Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”), Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing. (b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period. (c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan year. (d) The provisions of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.
Appears in 2 contracts
Samples: Merger Agreement (Moneygram International Inc), Merger Agreement (Moneygram International Inc)
Employees; Employee Benefit Plans. (a) During the 12-month period On or as soon as practicable following the Effective Time (the “Protection Period”)Time, Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, the “Continuing Covered Employees”)) shall become eligible to participate in the employee benefit plans sponsored or maintained by Acquiror or People’s United Bank, while such Continuing Employees remain employed by the Company or a Subsidiary, as applicable (i) base salary or wages excluding equity-based plans and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits plans) (the “Acquiror Plans”) in which similarly situated employees of Acquiror or supplemental executive retirement plan benefits) People’s United Bank, as applicable, participate, to the same extent as similarly situated employees of Acquiror or People’s United Bank, as applicable, so participate (it being understood that are substantially comparableinclusion of Company Employees in such employee benefit plans may occur at different times with respect to different plans). Until such time, such Company Employees shall continue to participate in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
Plans (b) During the Protection Period, Parent shall or shall cause the Surviving excluding equity-based Plans and any Company to assume and honor Common Stock fund feature of the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between 401(k) Plan) in which each such Company Employee participated before the Company or a Subsidiary of the Company, Effective Time on the one hand, and a Continuing Employee, on the other hand, same terms as in effect immediately prior to the Effective Time); provided, including but not limited however, that (i) nothing contained herein shall require Acquiror or any of its Subsidiaries to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan make any grants to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes Employee under any equity-based plans, it being understood that any such grants are completely discretionary and (ii) nothing contained herein shall require a Company Employee’s participation in Acquiror’s or incentive compensation Plan)any of its Subsidiaries’ defined benefit pension plan.
(b) with With respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if anyAcquiror Plan, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or Acquiror Plan, including any post-retirement welfare benefit planplan of Acquiror), service by a Covered Employee with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent recognized to the same extent such service was recognized by immediately prior to the Company Effective Time under a comparable PlanPlan in which such Covered Employee was a participant immediately before the Effective Time, or if there is no such comparable employee benefit plan, to the same extent such service was recognized under the Company 401(k) Plan immediately prior to the Effective Time to the extent applicable; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for For purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Acquiror Plan, service by a Covered Employee with the Company or any Subsidiary shall be treated as service with the Acquiror or People’s United Bank, as applicable, to the same extent as would apply had such service been rendered to Acquiror or People’s United Bank; provided, however, that such service shall not be recognized to the extent that such recognition would result in duplication of benefits. Each Parent Acquiror Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Company Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary benefit plan during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Acquiror Plan during the applicable plan year.
(c) The Company may grant retention bonuses to such Company Employees and in such amounts, as may be determined by the Company in its discretion (up to an aggregate maximum amount), and the Company or its Subsidiary may pay such retention bonuses, in each such case as set forth in Section 7.6(c) of the Company Disclosure Letter.
(d) During the one-year period commencing as of the Effective Date, Acquiror and its Subsidiaries shall honor, with respect to Company Employees employed as of the Effective Time, the Company Change in Control Severance Pay Plan (the “Company Severance Pay Plan”) as in effect as of the date of this Agreement and disclosed in Section 4.11(a) of the Company Disclosure Letter in connection with the termination of employment of any Company Employee (excluding any employee who is party to an employment agreement, change-in-control agreement or any other agreement which provides for severance payments), in such amounts, at such times and upon such conditions as set forth in the Company Severance Pay Plan.
(e) The Company and its Subsidiaries shall continue to accrue annual cash bonuses for Company Employees in the ordinary course consistent with both past practices and subject to the provisions set forth in Section 7.6(e) of the Company Disclosure Letter as they pertain to the 2011 Annual Bonus Program (the “2011 Annual Bonuses”). Not less than three (3) Business Days prior to the Closing Date, the Company shall determine, in its reasonable discretion, consistent with its ordinary course of business past practices, those Company Employees who shall receive 2011 Annual Bonuses for the period January 1, 2011 through the Closing Date and, for each such employee, the amount of the 2011 Annual Bonus for such period; provided, however, that the aggregate amount of all 2011 Annual Bonuses shall not exceed the amount accrued through the Closing Date on the financial statements of the Company in accordance with the immediately preceding sentence, subject to the aggregate maximum amount set forth in Section 7.6(e) of the Company Disclosure Letter. At the Closing, or as soon as practicable thereafter but in any event not later than the Effective Time, the Company or its Subsidiaries shall pay the 2011 Annual Bonus amounts to such Company Employees and in the amounts as determined by the Company in accordance with and subject to the foregoing provisions (inclusive of the applicable provisions of this Section 5.6 7.6(e) of the Company Disclosure Letter).
(f) Acquiror shall honor, in accordance with their terms, all compensation, employment, severance, change-in-control, and deferred compensation obligations of the Company and its Subsidiaries as set forth on Section 4.14(c) of the Company Disclosure Letter. Without limiting the scope of the immediately preceding sentence, Acquiror agrees that those Company Employees with employment agreements to which the Company is a party that are solely set forth on Section 7.6(f) of the Company Disclosure Letter shall terminate employment immediately following the Effective Time and be entitled to receive such severance payments as are determined in accordance with a settlement agreement the terms of which are set forth on Section 7.6(f) of the Company Disclosure Letter.
(g) Subject to the occurrence of the Effective Time, the Company Employee Stock Ownership Plan shall be terminated immediately prior to and effective as of the Effective Time (all shares held by the Company Employee Stock Ownership Plan shall be converted into the right to receive the Merger Consideration), a portion of the unallocated shares held by the Company Employee Stock Ownership Plan will be sold and the proceeds of such sale applied to the repayment of all outstanding Company Employee Stock Ownership Plan indebtedness, and the balance of the unallocated shares and any other assets remaining unallocated shall be allocated and distributed to participants in the Company Employee Stock Ownership Plan (subject to the receipt of a favorable determination letter from the Internal Revenue Service), as provided for in the Company Employee Stock Ownership Plan, unless otherwise required by applicable law (it being understood that such Plan shall not be terminated effective at the Effective Time if such Plan is not compliant with applicable Laws). Prior to the Effective Time, Company, and following the Effective Time, Acquiror shall use their respective commercially reasonable best efforts in good faith to obtain the favorable determination letter referenced above (including, but not limited to, making such changes to the Company Employee Stock Ownership Plan and the proposed allocations as may be requested by the Internal Revenue Service as a condition to its issuance of a favorable determination letter). Company and following the Effective Time, Acquiror, will adopt such amendments to the Company Employee Stock Ownership Plan as may be reasonably required by the Internal Revenue Service as a condition to granting such favorable determination letter on termination.
(h) The Company and Acquiror acknowledge and agree that all provisions contained herein with respect to employees, officers, directors, consultants and independent contractors are included for the sole benefit of the parties hereto Company and nothing Acquiror and shall not create any right (i) in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remediesother person, including Plans or any right beneficiary thereof or (ii) to employment or continued employment for with Acquiror or any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Planits affiliates.
Appears in 2 contracts
Samples: Merger Agreement (People's United Financial, Inc.), Merger Agreement (Danvers Bancorp, Inc.)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”), Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no Not less favorable, in each instance, to those provided to the Continuing Employees immediately than 60 days prior to the Closing and (ii) Closing, Xxxxxxxx shall furnish Tribune with a schedule identifying each employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, listed on Schedule 2.18 to those provided whom Xxxxxxxx intends to the Continuing Employees immediately prior to the extend employment as of Closing.
