incentive program as of immediately prior to upon the Closing, a bonus opportunityeach Retained Employee shall be given the opportunity to participate in any Benefit Plan(s) sponsored by Buyer, as applicable) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior to the ClosingKLI, (iii) defined contribution pension and welfare benefits that are no less favorableJSL, in the aggregate, than those provided to similarly situated employees of Buyer and its Affiliatesor their successors or assignees, and (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior to the Closing. Each Business Employee (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letterto, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate than the annual base salary or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively to similarly situated employees of Buyer and its Affiliates for a period of no less than one (1) year following the Closing; provided, however, that, for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable Law.
(b) As soon as reasonably practicable after the date of this Agreement (and, with respect to any New Business Employee, as soon as reasonably practicable after such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant to Section 5.6(a)), Buyer shall provide reasonable information to Business Employees regarding Buyer’s (or any of its applicable Affiliates’) employee benefit plans (to the extent such plans will be made available to Business Employees as contemplated by Section 5.6(a)) and employee orientation sessions with respect to the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies) (with such sessions to be held at the offices of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer). During the Pre-Closing Period, (i) Seller shall allow Buyer to meet with Business Employees (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer or any of its Affiliates intends to deliver to any of the Business Employees regarding his or her continued employment after the Closing at least 48 hours prior option, receive a distribution (less any applicable early withdrawal penalties) of any funds accrued pursuant to the delivery of such communication to the Business Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall reasonably cooperate with Buyer to encourage and facilitate each of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery of such Offer Letter to such Business Employee and to not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor Buyer shall, and each Benefit Plan of Seller and Buyer shall cause their Affiliates not to, make any communication to any Business Employee or engage in any other activity, in each case, that is intended toand/or Seller's parent, or that would reasonably be expected torollover any such funds into individual retirement accounts and/or Benefit Plan accounts sponsored by Buyer, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer LetterKLI, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior to the Closing Date.
(c) Buyer shall, or shall cause its Affiliates to, use reasonable best efforts to recognize each Continuing Employee’s service with Seller, the Sold Companies, or JSL and/or any of their respective Affiliates successors or predecessors as of the Closing Date as service with Buyer, the Sold Companies or any of their respective Affiliates, as applicable, for all purposes (including eligibility, vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals under any defined benefit pension plan and any equity incentive plans) in Buyer’s or its Affiliates’ employee benefit plans, agreements, policies or other arrangements in which such Continuing Employees participate following the Closing Date (the “Buyer Benefit Plans”) (unless such credit would result in a duplication of benefits for the same period). In addition, (i) to the extent pre-existing condition limitations have been met or are otherwise inapplicable with respect to Continuing Employees under each Company Benefit Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan as of the Closing Date, Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to waive any such pre-existing condition limitations under the corresponding Buyer Benefit Plans and (ii) Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to recognize (or cause to be recognized) the dollar amount of all expenses incurred by Continuing Employees and their respective spouses, same-sex domestic partners or dependents during the plan year in which the Closing occurs for purposes of satisfying the deductibles and co-payment or out-of-pocket limitations for such plan year under the relevant Buyer Benefit Plans (to the extent such recognition would have been given under comparable Company Benefit Plans or Seller Benefit Plans prior to the Closing)assignees.
(d) Buyer shall, or shall cause its respective Affiliates to, credit each Continuing Employee with the accrued and unused vacation days and any personal and sickness days accrued in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates in effect as of the Closing.
(e) The parties hereto acknowledge and agree that all provisions contained in this Section 5.5(e) are included for the sole benefit of the parties to this Agreement, and that nothing in this Agreement, whether express or implied, shall (i) create any third party beneficiary or other rights (x) in any other Person, including any current or former Business Employees, any participant in any Company Benefit Plan or any Seller Benefit Plan, or any dependent or beneficiary thereof, or any other service provider of Seller or the Sold Companies, or (y) to employment or continued employment with Buyer, the Sold Companies or any of their respective Affiliates, (ii) prevent or restrict in any way the right of Buyer or any of its Affiliates to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service of any such service providers at any time, (iii) be treated as an amendment or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its Affiliates, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Security Group Inc/Tn)
Employees; Benefit Plans. (a) No later than five During the period commencing at the Closing and ending on the date which is twelve (512) Business Days after months from the Closing (or if earlier, the date of this Agreement, Buyer shall deliver to each Business Employee as the employee’s termination of employment with the date of this Agreement (other than the Key Employees and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing), and no later than five (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and prior to the date that is six (6) Business Days prior to the Closing Date (subject to compliance with Section 5.1(b)(xvi) with respect to any such hiring, if applicable) (each, a “New Business Employee”Company), Buyer shall deliver to such Business Employee, in each case an offer of employment in the form attached hereto as Exhibit H (the “Offer Letter”), which Offer Letter shall, subject to and shall cause the last sentence of this Section 5.6(a)Company to, provide for “at-will” employment with Buyer or an Affiliate thereof (including one of the Sold Companies) following each Employee who remains employed immediately after the Closing and (“Company Continuing Employee”) with: (i) an initial annual base salary or annual wage level, as applicable, that is not hourly wages which are no less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee hourly wages provided by the Company immediately prior to the Closing, ; (ii) total annual short-term target cash compensation bonus opportunities (comprised of an initial annual base salary or annual wage levelexcluding equity-based compensation), as applicableif any, and, other which are no less than with respect to Business Employees participating in a sales incentive program as of the short-term target bonus opportunities (excluding equity-based compensation) provided by the Company immediately prior to the Closing, a bonus opportunity, as applicable) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior to the Closing, ; (iii) defined contribution pension and welfare benefits (other than retiree welfare benefits) that are no less favorable, in the aggregate, than those provided to similarly situated employees of Buyer and its Affiliates, and (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior to the Closing. Each Business Employee (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letter, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate than those provided by the annual base salary Company immediately prior to the Closing; and (iv) severance benefits that are no less favorable than the practice, plan or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively to policy in effect for similarly situated employees of Buyer and its Affiliates for a period of no less than one (1) year following the Closing; provided, however, that, for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable LawBuyer.
(b) As soon as reasonably practicable after the date of this Agreement (andSeller, with respect to any New Business Employee, as soon as reasonably practicable after such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant to Section 5.6(a)), Buyer shall provide reasonable information to Business Employees regarding Buyer’s (or any of its applicable Affiliates’) employee benefit plans (effective prior to the extent such plans will be made available to Business Employees as contemplated by Section 5.6(a)) and employee orientation sessions with respect to Closing, shall cause the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companiesemployees set forth on Schedule 5.01(b) (with the “Parent Retained Employees”) to transfer from the Company to another Affiliate of Seller such sessions to be held at the offices of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer). During the Pre-Closing Period, that (i) Seller no such employee’s employment shall allow Buyer transfer to meet with Business Employees (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer or any of its Affiliates intends to deliver to (including the Company) as a result of the Closing and (ii) none of the Buyer or any of its Affiliates (including the Business Employees regarding his Company) shall have any liability under a Benefit Plan or her continued employment after otherwise in respect of any such employee that arises or occurs following such transfer. Notwithstanding the Closing at least 48 forgoing, Bxxxx agrees that each Parent Retained Employee shall, (x) for a period of 30 days following the Closing, continue to have access during regular business hours to such employee’s physical office of the Company as of the date prior to such employee’s transfer and (y) for a period of 60 days following the delivery of such communication Closing, continue to the Business Employee and shall consider in good faith any comments have access to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall reasonably cooperate with Buyer to encourage employee’s Company email (including forwarding) account and facilitate each of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery of such Offer Letter to such Business Employee and to not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor Buyer shall, and each of Seller and Buyer shall cause their Affiliates not to, make any communication to any Business Employee or engage in any other activityvoicemail, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered subject to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior each Parent Retained Employee’s adherence to the Closing DateBuyer’s policies regarding third-party access to Buyer’s facilities and systems, including any policies regarding trade secrets and confidential information.
(c) With respect to any employee benefit plan maintained by Buyer shall, or shall cause its Affiliates to, use reasonable best efforts to recognize each Continuing Employee’s service with Seller, the Sold Companies, or any of their respective Affiliates or predecessors as of the Closing Date as service with Buyer, the Sold Companies or any of their respective Affiliates, as applicable, for all purposes (including eligibility, vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals under any defined benefit pension plan and any equity incentive plans) in Buyer’s or its Affiliates’ employee benefit planssubsidiaries (collectively, agreements, policies or other arrangements in which such Continuing Employees participate following the Closing Date (the “Buyer Benefit Plans”) (unless such credit would result in a duplication of benefits for the same period). In addition, (i) to the extent pre-existing condition limitations have been met or are otherwise inapplicable with respect to which any Company Continuing Employees under each Company Benefit Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan will participate effective as of the Closing DateClosing, Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to waive any such pre-existing condition limitations under the corresponding Buyer Benefit Plans and (ii) Buyer shall, or shall cause its Affiliates Company to, use commercially reasonable efforts to recognize (or cause to be recognized) all service of the dollar amount of all expenses incurred by Company Continuing Employees with the Company or any of its subsidiaries, as the case may be as if such service were with Buyer, for vesting and their respective spouses, same-sex domestic partners or dependents during the plan year eligibility purposes (but excluding benefit accrual) in any Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Closing occurs for purposes of satisfying the deductibles and co-payment or out-of-pocket limitations for Date; provided, however, such plan year under the relevant Buyer Benefit Plans (service shall not be recognized to the extent that (i) such recognition would have been given result in a duplication of benefits or (ii) such service was not recognized under comparable Company the corresponding Benefit Plans or Seller Benefit Plans prior to the Closing)Plan.