(b) During Notwithstanding the Protection Periodforegoing provisions of this Section 5.2, Parent nothing contained in this Agreement shall be construed to create any obligation on the part of Tribune to retain or shall cause on the Surviving Company part of Xxxxxxxx to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company employ or a Subsidiary retain any employees of the CompanyXxxxx Station Business ("Xxxxx Station Employees") or the Tribune Station Business ("Tribune Station Employees"), as the case may be, on or after the one handClosing Date and any employees so employed or retained shall be so employed or retained on an "at will" basis only, and a Continuing Employeeunless Tribune or Xxxxxxxx, on as the other handcase may be, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as shall otherwise expressly agree in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Periodwriting.
(ci) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service Tribune shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes assume any obligations under any employee benefit plan maintained, or arrangement contributed to, by Meredith, KTC or any of Parent that their Affiliates ("Xxxxxxxx Plans") or any other obligations of Xxxxxxxx or any of their Affiliates to Xxxxx Station Employees. Xxxxxxxx shall not assume any obligations under any employee benefit plan maintained, or contributed to, by Tribune or any of its Affiliates ("Tribune Plans") or any other obligations of Tribune or any of its Affiliates to Tribune Station Employees. Without limiting the foregoing, Tribune and the Xxxxxxxx each shall provide continuation coverage to each individual who under the terms of its respective health plan is entitled to continuation rights pursuant to Section 4980B of the Code or Part 6 of Subtitle I of ERISA.
(ii) Each Tribune Station Employee who becomes employed by the Xxxxxxxx Sub and each Xxxxx Station Employee who becomes employed by the Tribune Sub, in either case as of the Closing Date or within four weeks thereafter (a defined benefit pension plan"Continuing Employee"), postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply participate in any group medical, dental and life insurance plans for purposes which such employee becomes eligible on the first day of satisfying the first month following the Closing Date, without any waiting periods, evidence of insurability requirementsinsurability, or the and without application of any pre-existing condition limitations with respect to any Parent Planlimitations. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods All claims arising prior to the same extent waived Closing Date under the applicable Plan. The Continuing Employees Tribune Plans shall be given credit for amounts paid counted under a corresponding Plan of Xxxxxxxx Plans, and all claims arising prior to the Company or any Subsidiary during the same period Closing Date under Xxxxxxxx Plans shall be counted under Tribune Plans, for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid maximums, benefit maximums, and all other similar limitations for calendar year in accordance which the Closing Date occurs. Tribune shall take into account the service of Continuing Employees with the terms Xxxxxxxx Sub prior to the Closing Date and conditions Xxxxxxxx shall take into account the service of Continuing Employees with the Tribune Sub prior to the Closing Date, in each case for purposes of determining such employees' eligibility for holidays, sick days and vacation benefits. Each Xxxxxxxx Plan and Tribune Plan that includes a qualified cash or deferred arrangement (within the meaning of Section 401(k) of the Parent Code) shall accept the rollover of distributions from any Tribune Plan during or Xxxxxxxx Plan, as the applicable plan yearcase may be, directed by Continuing Employees. Except as otherwise set forth herein, Tribune and Xxxxxxxx, each in its sole discretion, may modify or terminate any of its respective employee benefit plans, programs, policies or arrangements at any time after the Closing Date for any reason.
(iii) Tribune and Xxxxxxxx each shall bear the cost and expense of any workers' compensation claim asserted and arising out of an injury sustained by any of its respective employees prior to the Closing Date.
(d) The provisions Notwithstanding anything in Sections 5.2(a), (b) and (c) to the contrary, Tribune shall honor the covenants of this Section 5.6 are solely for the benefit Xxxxxxxx set forth in Article VII of the parties hereto and nothing in this Section 5.6Xxxxx Merger Agreement, express or impliedas if Tribune, shall confer upon any Continuing Employeerather than Xxxxxxxx, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Planwere the "Purchaser" thereunder.
Appears in 2 contracts
Samples: Asset Exchange Agreement (Meredith Corp), Asset Exchange Agreement (Tribune Co)
Employees; Employee Benefit Plans. (a) During the 12-month period following The benefits to be provided to employees of Dime and its Subsidiaries as of the Effective Time ("Covered Employees") shall be the “Protection Period”)benefits provided to similarly situated employees of Washington Mutual, Parent which shall be so provided as soon as practicable after the Effective Time, but in no event later than the date the Covered Employees are placed on the same payroll service as such employees of Washington Mutual; provided, however, that until such time that the Covered Employees are placed on the same payroll service as such employees of Washington Mutual, Washington Mutual shall, or shall cause the Surviving Company its Subsidiaries to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are benefits no less favorable, in each instancethe aggregate, to those than the benefits provided to similarly situated employees under Washington Mutual's plans, programs and arrangements. Washington Mutual shall, from and after the Continuing Effective Time, (i) comply with the contractual commitments of Dime to its current and former employees in accordance with their terms and honor all employee benefit obligations to current and former employees of Dime and its Subsidiaries under the applicable contractual commitment, (ii) provide Covered Employees immediately credit for the most recent period of uninterrupted service (including any bridging or prior service credit, without regard to whether there has been an interruption in service, solely to the extent provided by Dime and its Subsidiaries as of the date hereof) with Dime or any of its Subsidiaries (and their predecessors) prior to the Closing Effective Time for all purposes under employee benefit plans of Washington Mutual or its Subsidiaries (including for purposes of benefit accrual), (iii) cause any and all pre-existing condition limitations (to the extent such limitations did not apply to a pre-existing condition under comparable Plans) and eligibility waiting periods under group health plans of Washington Mutual to be waived with respect to Covered Employees (and their eligible dependents) who become participants in such group health plans and (iv) use reasonable efforts to give credit for or otherwise take into account the out-of-pocket expenses and annual expense limitations paid by each Covered Employee under the comparable Plans for the year in which the Effective Time occurs; provided, however, that no credits for service as described in clause (ii) employee above shall be permitted if to do so would result in duplication of benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparableunder such plans. From and after the Effective Time, Washington Mutual shall honor all vacation and paid time off of the Covered Employees accrued as of the Effective Time, in accordance with the aggregateDime policy as in effect on the date hereof. Except as otherwise prohibited under this Section 7.7, to those provided to the Continuing Employees immediately prior to the Closingnothing in this Section 7.7 shall be interpreted as preventing Washington Mutual or its Subsidiaries from amending, modifying or terminating any Plans or other contracts, arrangements, commitments or understandings, in a manner consistent with their terms and applicable law.
(b) During Subject to applicable law and the Protection Periodamendment provisions of any defined contribution plans maintained by Dime or its Subsidiaries (the "401(k) Plans"), Parent Dime agrees to amend the 401(k) Plans prior to the Effective Time so that new participant loans are no longer available as of the Effective Time.
(c) Dime shall be permitted to pay up to an aggregate of $8 million as retention bonuses to such employees of Dime or any of its Subsidiaries as Dime may determine (but not including any employees who are parties to any individual employment or change in control agreements), with such bonus amounts payable on the earlier of the first anniversary of the Effective Time or the date the eligible employee's employment is terminated by Dime or Washington Mutual or any of their Subsidiaries.