(d) Buyer shall, shall use or shall cause its respective Affiliates tothe Company to use commercially reasonable efforts to (i) waive all waiting periods, credit pre-existing condition exclusions, actively-at-work and evidence of insurability requirements that would otherwise be applicable to a Continuing Company Employee or the Continuing Company Employee’s dependent; and (ii) provide each Continuing Company Employee and his or her eligible dependents with credit for any co-payments or coinsurance and deductibles paid prior to the accrued and unused vacation days and Closing under a Buyer Benefit Plan (to the same extent that such credit was given under the analogous Buyer Benefit Plan prior to the Closing Date) in satisfying any personal and sickness days accrued applicable deductible, co-payment, coinsurance or maximum out-of-pocket requirements under any benefit plan in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates in effect as of the Closingwhich such Continuing Company Employee participates.
(e) The parties hereto acknowledge This Section 5.01 shall be binding upon and agree that all provisions contained in this Section 5.5(e) are included for inure solely to the sole benefit of each of the parties to this Agreement, and that nothing in this AgreementSection 5.01, whether express or implied, shall (i) confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.01. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement, or arrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 5.01 shall not create any third party beneficiary or other rights (x) right in any other Person, including any current or former Business Employees, any participant in any Company Benefit Plan or any Seller Benefit Plan, or any dependent or beneficiary thereof, Employee or any other service provider of Seller or the Sold Companies, or (y) Person to employment or any continued employment with Buyerthe Company, the Sold Companies Buyer or any of their respective Affiliates, (ii) prevent Affiliates or restrict in any way the right of Buyer or any of its Affiliates to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service benefits of any such service providers at any time, (iii) be treated as an amendment nature or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its Affiliates, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any timekind whatsoever.
Appears in 1 contract
Samples: Stock Purchase Agreement (Qualigen Therapeutics, Inc.)
Employees; Benefit Plans. (a) No later than five (5) Business Days after the date of this Agreement, Buyer shall deliver to each Business Employee as of the date of this Agreement (other than the Key Employees and other than Business Employees employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing), and no later than five (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and prior to the date that is six (6) Business Days prior Prior to the Closing Date (subject to compliance with Section 5.1(b)(xviDate, the Seller or its applicable Affiliate(s) with respect to shall have terminated the employment of any such hiring, if applicable) (each, a “New Business Employee”), Buyer shall deliver to such Business Employee, in each case Company Employee who has received an offer of employment in with the form attached hereto as Exhibit H Buyer or one of its Affiliates (collectively, the “Offer LetterTerminated Employees”). For the avoidance of doubt, which Offer Letter shallthe Seller shall retain all liabilities relating to, subject or arising out of, such termination of employment, including any severance or other amounts owed to any Terminated Employee and any WARN Act liability, if applicable, and compliance with the last sentence requirements of this Section 5.6(a)COBRA, provide for “at-will” including the provision of continuing coverage with respect to such Terminated Employees. Effective as of the Closing, the Seller hereby waives and releases, and shall cause each of its applicable Affiliates to waive and release, each of the Company Employees who has accepted an offer of employment with the Buyer or an Affiliate thereof (including one collectively, the “Continuing Employees”) from (A) any and all contractual, common law or other restrictions enforceable by the Seller or any of its Affiliates against such employees on the employment, activities or other conduct of such employees, other than in respect of any of the Sold Companiesagreements set forth on Section 8.11 of the Disclosure Letter and (B) following any requirement of such employees to provide the Seller or any of its Affiliates with notice prior to resignation of employment. During the period commencing at the Closing and ending on the date which is 12 months from the Closing (i) an initial annual or if earlier, the date of the employee’s termination of employment with the Buyer or its applicable Affiliate), the Buyer shall provide, or cause to be provided, to each Continuing Employee base salary or annual wage level, as applicable, that is not hourly wages which are no less than the annual base salary or wage level, as applicable, as in effect for each hourly wages provided to such Business Continuing Employee immediately prior to the Closing, .
(iib) total annual target cash compensation (comprised of an initial annual base salary or annual wage level, as applicable, and, other than with respect to Business In the event that any Continuing Employees participating in a sales incentive program will participate effective as of immediately following the Closing in a benefit plan sponsored by Buyer or its Affiliates (a “Buyer Benefit Plan”), the Buyer shall, or shall cause the Company to, recognize all service of each Continuing Employee with the Company as if such service were with the Buyer for vesting and eligibility purposes (but not for accrual purposes under any defined benefit pension plan) in such Buyer Benefit Plan in which such Continuing Employees may be eligible to participate after the Closing to the same extent that such service was recognized under the corresponding Benefit Plan prior to the Closing; provided, however, such service shall not be recognized to the extent that such recognition would result in a bonus opportunityduplication of benefits.
(c) Effective as of the Closing, as applicablethe Company shall cease to be a participating employer in any Seller Benefit Plans, and the Continuing Employees shall cease active participation in the Seller Benefit Plans in accordance with the terms of such Seller Benefit Plans, and the Seller shall be responsible for all claims under the Seller Benefit Plans arising on, prior to and after the Closing Date.
(d) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior Prior to the Closing, the Seller has paid or has caused its applicable Affiliates to pay, to all Continuing Employees: (i) any accrued but unused vacation and paid time off as of the Closing Date; (ii) all accrued but unpaid bonuses for the current fiscal year; and (iii) any earned but unpaid amounts under the Calumet GP, L.L.C. Amended and Restated Long-Term Incentive Plan (the “LTIP”). The Seller shall be solely liable for any amounts to which any current or former Continuing Employee becomes entitled under any Benefit Plan (including the LTIP), agreement, arrangement or program which exists or arises, or may be deemed to exist or arise, under any applicable Law or otherwise or as a result of, or in connection with, the execution of this Agreement or the consummation of the Contemplated Transactions.
(e) Any liability for the Buyer’s or the Company’s post-Closing decisions to terminate any Company Employee, including any liability under the WARN Act, shall be solely the Buyer’s responsibility. Prior to the Closing Date, the Seller has provided to the Buyer a list of all employees or former employees of the Seller who have suffered an “employment loss” (as defined contribution pension and welfare benefits that are no less favorable, in the aggregateWARN Act) during the ninety (90) calendar day period on or preceding the Closing Date at each “single site of employment” (as defined in the WARN Act) and the date of such employment loss and applicable site of employment for each such Person.
(f) Nothing herein, than those provided express or implied, shall confer upon any confer upon any other Persons (including any current or former employee of the Seller, the Buyer or any of their respective Affiliates) any rights or remedies hereunder, including any right to similarly situated employees employment or continued employment for any specified period or continued participation in any Benefit Plan, of any nature or kind whatsoever under or by reason of this Agreement. Nothing herein restricts or precludes the right of the Buyer to terminate the employment of any Continuing Employee. The Buyer and the Seller agree that the provisions contained herein are not intended to be for the benefit of, or otherwise be enforceable by, any third party, including any current or former employee of the Seller or any of its Affiliates, and (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior . Notwithstanding anything to the Closing. Each Business Employee contrary in this Agreement, no provision of this Agreement is intended to, or does, constitute the establishment of, or an amendment to, any Benefit Plan of the Seller, the Company, the Buyer or any of their respective Affiliates.
(g) The Seller shall provide the Buyer with all information reasonably requested by the Buyer with respect to the compensation and benefits of the Continuing Employees (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of any Key Employee Offer Letter, completed Forms I-9 and attachments with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintainas applicable). After the Closing and upon the reasonable request of the Buyer, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate than the annual base salary or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively to similarly situated employees of Buyer and its Affiliates for a period of no less than one (1) year following the Closing; provided, however, that, for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable Law.
(b) As soon as reasonably practicable after the date of this Agreement (and, with respect to any New Business Employee, as soon as reasonably practicable after such New Business Employee’s acceptance of an Offer Letter delivered by Buyer pursuant to Section 5.6(a)), Buyer Seller shall provide reasonable information to Business Employees regarding Buyer’s (or any the Buyer with copies of its applicable Affiliates’) employee benefit plans (to the extent such plans will be made available to Business Employees as contemplated by Section 5.6(a)) and employee orientation sessions with respect to the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies) (with such sessions to be held at the offices of the Sold Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer). During the Pre-Closing Period, (i) Seller shall allow Buyer to meet with Business Employees (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer or any of its Affiliates intends to deliver to any of the Business Employees regarding his or her continued employment after the Closing at least 48 hours prior to the delivery of such communication to the Business Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall reasonably cooperate with Buyer to encourage and facilitate each of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery of such Offer Letter to such Business Employee and to not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor Buyer shall, and each of Seller and Buyer shall cause their Affiliates not to, make any communication to any Business Employee or engage in any other activity, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior to the Closing Date.