(d) With respect to the Severance Pay Program for Employees of Dime and Participating Subsidiaries (including the programs in place for Non-Officers, Vice Presidents or lower, and Senior Vice President), as soon as practicable after the date hereof but in any event prior to the Effective Time, Dime shall, or shall cause its Subsidiaries to, amend such plans to provide that the Surviving Company payments to assume be made to any participants therein shall only be made in a lump sum cash amount, and honor in no event shall Dime provide the Company’s and participants the right to elect to receive such payments in the form of an annuity. In addition, as soon as practicable after the date hereof but in any event prior to the Effective Time, Dime shall, or shall cause its Subsidiaries’ obligations under all Subsidiaries to, use reasonable best efforts to cause Covered Employees who are parties to employment, severancechange-in- control or severance agreements (which have been previously disclosed to Washington Mutual on Section 4.11(a) of the Dime Disclosure Schedule) to agree to receive any severance or other related payments thereunder, which would otherwise be paid in the form of an annuity, in a lump sum payment within thirty (30) days after the date such payments would otherwise commence (or, if such payments have already commenced, after the date of such amendment); provided, however, that all such Covered Employees shall continue to be entitled to all other rights and benefits to which they are previously entitled under any such agreements, which shall remain in full force and effect, as modified to take into account solely the provisions described herein; and provided, further, however, that in no event shall any such amendments be made to those agreements pursuant to which any Covered Employee is entitled to receive an amount payable either (i) in respect of a covenant not to solicit or (ii) expressly not in respect of any severance obligation.
(e) With respect to the Dime Employee Stock Purchase Plan, Dime shall take all actions necessary to cause the offering period commencing on July 1, 2001 under such plan to terminate effective prior to the Effective Time, and bonus agreementsWashington Mutual shall provide that all Covered Employees shall, if any, between the Company or a Subsidiary effective as of the CompanyEffective Time, be eligible to participate in the Washington Mutual Employee Stock Purchase Plan, on the one handsame terms and conditions as similarly situated employees of Washington Mutual.
(f) With respect to the Committee as defined under the Employee Umbrella Trusts (the "Employee Committee") and the Committee as defined under the Director Umbrella Trust (the "Director Committee"), prior to the Effective Time, Dime shall cause all actions necessary to be taken to provide that at and following the Effective Time, each such committee shall be made up of three members, selected as follows: (i) two of the members of the Employee Committee shall be current senior executive officers of Dime and two of the members of the Director Committee shall be nonemployee directors of Dime (and each such committee member, a Continuing Employee"Dime Member"), on in each case selected by the other handEmployee Committee (or Director Committee, as applicable) as constituted immediately prior to the Effective Time, including but not limited to and (ii) the MoneyGram Payment Systems, Inc. Severance Plan as in effect as third member of the Effective Time (Employee Committee and the “Company Severance Plan”)Director Committee shall be selected by Washington Mutual. Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth In addition, in the Company Severance Plan event that a Dime Member ceases to any Continuing Employees who are terminated during serve on the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
Employee Committee (c) For all purposes (including for purposes of vestingor Director Committee, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”as applicable), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan he or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) she shall be treated as service with Parent permitted to designate his or her successor (or, in the same extent recognized by case of his or her death or disability, the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees remaining Dime Member shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearpermitted to so designate).
(d) The provisions of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.
Appears in 2 contracts
Samples: Merger Agreement (Dime Bancorp Inc), Merger Agreement (Washington Mutual Inc)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to Corporation and its Subsidiaries to, (i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including full credit for purposes of vestingeligibility, eligibility to participate vesting and level of benefits (other than for vesting purposes benefit accruals under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored plans or arrangements maintained by Parent, the Surviving Corporation or any Subsidiary of Parent or the Surviving Company Corporation (collectively, the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company and its Subsidiaries; (ii) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan that is a comparable Planwelfare benefit plan that such employees may be eligible to participate in after the Effective Time; (iii) provide credit under any such welfare plan for any co-payments, deductibles and out-of-pocket expenditures for the remainder of the coverage period during which any transfer of coverage occurs; provided, however, that no such service shall not be recognized to the extent that such recognition would result in a the duplication of benefits. Notwithstanding ; and (iv) honor, for a period of no less than one year following the foregoingEffective Time, in accordance with their terms all employee benefit plans or arrangements maintained by the Company immediately prior to the extent permitted under applicable lawEffective Time.
(b) From and after the Effective Time until the one year anniversary of the Effective Time, and subject to the immediately following sentence, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirementsshall, or shall cause the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations Surviving Corporation and eligibility waiting periods its Subsidiaries to, provide to the same extent waived under the applicable Plan. The Continuing Employees compensation and benefit arrangements that are no less favorable in the aggregate than the compensation and benefit arrangements that are provided to similarly situated employees of Parent; provided, however, that in no event shall such Continuing Employees’ compensation and benefit arrangements be given credit for amounts paid under a corresponding Plan less favorable in the aggregate than such Continuing Employees’ current compensation and benefit arrangements. As soon as practicable after the Effective Time, Parent shall, or shall cause the Surviving Corporation and its Subsidiaries to, cause the Continuing Employees to commence participation in such Parent Plans as are provided to similarly situated employees of Parent. From and after the Effective Time until the one year anniversary of the Company or any Subsidiary during Effective Time and unless otherwise mutually agreed to by the same period for purposes of applying deductiblesparties in writing, co-payments Parent and out-of-pocket maximums as though such amounts had been paid the Surviving Corporation shall keep in accordance full force and effect, and comply with the terms and conditions of, any agreement in effect as of the Parent Plan during date of this Agreement between or among the applicable plan yearCompany or any of its Subsidiaries and any of its or their employees relating to severance pay or similar benefits.
(dc) The provisions of this Section 5.6 5.08 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the Effective Time, the Surviving Corporation or any of its Subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.6, express 5.08) under or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits by reason of any nature or kind whatsoever under provision of this Agreement. Nothing contained in this Section 5.6, express 5.08 or implied, elsewhere in the Agreement shall be deemed an amendment construed to prevent, from and after the Effective Time, the termination of employment of any Planindividual Continuing Employee or, subject to the provisions of Section 5.08(a), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular Plan in accordance with its terms.
Appears in 2 contracts
Samples: Merger Agreement (Viking Holdings LLC), Merger Agreement (Virtual Radiologic CORP)
Employees; Employee Benefit Plans. (a) During At 12:01 am on the 12-month period calendar day immediately following the Effective Time (the “Protection Period”)Closing Date, Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (such Company Employeesshall become eligible to participate in the employee benefit plans sponsored or maintained by Acquiror, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided pursuant to the Continuing Employees immediately prior to the Closing terms thereof (excluding equity-based plans and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefitsplans) that are substantially comparable, (the “Acquiror Plans”) in the aggregatewhich similarly situated employees of Acquiror participate, to those provided to the Continuing Employees immediately prior to the Closingsame extent as similarly situated employees of Acquiror so participate.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with With respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if anyAcquiror Plan, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit planplan of Acquiror nor any sabbatical program of Acquiror), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable PlanAcquiror; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Acquiror Plan. Each Parent Acquiror Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Company Employees shall be given credit credit, to the extent administratively feasible, for amounts paid under a corresponding Plan of the Company or any Subsidiary benefit plan during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Acquiror Plan during the applicable plan year.
(dc) The Company and Acquiror acknowledge and agree that all provisions of this Section 5.6 contained herein with respect to employees, officers, directors, consultants and independent contractors are solely included for the sole benefit of the parties hereto Company and nothing Acquiror and shall not create any right (i) in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remediesother person, including Plans or any right beneficiary thereof or (ii) to employment or continued employment for with Acquiror or any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreementits affiliates. Nothing in this Agreement shall prevent Acquiror from amending, modifying or terminating after the Effective Date any Plan maintained or sponsored by the Company.