(c) Buyer shall, or shall cause its Affiliates to, use reasonable best efforts to recognize each Continuing Employee’s service employee background checks and internal performance reviews promptly after the Buyer provides the Seller with Seller, evidence reasonably satisfactory to the Sold Companies, or any of their respective Affiliates or predecessors as of the Closing Date as service with Buyer, the Sold Companies or any of their respective Affiliates, as applicable, for all purposes (including eligibility, vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals under any defined benefit pension plan and any equity incentive plans) in Buyer’s or its Affiliates’ employee benefit plans, agreements, policies or other arrangements in which Seller that such Continuing Employees participate following the Closing Date (the “Buyer Benefit Plans”) (unless such credit would result in a duplication of benefits Employee has provided written authorization for the same period). In addition, (i) Seller to release such information to the extent pre-existing condition limitations have been met or are otherwise inapplicable with respect to Continuing Employees under each Company Benefit Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan as of the Closing Date, Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to waive any such pre-existing condition limitations under the corresponding Buyer Benefit Plans and (ii) Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to recognize (or cause to be recognized) the dollar amount of all expenses incurred by Continuing Employees and their respective spouses, same-sex domestic partners or dependents during the plan year in which the Closing occurs for purposes of satisfying the deductibles and co-payment or out-of-pocket limitations for such plan year under the relevant Buyer Benefit Plans (to the extent such recognition would have been given under comparable Company Benefit Plans or Seller Benefit Plans prior to the Closing)Buyer.
(d) Buyer shall, or shall cause its respective Affiliates to, credit each Continuing Employee with the accrued and unused vacation days and any personal and sickness days accrued in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates in effect as of the Closing.
(e) The parties hereto acknowledge and agree that all provisions contained in this Section 5.5(e) are included for the sole benefit of the parties to this Agreement, and that nothing in this Agreement, whether express or implied, shall (i) create any third party beneficiary or other rights (x) in any other Person, including any current or former Business Employees, any participant in any Company Benefit Plan or any Seller Benefit Plan, or any dependent or beneficiary thereof, or any other service provider of Seller or the Sold Companies, or (y) to employment or continued employment with Buyer, the Sold Companies or any of their respective Affiliates, (ii) prevent or restrict in any way the right of Buyer or any of its Affiliates to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service of any such service providers at any time, (iii) be treated as an amendment or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its Affiliates, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Employees; Benefit Plans. (aa. Schedule 7.18(a) No later than five (5) Business Days after contains a correct and complete list, as of the date of this Agreement, Buyer shall deliver to of the employees of each Business Employee as of the Acquired Companies stating the name, the commencement of employment, the date of birth, the job title, and details of total gross annual remuneration (including fixed salary, bonus, commissions etc.), notice period, parental leave, fixed term, special protection from dismissal on account of protection under the German Social Security Act IX (SGB IX) and Maternity Protection Act (MuSchG) or similar, position, commencement of employment or service (including times of services rendered for other employers which are nevertheless recognized under the current employment), the existence of (old-age) part-time agreements, employee loans received, entitlement to jubilee payments, and additional agreements in respect of fringe benefits, of royalties and similar arrangements) of each of the Acquired Companies: (i) service contracts with members of the board of directors (Geschäftsführer); and (ii) employment contracts, unless those contracts referred to under (i) and (ii) of this Section 7.18(a) have been terminated (with no further obligations on behalf of the Acquired Companies) thereto. Except as set forth on Schedule 7.18(a), there are no accrued bonuses to employees or consultants that have not been paid prior to the Closing.
b. All service and employment Contracts terminated by the Company during the last 6 months before signature of this Agreement or which are to terminate in the future by mutual agreement are listed in Schedule 7.18(b). To the Company’s Knowledge, no employee or officer of any of the Acquired Companies currently intends to terminate his or her employment with any of the Acquired Companies.
c. Except as disclosed in Schedule 7.18(c), there are no freelancers or employees supplied by other Persons (e.g. temporary workers) active for any of the Acquired Companies. There are no freelancers and/or consultants and/or employees supplied by other persons who could claim to be or would be considered by the competent Governmental Body as employees of any of the Acquired Companies.
d. All wage and salary payments to employees of any of the Acquired Companies are currently effected on the basis of their respective current employment Contract, and any applicable general employment conditions. There are no collective bargaining agreements of any kind (including Tarifverträge) applicable to any of the Acquired Companies (including application by way of reference made in individual employment agreements). No payments are made based on continuous business practice (betriebliche Übung), general commitments (Gesamtzusagen) and any other customary internal practice. No other payments are made in addition to or above general pay scales.
e. Each of the Acquired Companies has paid all salaries, vacation payments, bonuses and social insurance contributions as well as any other payments due and payable by the Closing Date according to the individual employment agreements and/or the agreements listed in Schedule 7.18(e).
f. Unless otherwise contemplated by this Agreement there are no obligations of the Acquired Companies to increase the remuneration of employees or to change the employees’ employment terms in any other material way and the Acquired Companies are under no obligation to provide insurance or severance payments or other indemnities to employees or to promote an employee unless explicitly stated otherwise in Schedule 7.18(f).
g. There are no shop agreements (Betriebsvereinbarungen), reconciliations of interest (Interessenausgleiche), social plans (Sozialpläne) or any other collective agreements of any kinds applicable in the Acquired Companies directly or indirectly (through reference in the individual employment agreements).
h. The Acquired Companies have never experienced any strike, collective labour interruption, or other collective labour controversy. The Acquired Companies have no works-council.
i. The Acquired Companies have been and are materially in compliance with all regulations that exist by virtue of statute, collective bargaining agreement or shop agreement to deal with relations with its employees. The Acquired Companies are not engaged in any dispute with trade unions, works councils or other employees’ organizations, Governmental Body and no such disputes have been threatened in writing.
j. Except as set forth in Schedule 7.18(j), neither the execution, delivery or performance of this Agreement or any agreement entered into pursuant to this Agreement, nor the consummation of any of the transactions contemplated hereunder and thereunder, will or may (either alone or upon the occurrence of any additional or subsequent events) result in any payment (whether of severance pay or otherwise and whether or not under any Plan), acceleration, forgiveness of Indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee or managing director of any of the Acquired Companies or provide such individuals with a right to terminate their employment agreements.
k. Schedule 7.18(k)(1) contains a correct and complete list of all pension arrangements and schemes granted by the Acquired Companies, other than state or mandatory social security arrangements, under which any current or former employees, managing directors, advisory board members, officers, freelancers or consultants of the Acquired Companies are entitled to retirement, death, disability, or life insurance benefits, including but not limited to any direct pension promises (“Direktzusagen”), deferred benefit and/or compensation schemes (Entgeltumwandlung) (the “Pension Arrangements”). There are no unfunded Pension Arrangement and/or pension obligations or pension increases other than those disclosed in Schedule 7.18(k)(2).
l. The Pension Arrangements comply and have been managed in all material respects in accordance with applicable Legal Requirements. In particular, the pensions have at any time been increased in accordance with Section 16 of the German Pension Act (Gesetz zur Verbesserung der Betrieblichen Altersversorgung).
m. Where a Pension Arrangement is funded externally, the Acquired Companies have paid all contributions in accordance with the governing documentation of the Pension Arrangement. Where a Pension Arrangement is not funded, the Acquired Companies have properly provided for all obligations under or in connection with the Pension Arrangement pertaining to periods prior to Closing in the Interim Management Accounts as required by § 6a German Income Tax Act (EStG) (and all other applicable Legal Requirements). Such provisions (i) are based on the most recent biometric data (Xxxxxxx-Richttafeln 2005 G); and (ii) where any actuarial assumptions are made they are reasonable, prudent and conservative.
n. There are no pending disputes in front of a court or arbitral tribunal about the benefits payable under the Pension Arrangements in respect of current or former employees, managing directors, advisory board members, officers, freelancers or consultants, and no material claim by any current or former employees, managing directors, supervisory or executive board members, officers, freelancers or consultants has been made or threatened in writing with respect to the Pension Arrangements since 31 December 2008.
o. Except as set out on Schedule 7.18(o), there are no obligations under early retirement schemes (Vorruhestandsverträge) and/or old-age part-time schemes (Altersteilzeitverträge) and there are no outstanding obligations under Section 147a of the German Social Security Act (SGB III) with regard to the German social security agencies or other equivalent applicable Legal Requirements. The Acquired Companies have taken all measures necessary or legally required to ensure protection of the early retirement schemes and the old age part time schemes against the case of insolvency.
p. Schedule 7.18(p) identifies each employment, salary, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance pay, termination pay, hospitalization, medical, insurance, supplemental unemployment benefits, profit-sharing, retirement, welfare, fringe benefit, jubilee payment or other employee benefits plan, program or agreement, whether written or unwritten and whether funded or unfunded (individually referred to as a “Plan” and collectively referred to as the “Plans”) which is or has been sponsored, maintained, contributed to or required to be contributed to by any of the Acquired Companies for the benefit of any current or former employee, consultant, director or managing director of any of the Acquired Companies (or the spouse, child or dependent of any such current or former employee, consultant, director or managing director) or with respect to which any of the Acquired Companies may have any Liability. None of the Acquired Companies has any plan or commitment to create any additional Plan, or to modify or change any existing Plan (other than the Key Employees and other than Business Employees employed outside to comply with applicable Legal Requirements).