(d) The Company and each of its Subsidiaries shall take all actions necessary to terminate, immediately prior to the Effective Time, any Plan that is intended to constitute a tax-qualified defined contribution plan under Code Section 5.6401(k) (a “401(k) Plan”), express or impliedin which case the Company Employees shall, effective immediately prior to the Effective Time, be fully vested in any unvested amounts contained in their accounts under the 401(k) Plan. Taking into account the provisions of Section 7.6(b) above, then-current eligible Company Employees shall be deemed eligible to participate in an amendment Acquiror Plan that corresponds to the 401(k) Plan either at 12:01 am on the calendar day immediately following the Closing Date or on the first calendar day of the month following the month of the Effective Time, as determined by Acquiror. As soon as practicable following IRS approval of the termination of the 401(k) Plan, the assets thereof shall be distributed and Acquiror shall permit the employees of the Company employed by the Surviving Company to roll any eligible rollover distributions (and eligible loans under the Company’s 401(k) Plan) over into the corresponding Acquiror Plan.
(e) Upon reasonable advance notice, the Company and each of its Subsidiaries shall take all actions necessary (including cooperation with Acquiror in the provision of notices, the making of any required filings with the applicable Governmental Entity, and the distribution of enrollment information) to terminate, effective as of the Effective Time, any health and welfare Plan identified by Acquiror, and to permit Company Employees, at 12:01 am on the calendar day immediately following the Closing Date, to be eligible to commence participation in a corresponding Acquiror Plan.
Appears in 2 contracts
Samples: Merger Agreement (Schwab Charles Corp), Merger Agreement (optionsXpress Holdings, Inc.)
Employees; Employee Benefit Plans. (a) During the 12-month period Within 24 hours following the Effective Time Closing (or such other time as the “Protection Period”Parties may mutually agree), Parent Buyer shall or shall cause the Surviving Company make written offers of employment to provide to the Company Employees who are all active employees of the Company or a Subsidiary of Seller and DiscCo (collectively, the Company at the Effective Time (such Company Employees, “Continuing Offered Employees”), while which offer shall remain open for ten (10) days (or such Continuing Employees remain employed by other time as the Company or a Subsidiary, Parties may mutually agree) following the Closing Date. Each such offer shall provide (i) an annual base salary or wages and cash incentive compensation opportunities that are no hourly wage rate (as the case may be) not less favorablethan the base salary or hourly wage rate in effect as of the date hereof, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparablecomparable in the aggregate to the employee benefits received by such Offered Employee as of the date hereof, or, in the aggregatediscretion of Buyer, employee benefits offered to those similarly situated employees of Parent or Buyer from time to time; provided, that any and all equity awards by Parent or Buyer shall be at Parent’s sole discretion. The Offered Employees who accept such offers of employment and become employees of Buyer (or any of its Affiliates) shall be collectively referred to as the “Continuing Employees.” Subject to Buyer’s compliance with this Section 4.14(a), the Seller shall be solely responsible for, and liable to pay, severance (if any) that becomes due to an Offered Employee and for the provision of health plan continuation coverage in accordance with the requirements of Section 4980B of the Code, Part 6 of Title I of ERISA or any other applicable state or local Legal Requirement who (x) is an Offered Employee but who rejects Buyer’s (or its Affiliate’s) offer of employment provided to in accordance with this Section 4.14(a) or (y) is a former employee of Seller or any of their Affiliates as of the Continuing Employees immediately prior to Closing Date, in each case in accordance with COBRA and the Closingterms of the applicable plans.
(b) During As soon as reasonably practicable after the Protection PeriodClosing Date or such later date agreed to by the Parties, Parent but in no event later than December 31, 2016, the Buyer shall or shall cause take all actions necessary to implement and establish “employee benefit plans” within the Surviving Company meaning of Section 3(3) of ERISA and a 401(k) plan intended to assume and honor the Company’s and its Subsidiaries’ obligations be qualified under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary Section 401(a) of the CompanyCode (collectively, on “Applicable Plans”) in which the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility be eligible to participate from and level after the date of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for establishment. For purposes of determining eligibility to participate, vestingvesting and benefit accrual in the Applicable Plans, entitlement the service of each Continuing Employee prior to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) Closing Date shall be treated as service with Parent Buyer, to the same extent recognized by Seller prior to the Company under a comparable PlanClosing Date; provided, however, that such service shall not be recognized to the extent that such recognition would result in a any duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent benefits and Buyer shall not be required to provide service credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent Buyer Plan that is a defined benefit pension plan. In addition, postretirement welfare plan or grandfathered plan (or other plan subject to applicable Legal Requirement, Buyer shall use its best efforts to ensure that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirementsthe Applicable Plans waive, or the application of any pre-existing condition caused to be waived, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Continuing Employees under any Parent Plan. Each Parent Buyer Plan shall waive pre-existing condition limitations in which such Continuing Employees may be eligible to participate after the Closing Date.
(c) Effective as of the later of the Closing Date and eligibility waiting periods to the same extent waived under date on which the applicable Plan. The Continuing Employees’ employment commences with the Buyer (such date, the “Transfer Date”), all Continuing Employees shall be given credit for amounts paid under a corresponding cease to participate in any Employee Benefit Plan of sponsored by the Company Seller or any Subsidiary during of their Affiliates. The Seller shall retain all liabilities accrued through the same period for purposes Transfer Date in respect of applying deductiblessuch Continuing Employees’ participation in Seller’s Employee Benefit Plans. From and after the Transfer Date, co-payments the Buyer shall have the reimbursement obligations to Seller set forth therein with respect to the costs and out-of-pocket maximums as though such amounts had been paid expenses associated with participation by the Continuing Employees in accordance with any Employee Benefit Plans sponsored by the terms and conditions Seller or any of the Parent Plan during the applicable plan yeartheir Affiliates.
(d) The provisions of this Section 5.6 are solely for Buyer shall retain all Continuing Employees in the benefit employ of the parties hereto and Buyer for a period of not less than ninety (90) days following the Closing Date; provided, however, that nothing contained in this Section 5.64.14 or elsewhere in this Agreement, express expressed or implied, shall confer upon (i) be treated as limiting or prohibiting the Buyer from discharging or otherwise terminating the employment of any Continuing Employee at any time from and after such period of ninety (90) days following the Closing Date, subject only to the terms of any employment agreement then in force with a Continuing Employee, (ii) shall require the establishment, amendment or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits modification of any nature Employee Benefit Plan or kind whatsoever under this Agreement. Nothing Applicable Plan or, except as expressly set forth in this Section 5.64.14, express constitute a limitation on rights to amend, modify, merge or impliedterminate after the Closing Date any Employee Benefit Plan or Applicable Plan, shall be deemed an amendment (iii) give any current or former employee, officer, director or other independent contractor (including any beneficiary or dependent of the foregoing) of the Parties or their respective Affiliates any third party beneficiary or other rights, or (iv) except as explicitly set forth in this Section 4.14, obligate Buyer or any of its Affiliates to (A) maintain any particular Employee Benefit Plan or Applicable Plan, or (B) subject only to the terms of any Planemployment agreement then in force with a Continuing Employee, director or other service provider, retain the employment or services of any current or former employee, officer, director or other service provider of the Seller.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Ds Healthcare Group, Inc.)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”), Parent shall or Purchaser shall cause each of the Surviving Company Initial Acquired Companies and Subsequent Acquired Companies, if any, to provide employ on the applicable Closing Date or continue to employ on the Company Employees who are applicable Closing Date all of the employees of the such Acquired Company or a Subsidiary of the Company at the Effective Time (as applied to any such Company EmployeesAcquired Company, “Continuing Employees”)) on terms and conditions of employment, while such Continuing Employees remain employed by the Company or a Subsidiaryincluding pay levels, job descriptions and benefits, that are substantially similar in all material respects either (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees terms and conditions of employment immediately prior to the Closing and Date or (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior terms and conditions of employment that apply to similarly situated employees of Purchaser. The foregoing covenant of Purchaser shall not restrict or limit in any manner Purchaser’s management of the Closing.