q. There has been no amendment or written interpretation or announcement by any of the United States whose employment will transfer Acquired Companies which would materially increase the expense of maintaining any Plan above the level of expense incurred with respect to Buyer by operation of Law upon that Plan for the Closing)most recent fiscal year included in the Audited Financial Statements. No Plan provides health benefits that are not fully insured through an insurance contract.
r. No Plan provides death, and no later than five medical or health benefits (5) Business Days after each date Seller notifies Buyer in writing of the hiring of any new Business Employee (other than any Business Employee employed outside of the United States whose employment will transfer to Buyer by operation of Law upon the Closing) after the date of this Agreement and prior to the date that is six (6) Business Days prior to the Closing Date (subject to compliance with Section 5.1(b)(xviwhether or not insured) with respect to any such hiring, if applicable) (each, a “New Business Employee”), Buyer shall deliver to such Business Employee, in each case an offer current or former employee of employment in the form attached hereto as Exhibit H (the “Offer Letter”), which Offer Letter shall, subject to the last sentence of this Section 5.6(a), provide for “at-will” employment with Buyer or an Affiliate thereof (including one any of the Sold Companies) following the Closing and Acquired Companies after any such employee’s termination of service (other than: (i) an initial annual base salary or annual wage level, as applicable, that is not less than the annual base salary or wage level, as applicable, as in effect for each such Business Employee immediately prior to the Closing, benefit coverage mandated by applicable Legal Requirements; (ii) total annual target cash deferred compensation (comprised of an initial annual base salary or annual wage level, benefits accrued as applicable, and, other than with respect to Business Employees participating in a sales incentive program as of immediately prior to liabilities on the Closing, a bonus opportunity, as applicable) that is not less than the total annual target cash compensation in effect for each such Business Employee immediately prior to the Closing, Interim Management Accounts; and (iii) defined contribution pension benefits the full cost of which are borne by current or former employees of any of the Acquired Companies (or their beneficiaries)).
s. Each of the Plans has been operated and welfare benefits that administered in all material respects in accordance with applicable Legal Requirements. All contributions required to be made by any of the Acquired Companies to any Plan: (i) have been timely made or accrued for in the Interim Management Accounts in accordance with § 6a German Income Tax Act (EStG); (ii) are based on the most recent biometric data (Xxxxxxx-Richttafeln 2005 G); and (iii) where any actuarial assumptions are made in calculating the level of funding they are reasonable, prudent and conservative. There are no less favorableaudits, in the aggregateinquiries or proceedings pending (rechtshängig) or, than those provided to similarly situated employees of Buyer and its Affiliates, and (iv) a place of employment within twenty-five (25) miles of such Business Employee’s place of employment as of immediately prior to the Closing. Each Business Employee (including each Key Employee) who continues in employment with Buyer or an Affiliate thereof (including one of the Sold Companies) after the Closing shall hereinafter be referred to as a “Continuing Employee”. Subject to the terms of Company’s Knowledge, threatened by any Key Employee Offer Letter, with respect to all Continuing Employees, Buyer hereby agrees to maintain, or cause such applicable Affiliate to maintain, the annual base salary or annual wage level, as applicable, annual target bonus or commission opportunity, as applicable, and defined contribution pension and welfare benefits that are collectively no less favorable in the aggregate than the annual base salary or annual wage level, annual target bonus or commission opportunity, defined pension and welfare benefits provided collectively to similarly situated employees of Buyer and its Affiliates for a period of no less than one (1) year following the Closing; provided, however, that, for Business Employees employed outside of the United States, the terms and conditions of employment shall be as required by applicable Law.
(b) As soon as reasonably practicable after the date of this Agreement (and, Governmental Body with respect to any New Business Employee, as soon as reasonably practicable after such New Business Employee’s acceptance Plan.
t. The aggregate amount of an Offer Letter delivered by Buyer pursuant to Section 5.6(a)), Buyer shall provide reasonable information to Business Employees regarding Buyer’s all credit balances of working time accounts (or any Arbeitszeitkonten) of its applicable Affiliates’) employee benefit plans (to the extent such plans will be made available to Business Employees as contemplated by Section 5.6(a)) and employee orientation sessions with respect to the continued employment all employees of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies) (with such sessions to be held at the offices of the Sold Acquired Companies where such Business Employees are currently located during scheduled work hours at times reasonably agreed in writing by Seller and Buyer). During the Pre-Closing Period, (i) Seller shall allow Buyer to meet with Business Employees (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Seller and Buyer, in any case, as reasonably necessary in connection with the continued employment of the Business Employees after the Closing with Buyer or its Affiliates (including the Sold Companies); provided, that Seller shall have the right to have a representative present during any such contact between Buyer and any Business Employees, and (ii) Buyer shall provide to Seller each material written communication (including all forms of Offer Letters), Buyer or any of its Affiliates intends to deliver to any of the Business Employees regarding his or her continued employment after the Closing at least 48 hours prior to the delivery of such communication to the Business Employee and shall consider in good faith any comments to such communication Seller may provide to Buyer prior to the expiration of such 48-hour period before delivering such communication to the Business Employees. Notwithstanding anything to the contrary set forth in this Agreement, Seller shall reasonably cooperate with Buyer to encourage and facilitate each of the Business Employees entry into an Offer Letter as soon as reasonably practicable after the delivery of such Offer Letter to such Business Employee and to not revoke or repudiate such Offer Letter or otherwise cease to be employed by a Sold Company prior to the Closing Date, and neither Seller nor Buyer shall, and each of Seller and Buyer shall cause their Affiliates not to, make any communication to any Business Employee or engage in any other activity, in each case, that is intended to, or that would reasonably be expected to, discourage any Business Employee from promptly executing and delivering the Offer Letter delivered to such Business Employee pursuant to Section 5.6(a) or encourage any Business Employee or Key Employee to revoke or repudiate the Offer Letter or Key Employee Offer Letter, as applicable, of such Business Employee or Key Employee or otherwise cease to be employed by a Sold Company prior to the Closing Date.
(c) Buyer shall, or shall cause its Affiliates to, use reasonable best efforts to recognize each Continuing Employee’s service with Seller, the Sold Companies, or any of their respective Affiliates or predecessors as of the Closing Date as service with Buyer, the Sold Companies or any of their respective Affiliates, as applicable, for all purposes does not exceed EUR 0 (including eligibility, vesting, eligibility waiting periods and benefit accruals but excluding benefit accruals under any defined benefit pension plan and any equity incentive plans) in Buyer’s or its Affiliates’ employee benefit plans, agreements, policies or other arrangements in which such Continuing Employees participate following the Closing Date (the “Buyer Benefit Plans”) (unless Euro zero). All such credit would result in a duplication balances of benefits for working time accounts (Arbeitszeitkonten) are fully funded or properly provided for.
u. The amount of all vacation claims of all employees of the same period). In addition, (i) to the extent pre-existing condition limitations have been met or are otherwise inapplicable with respect to Continuing Employees under each Company Benefit Plan or Seller Benefit Plan, as applicable, that is an employee welfare benefit plan Acquired Companies as of the Closing Date, Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to waive any such pre-existing condition limitations under the corresponding Buyer Benefit Plans and (ii) Buyer shall, or shall cause its Affiliates to, use commercially reasonable efforts to recognize (or cause to be recognized) the dollar amount of all expenses incurred by Continuing Employees and their respective spouses, same-sex domestic partners or dependents during the plan year in which the Closing occurs for purposes of satisfying the deductibles and co-payment or out-of-pocket limitations for such plan year under the relevant Buyer Benefit Plans (to the extent such recognition would have been given under comparable Company Benefit Plans or Seller Benefit Plans prior to the Closing)Date does not exceed EUR 10,000.
(d) Buyer shall, or shall cause its respective Affiliates to, credit each Continuing Employee with the accrued and unused vacation days and any personal and sickness days accrued in accordance with the vacation and personnel policies of Seller, the Sold Companies or any of their respective Affiliates in effect as of the Closing.
(e) The parties hereto acknowledge and agree that all provisions contained in this Section 5.5(e) are included for the sole benefit of the parties to this Agreement, and that nothing in this Agreement, whether express or implied, shall (i) create any third party beneficiary or other rights (x) in any other Person, including any current or former Business Employees, any participant in any Company Benefit Plan or any Seller Benefit Plan, or any dependent or beneficiary thereof, or any other service provider of Seller or the Sold Companies, or (y) to employment or continued employment with Buyer, the Sold Companies or any of their respective Affiliates, (ii) prevent or restrict in any way the right of Buyer or any of its Affiliates to terminate, reassign, promote or demote any employee, consultant, director, manager or other service provider of the Sold Companies (or to cause any of the foregoing actions) at any time, or to change (or cause the change of) the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment or service of any such service providers at any time, (iii) be treated as an amendment or other modification of any Company Benefit Plan, any Seller Benefit Plan, any Buyer Benefit Plan or any other employee benefit plan, program or arrangement maintained by Buyer or any of its Affiliates, or (iv) obligate Buyer or its Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent Buyer or its Affiliates from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time.
Appears in 1 contract
Samples: Share Purchase Agreement (Yelp Inc)