(b) During business of the Protection Period, Parent shall Initial Acquired Companies or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreementsSubsequent Acquired Companies, if any, between after the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior applicable Closing nor require Purchaser to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to retain any Continuing Employees who are terminated during Employee for any period of time after the Protection Period applicable Closing Date or to maintain any particular pay levels, job descriptions or benefits or other terms and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including conditions of employment for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Planthem; provided, however, that Purchaser shall be responsible for any and all notices, liabilities, costs, payments and expenses arising from any action by Purchaser (including breach of contract, defamation or retaliatory discharge) regarding any employee of an Initial Acquired Company or Subsequent Acquired Company, if any, or any Continuing Employee, including any such service liability (i) under any applicable Law that relates to employees, employee benefit matters or labor matters, (ii) for dismissal, wrongful termination or constructive dismissal or termination, or severance pay or other termination pay, or (iii) under or with respect to any benefit plan, program, contract, policy, commitment or arrangement of the Acquired Companies, including the Retention Plans maintained by the Acquired Companies (collectively, “Employee Benefit Plans”) or under and with respect to the Retention Plans (other than those maintained by the Acquired Companies) to the extent such Retention Plans provide payments or benefits with respect to any Continuing Employee; provided, however, that Purchaser shall not be recognized responsible for any costs, payments or expenses under or with respect to the Retention Plans to the extent that such recognition would costs, payments and/or expenses exceed, in the aggregate, Twenty Five Million Dollars ($25,000,000), subject to reductions, if any, pursuant to the terms of the Retention Plans.
(b) Prior to the applicable Closing Date, Purchaser may notify Seller Parent that Purchaser desires to make employment offers, effective as of the applicable Closing Date, to certain identified employees of the BellSouth Entities who provide services with respect to any Initial Acquired Company or Subsequent Acquired Company, if any, and shall provide Seller Parent with a list of such individuals. If Seller Parent consents thereto, which consent shall not be unreasonably withheld, Purchaser shall be entitled to make such offers of employment and Seller Parent shall, or shall cause its applicable Affiliates to, provide Purchaser with reasonable access to such employees for purposes of making the employment offers; provided, however, that if any employee for whom Purchaser desires to make an employment offer also provides services with respect to any Acquired Company that is not the subject of the Initial Closing or any Subsequent Closing, Sellers Parent’s refusal to consent to such employment offer shall not be deemed unreasonable. Any person who accepts Purchaser’s offer of employment made pursuant to this subsection (b) shall be treated as a Continuing Employee for purposes of this Section 6.13.
(c) Subject to Section 6.5(d), after the applicable Closing Date, Sellers shall be responsible for all relocation costs arising as a result in of returning to their home country any expatriates or impatriates (other than those who are Continuing Employees) who, immediately prior to the applicable Closing Date, provide services to an Acquired Company that is the subject of a duplication of benefitsClosing Date, including severance payments. Notwithstanding the foregoingThe applicable Acquired Company agrees to honor, perform and be liable for, and, to the extent permitted under applicable lawnecessary, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension planassume, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periodsall obligations, evidence of insurability requirementsif any, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived retention bonuses under the applicable Plan. The Retention Plans payable to or on behalf of those persons described in the preceding sentence, including, for this purpose, those persons who are Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearEmployees.
(d) The provisions After the applicable Closing Date, Purchaser agrees that each Initial Acquired Company or Subsequent Acquired Company, if any, or Purchaser shall honor, pay, perform and be liable for and, to the extent applicable, shall assume, (i) all obligations and liabilities under and with respect to all Employee Benefit Plans, (ii) all benefits and payments to, or with respect to, employees or former employees required under applicable Law, including the workers’ compensation and other obligations of such Acquired Company under labor and employment Laws, (iii) all Tax equalization, reimbursements, retention and similar charges and costs, and all other liabilities related to expatriates who, at the direction of the BellSouth Entities, worked for or provided services to such Acquired Companies (including all liabilities and obligations for retention bonuses under the Retention Plans) and (iv) all liabilities and obligations under and with respect to the employment agreements set forth on Schedule 6.13(d). If Sellers pay any amounts described in clause (iii) of this Section 5.6 6.13(d), Purchaser shall, or shall cause the applicable Acquired Company for which the expatriate provided services immediately prior to the applicable Closing Date to, reimburse Sellers for such amounts.
(e) It is understood and agreed that all provisions contained in this Agreement with respect to employee benefit plans or employee compensation are solely included for the sole benefit of the respective parties hereto and nothing do not and shall not create any right in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remediesother Person, including any right to employment participant in any Employee Benefit Plan or continued employment for any specified period, other employee benefit or compensation plan or benefits any beneficiary thereof or any employee or former employee of any nature Initial Acquired Company or kind whatsoever under this Agreement. Nothing in this Section 5.6Subsequent Acquired Company, express or implied, shall be deemed an amendment of any Planif any.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Telefonica S A), Stock Purchase Agreement (Telefonica Mobile Inc)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to, (i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”)) full credit under any employee benefit plans or arrangements maintained by Parent, while the Surviving Company or any Subsidiary of Parent or the Surviving Company covering such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits benefit, cash balance or supplemental executive retirement plan benefits) that are substantially comparableequity-based plans), in the aggregateincluding, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systemsto, Inc. Severance Plan as in effect as of the Effective Time vacation and paid time off accruals, (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vestingcollectively, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company and its Subsidiaries; (ii) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan that is a comparable Planwelfare benefit plan that such employees may be eligible to participate in after the Effective Time to the same extent waived by the Company and its Subsidiaries or otherwise not subject to a limitation by the Company and its Subsidiaries; (iii) provide credit under any such welfare plan for any co-payments, deductibles and out-of-pocket expenditures for the remainder of the coverage period during which any transfer of coverage occurs; and (iv) honor in accordance with their terms all employee benefit plans or arrangements maintained by the Company immediately prior to the Effective Time.
(b) From a period of one (1) year from and after the Effective Time, and subject to the immediately following sentence, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, provide to the Continuing Employees compensation and benefit arrangements that are no less favorable in the aggregate than the compensation and benefit arrangements that are provided to similarly situated employees of Parent; provided, however, that in no event shall such service shall not Continuing Employees compensation and benefit arrangements be recognized to less favorable in the extent that aggregate than such recognition would result in a duplication of benefitsContinuing Employees’ current compensation and benefit arrangements. Notwithstanding As soon as practicable after the foregoing, to the extent permitted under applicable lawEffective Time, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirementsshall, or shall cause the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations Surviving Company and eligibility waiting periods to its Subsidiaries to, cause the same extent waived under the applicable Plan. The Continuing Employees to commence participation in such Parent Plans as are provided to similarly situated employees of Parent. From and after the Effective Time, Parent and the Surviving Company shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibleskeep in full force and effect, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance comply with the terms and conditions of, any agreement in effect as of the Parent Plan during date of this Agreement between or among the applicable plan yearCompany or any of its Subsidiaries and any of its or their employees.
(dc) The provisions of this Section 5.6 7.5 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.6, express 7.5) under or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits by reason of any nature or kind whatsoever under provision of this Agreement. Nothing contained in this Section 5.6, express 7.5 or implied, elsewhere in the Agreement shall be deemed an amendment construed to prevent, from and after the Effective Time, the termination of employment of any Planindividual Continuing Employee or, subject to the provisions of Sections 7.5(a) and 7.5(b), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular Plan in accordance with its terms.
Appears in 2 contracts
Samples: Merger Agreement (Enventis Corp), Merger Agreement (Consolidated Communications Holdings, Inc.)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time Sellers have made available to Buyer a list, as of March 31, 2021 (the “Protection PeriodSpecified Employee Census”), Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary of each employee of Sellers or wages and cash incentive compensation opportunities that their Affiliates who are no less favorable, in each instance, to those provided providing services to the Continuing Employees immediately prior to Spending Account Business on a dedicated basis as of such date (the Closing “Specified Employees”) and (ii) employee benefits (other than which includes for each Specified Employee the individual’s title or position, employing entity, hire date, years of credited service, work location, base salary, target annual cash bonus opportunity for the 2021 fiscal year, actual cash bonus payment for the 2020 fiscal year, outstanding retention or transaction bonus, accrued vacation, full-time or part-time status, and exempt or non-exempt classification. Each Specified Employee is currently employed by the entity listed in the Specified Employee Census. Except for any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparableservices pursuant to the Transition Services Agreement, the services provided by the Specified Employees constitute all of the services reasonably required to conduct and operate the Spending Account Business in the same manner as of the Closing Date, in all material respects, as conducted by MII Life and SamCo as of the aggregate, to those provided to the Continuing Employees immediately prior to the Closingdate hereof.
(b) During Sellers and their Affiliates (with respect to the Protection PeriodSpending Account Business, Parent shall or shall cause the Surviving Company Acquired Assets and the Specified Employees) are and since December 31, 2017 have been in compliance in all material respects with all Applicable Laws relating to assume labor, the hiring of employees and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary employment of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective TimeSpecified Employees, including but not limited provisions thereof relating to wages and hours (including the MoneyGram Payment Systemsclassification of employees as “exempt” or “non-exempt” from overtime under Applicable Law and meal and rest breaks), Inc. Severance Plan collective bargaining, plant closings and layoffs (including the Worker Adjustment and Retraining Notification Act of 1988, as in effect as of the Effective Time amended, or any similar Laws (the “Company Severance PlanWARN Act”)), employment discrimination, equal opportunity, civil rights, safety and health, workers’ compensation, unemployment insurance, pay equity, classification of employees and independent contractors, and the collection and payment of withholding and/or social security Taxes. Parent shall Sellers and their Affiliates have, with respect to each Specified Employee, met all requirements required by Applicable Law or shall cause regulation relating to the Surviving Company employment of foreign citizens, including requirements of Form I-9, and, to provide the severance payments and benefits set forth Knowledge of Sellers, each Specified Employee is permitted to work in the Company Severance Plan jurisdiction in which such Person is employed. Sellers and their Affiliates (with respect to the Spending Account Business, the Acquired Assets and the Specified Employees) are (and since December 31, 2017 have been), in compliance with all Applicable Laws that could require overtime to be paid to any Continuing Employees who are terminated during Specified Employee, and no Specified Employee has, to the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection PeriodKnowledge of Sellers, threatened to bring a claim for unpaid compensation or employee benefits, including overtime amounts.
(c) For all purposes There is no, and for the past three (including 3) years there has been no, unfair labor practice complaint against Sellers or any of their Affiliates relating to any Specified Employee pending before the National Labor Relations Board or any other Governmental Body. There are no, and for purposes of vestingthe past three (3) years there have been no, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) Proceedings with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility relating to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company Sellers or any Subsidiary of their Affiliates (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to the Spending Account Business or the Acquired Assets) pending before any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods applicable Governmental Body responsible for the prevention of unlawful employment practices relating to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearSpecified Employee.
(d) The provisions of this Section 5.6 are solely There is no, and for the benefit past three (3) years there has been no, labor strike, material dispute, material grievance, arbitration, slowdown or stoppage actually pending or, to the Knowledge of Sellers, threatened against or involving Sellers or any their Affiliates (with respect to the Spending Account Business, the Acquired Assets and the Specified Employees).
(e) No labor union or other labor organization represents any Specified Employees or any other employees of the parties hereto Spending Account Business, and nothing none of the Specified Employees are covered by any collective bargaining or similar agreement or union contract with any labor union or labor organization in this Section 5.6respect of their employment with Sellers or their Affiliates. To the Knowledge of Sellers, express in the past three (3) years, no labor union has taken any action with respect to organizing the Specified Employees or impliedany other employees of the Spending Account Business or the Acquired Assets.
(f) To the Knowledge of Sellers, shall confer upon no Specified Employee or independent contractor of the Spending Account Business is in any Continuing Employeematerial respect in violation of any term of any employment agreement, nondisclosure agreement, noncompetition agreement, restrictive covenant or legal representative other obligation: (i) owed to Sellers or beneficiary thereoftheir Affiliates (with respect to the Spending Account Business, the Acquired Assets and the Specified Employees); or (ii) owed to any rights or remedies, including any third party with respect to such Person’s right to employment be employed or continued employment for engaged by Sellers or their Affiliates.
(g) To the Knowledge of Sellers, Sellers and their Affiliates (with respect to the Spending Account Business, the Acquired Assets and the Specified Employees) have investigated all sexual harassment allegations against or involving a Specified Employee of which they are aware. Sellers do not reasonably expect any specified period, or compensation or benefits of material Liability with respect to any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plansuch allegations.
Appears in 2 contracts
Samples: Asset and Unit Purchase Agreement (Healthequity, Inc.), Asset and Unit Purchase Agreement (Healthequity, Inc.)
Employees; Employee Benefit Plans. (a) During Dime agrees that, as of --------------------------------- the 12-month period following Effective Time, the employees of BFS and its subsidiaries at such time ("BFS --- Employees") shall be employed upon terms and conditions (including retiree and --------- other benefits) no less favorable than those generally afforded to other employees of Dime and its subsidiaries holding similar positions; provided, that -------- service with BFS or its subsidiaries or any predecessor thereto prior to the Effective Time shall be treated as service with Dime or its subsidiaries for purposes of any length-of-service requirements, waiting periods, eligibility periods, vesting periods or differential benefits based upon length-of-service requirements (the “Protection Period”but not for pension benefit accrual purposes), Parent including length- of-service requirements used to determine the number of weeks of vacation to which a BFS Employee is entitled under the relevant Dime policy and to satisfy any waiting periods concerning "preexisting conditions" and any "copayment" or deductible requirements); and provided, further, that nothing herein shall (1) -------- ------- prevent the amendment or shall cause termination of any Compensation Plan of BFS in accordance with its terms, (2) require the Surviving Company Corporation to maintain an employee stock ownership plan or to provide to or permit investment in the Company Employees who are employees securities of BFS or the Surviving Corporation or (3) limit or restrict the ability of the Company Surviving Corporation to terminate the employment of any officer or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closingemployee.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company Dime agrees to assume and honor the Company’s and its Subsidiaries’ obligations under in accordance with their terms all employment, severanceseverance and termination contracts, agreements and bonus agreementsarrangements and employee benefit plans set forth in Schedule 4.1(q); provided, if anythat the --------------- -------- foregoing shall not prevent the Surviving Corporation from amending or terminating any such plan, between contract, agreement, arrangement or plan in accordance with its terms. It is Dime's present intention that current recipients of retiree medical benefits from BFS and its subsidiaries will receive retiree medical benefits no less favorable than those generally afforded to employees of Dime and its subsidiaries holding similar positions; provided, -------- that service with BFS or its subsidiaries or any predecessor thereto prior to the Company Effective Time shall be treated as service with Dime or a Subsidiary its subsidiaries; and provided, further, that such recipients shall not be required to make any -------- ------- contribution in respect of such benefits unless required in good faith by Dime for reasons related to the accounting by Dime for postemployment benefits other than pensions under Statement of Financial Accounting Standards No. 106 (or any amendment or successor thereto).
(c) BFS shall take such action as is necessary to terminate the BFS Employee Stock Ownership Plan ("BFS ESOP") effective as of the CompanyEffective Time. -------- Subject to applicable laws and regulations, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or BFS shall cause the Surviving Company BFS ESOP to be amended to provide the severance payments and benefits set forth that, in the Company Severance Plan event of the termination of the BFS ESOP, participants in the BFS ESOP shall be entitled to any Continuing Employees who are terminated during rollover the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable amounts then credited to their respective accounts under the Company Severance BFS ESOP to the 401(k) Savings Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent Dime. Dime shall use reasonable efforts to have the 401(k) Savings Plan accept such rollovers in the form of cash or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearcash equivalents.
(d) The provisions of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.
Appears in 2 contracts
Samples: Merger Agreement (BFS Bankorp Inc), Merger Agreement (Gould Investors L P)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to, (i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed ) full credit for purposes of determining eligibility and vesting (but not for purposes of any benefit accruals) under any employee benefit plans or arrangements maintained by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits Parent (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparableequity-based plans), in the aggregateincluding, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Periodbut not limited to, Parent shall or shall cause vacation and paid time off accruals, the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a any Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (collectively, the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company and its Subsidiaries; (ii) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan that is a comparable Planwelfare benefit plan that such employees may be eligible to participate in after the Effective Time to the same extent waived by the Company and its Subsidiaries or otherwise not subject to a limitation by the Company and its Subsidiaries; (iii) provide credit under any such welfare plan for any co-payments, deductibles and out-of-pocket expenditures for the remainder of the coverage period during which any transfer of coverage occurs; and (iv) honor in accordance with their terms all employee benefit plans or arrangements maintained by the Company immediately prior to the Effective Time.
(b) From a period of one (1) year from and after the Effective Time, and subject to the immediately following sentence, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, provide to the Continuing Employees compensation and benefit arrangements that are no less favorable in the aggregate than the compensation and benefit arrangements that are provided to similarly situated employees of Parent; provided, however, that in no event shall such service shall not Continuing Employees compensation and benefit arrangements be recognized to less favorable in the extent that aggregate than such recognition would result in a duplication of benefitsContinuing Employees’ current compensation and benefit arrangements. Notwithstanding As soon as practicable after the foregoing, to the extent permitted under applicable lawEffective Time, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirementsshall, or shall cause the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations Surviving Company and eligibility waiting periods to its Subsidiaries to, cause the same extent waived under the applicable Plan. The Continuing Employees to commence participation in such Parent Plans as are provided to similarly situated employees of Parent. From and after the Effective Time, Parent and the Surviving Company shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibleskeep in full force and effect, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance comply with the terms and conditions of, any agreement in effect as of the Parent Plan during date of this Agreement between or among the applicable plan yearCompany or any of its Subsidiaries and any of its or their employees.
(dc) The provisions of this Section 5.6 7.5 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.6, express 7.5) under or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits by reason of any nature or kind whatsoever under provision of this Agreement. Nothing contained in this Section 5.6, express 7.5 or implied, elsewhere in the Agreement shall be deemed an amendment construed to prevent, from and after the Effective Time, the termination of employment of any Planindividual Continuing Employee or, subject to the provisions of Sections 7.5(a) and 7.5(b), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular Plan in accordance with its terms.
Appears in 2 contracts
Samples: Merger Agreement (Consolidated Communications Holdings, Inc.), Merger Agreement (Surewest Communications)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to, (i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”)) full credit under any employee benefit plans or arrangements maintained by Parent, while the Surviving Company or any Subsidiary of Parent or the Surviving Company covering such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits benefit, cash balance or supplemental executive retirement plan benefits) that are substantially comparableequity-based plans), in the aggregateincluding, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systemsto, Inc. Severance Plan as in effect as of the Effective Time vacation and paid time off accruals, (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vestingcollectively, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company and its Subsidiaries; (ii) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan that is a comparable Planwelfare benefit plan that such employees may be eligible to participate in after the Effective Time to the same extent waived by the Company and its Subsidiaries or otherwise not subject to a limitation by the Company and its Subsidiaries; (iii) provide credit under any such welfare plan for any co-payments, deductibles and out-of-pocket expenditures for the remainder of the coverage period during which any transfer of coverage occurs; and (iv) honor in accordance with their terms all employee benefit plans or arrangements maintained by the Company immediately prior to the Effective Time, in each case to the extent permitted under applicable Parent Plans.
(b) From a period of one (1) year from and after the Effective Time, and subject to the immediately following sentence, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, provide to the Continuing Employees compensation and benefit arrangements that are no less favorable in the aggregate than the compensation and benefit arrangements that are provided to similarly situated employees of Parent; provided, however, that in no event shall such service shall not Continuing Employees compensation and benefit arrangements be recognized to less favorable in the extent that aggregate than such recognition would result in a duplication of benefitsContinuing Employees’ current compensation and benefit arrangements. Notwithstanding As soon as practicable after the foregoing, to the extent permitted under applicable lawEffective Time, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirementsshall, or shall cause the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations Surviving Company and eligibility waiting periods to its Subsidiaries to, cause the same extent waived under the applicable Plan. The Continuing Employees to commence participation in such Parent Plans as are provided to similarly situated employees of Parent. From and after the Effective Time, Parent and the Surviving Company shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibleskeep in full force and effect, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance comply with the terms and conditions of, any agreement in effect as of the Parent Plan during date of this Agreement between or among the applicable plan yearCompany or any of its Subsidiaries and any of its or their employees.
(dc) The provisions of this Section 5.6 7.5 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.67.5) under or by reason of any provision of this Agreement. Nothing contained in this Section 7.5 or elsewhere in the Agreement shall be construed to prevent, express or impliedfrom and after the Effective Time, shall confer upon the termination of employment of any individual Continuing Employee or, subject to the provisions of Sections 7.5(a) and 7.5(b), any change in the employee benefits available to any Continuing EmployeeEmployee or the amendment or termination of any particular plan in accordance with its terms. The parties hereto acknowledge and agree that the terms set forth in this Section shall not create any right in any Company Employee or any other Person to any continued employment with the Surviving Company, Parent, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, of their respective Subsidiaries or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing whatsoever, or otherwise alters any existing at-will employment relationship between any Company Employee and the Surviving Company.
(d) With respect to matters described in this Section 5.67.5, express neither the Company nor any Subsidiary will send any written notices or implied, shall be deemed an amendment other written communication materials to Company Employees without the prior written consent of any PlanParent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (ATRM Holdings, Inc.), Merger Agreement (Digirad Corp)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to Corporation and its Subsidiaries to, (i) provide to the Company Employees those employees who are employees are, as of the Company or a Subsidiary of the Company at the Effective Time (such Company EmployeesTime, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, any of its Subsidiaries (ithe “Continuing Employees”) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately with full credit for their prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between service with the Company or a any Company Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, vesting and entitlement to benefits and where length of service is relevant (including for purposes of vacation entitlement (but not for accrual of benefits accrual) under any defined employee benefit pension plan plans or post-retirement welfare benefit plan)arrangement maintained or sponsored by Parent or the Surviving Corporation, service with the Company or any Subsidiary subsidiary of Parent or Surviving Corporation, in which Continuing Employees participate (or any predecessor entity theretothe “Parent Plans”) shall be treated as service with Parent to the same extent recognized by the Company under a comparable PlanCompany; provided, however, that such service shall not be recognized (ii) waive all limitations as to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan preexisting conditions exclusions (or other plan that is no longer open to new participantsactively at work or similar limitations). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations requirements and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations medical, dental and eligibility waiting periods to the same extent waived under the applicable Plan. The vision plans in which Continuing Employees shall may be given eligible to participate in after the Closing Date; and (iii) provide the Continuing Employees and their eligible dependents with credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying co-payments, deductibles, co-payments offsets and maximum out-of-pocket maximums as though such amounts had been paid in accordance with requirements (or similar payments) made under the terms and conditions Company Benefit Plans for the remainder of the Parent Plan during the applicable plan yearcoverage period in which any transfer of coverage occurs, except, in any case of clause (i), (ii) or (iii) above, where doing so would cause a duplication of benefits.
(db) The provisions of this Section 5.6 6.08 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any Company Subsidiary, Parent or any of its subsidiaries, or, on or after the Effective Time, the Surviving Corporation or any of its subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.66.08) under or by reason of any provision of this Agreement.
(c) Nothing contained in this Section 6.08 or elsewhere in this Agreement, express or implied, (i) shall confer upon constitute an amendment to any Company Benefit Plan or (ii) shall be construed to prevent, from and after the Effective Time, the termination of employment of any Continuing EmployeeEmployee or, or legal representative or beneficiary thereofsubject to the provisions of Section 6.08(a), any rights change in the employee benefits available to any Continuing Employee or remedies, including any right to employment the amendment or continued employment for any specified period, or compensation or benefits termination of any nature particular Company Benefit Plan or kind whatsoever under this AgreementParent Plan in accordance with its terms.
(d) Each of the Company and the Company Subsidiaries shall terminate, effective no later than the day immediately preceding the Closing, all employee benefit plans sponsored by the Company or any Company Subsidiary intended to include a Code Section 401(k) arrangement (each, a “401(k) Plan”) (unless Parent provides written notice to the Company that such 401(k) Plan(s) shall not be terminated). Nothing in this Section 5.6Unless Parent provides such written notice, express no later than five Business Days prior to the Closing Date, the Company shall provide Parent with evidence that such 401(k) Plan(s) have been terminated (effective as of no later than the day immediately preceding the Closing) pursuant to resolutions of the Company Board or implied, the board of directors (or other governing body) of the applicable Company Subsidiary. The form and substance of such resolutions shall be deemed an amendment subject to the reasonable prior review and approval of any PlanParent. The Company also shall take such other actions in furtherance of terminating such 401(k) Plan(s) as Parent may reasonably require. In the event that termination of a 401(k) Plan would reasonably be anticipated to trigger liquidation charges, surrender charges or other fees, then the Company shall provide a reasonable estimate of the amount of such charges and/or fees in writing to Parent no later than ten Business Days prior to the Closing.
Appears in 2 contracts
Samples: Merger Agreement (API Technologies Corp.), Merger Agreement (Spectrum Control Inc)
Employees; Employee Benefit Plans. (a) During the 12-month period As of or as soon as practicable following the Effective Time Time, the employees of Seasons and its Subsidiaries (the “Protection PeriodSeasons Employees”), Parent ) shall or shall cause the Surviving Company to provide to the Company Employees who are become employees of the Company Parent or a Subsidiary thereof and shall be eligible to participate in the Parent Plans in which similarly situated employees of Parent or Cadence participate, to the Company same extent as similarly situated employees of Parent or Cadence (it being understood that inclusion of Seasons Employees in such employee benefit plans may occur at the Effective Time (such Company Employeesdifferent times with respect to different plans); provided, “Continuing Employees”)however, while such Continuing Employees remain employed by the Company or a Subsidiary, that (i) base salary nothing contained herein shall require Parent or wages and cash incentive compensation opportunities any of its Subsidiaries to make any grants to any Seasons Employee under the Parent Stock Option Plans, it being understood that any such grants are no less favorablecompletely discretionary, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits nothing contained herein shall require Parent or any of its Subsidiaries to permit a Seasons Employee who is receiving severance as a result of the transactions contemplated by this Agreement pursuant to any employment, severance, consulting or other compensation agreements, plans and arrangements with Seasons or any of its Subsidiaries to participate in any severance or change in control of agreement or plan offered by Parent or any of its Subsidiaries, and (other than any iii) nothing contained herein shall require a Seasons Employee’s participation in the Parent defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the ClosingParent Employee Stock Ownership Plan.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with With respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if anyPlan, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for participation or accrual of benefits under any Parent defined benefit pension plan or post-retirement welfare benefit plan), service with the Company Seasons or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable PlanParent; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent PlanPlan (including those required or governed by the Health Insurance Portability and Accountability Act of 1996). Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable PlanSeasons Plan to the extent information is provided by the employee, third-party administrator or insurance carrier. The Continuing Seasons Employees shall be given full credit for amounts paid under a corresponding Plan of the Company Seasons or any Subsidiary benefit plan during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan year.
(c) Immediately prior to the Effective Time, the Seasons Simple XXX Plan shall be terminated and the Seasons employees who are then participating in the Seasons Simple XXX Plan shall be eligible to become participants in the Parent Employee 401(k) Plan.
(d) The provisions Any person who is serving as an employee of either Seasons or any Subsidiary thereof as of the date of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to Agreement (other than those employees covered by either a written employment or continued severance agreement) whose employment is discontinued by Parent or any of its Subsidiaries within one year after the Effective Time (unless termination of such employment is for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, Cause (as defined below)) shall be deemed an amendment entitled to a severance payment from Parent or its Subsidiary equal in amount to two week’s base pay for each full year such employee was employed by Seasons or a Seasons Subsidiary or any successor or predecessor thereto, subject to a minimum of any Plan.four weeks’ severance
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Seasons Bancshares Inc), Agreement and Plan of Merger (Cadence Financial Corp)
Employees; Employee Benefit Plans. (a) During Section 4.11(a) of the 12-month period following Company Disclosure Letter contains a true and complete list of each “employee benefit plan” (within the Effective Time meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (the “Protection PeriodERISA”), Parent shall including multiemployer plans within the meaning of ERISA Section 3(37)), and all stock purchase, stock incentive, loan, severance, employment, change-in-control, collective bargaining, fringe benefit, deferred compensation plans, agreements, programs, policies and arrangements and all other employee benefit plans, agreements, programs, policies or shall cause other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the Surviving Company to provide to future as a result of the Company Employees who are employees transactions contemplated by this Agreement or otherwise), whether formal or informal, oral or written, legally binding or not, under which (i) any current or former employee, officer, director, consultant or independent contractor of the Company or a Subsidiary any of the Company at the Effective Time its Subsidiaries (such “Company Employees”) has any present or future right to benefits and which are contributed to, “Continuing Employees”), while such Continuing Employees remain employed sponsored by or maintained by the Company or a Subsidiary, (i) base salary any of its Subsidiaries or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than under which the Company or any defined benefit pension benefits of its Subsidiaries has any present or supplemental executive retirement plan benefits) that are substantially comparablefuture liability. All such plans, in agreements, programs, policies and arrangements shall be collectively referred to as the aggregate, to those provided to the Continuing Employees immediately prior to the Closing“Plans”.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with With respect to each applicable employee benefit plan sponsored Plan, the Company has delivered to Acquiror or maintained by Parent made available a current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and, to the extent applicable: (i) any related trust agreement or other funding instrument; (ii) the Surviving Company (the “Parent Plans”)most recent determination letter, if anyapplicable; (iii) any summary plan description, for purposes of determining eligibility to participate, vesting, entitlement to benefits plan prospectus and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with other material written communications by the Company or any Subsidiary of its Subsidiaries to a significant number of Company Employees concerning the extent of the benefits provided under any Plan not otherwise memorialized in any of the foregoing; (iv) a summary of any proposed amendments or any predecessor entity thereto) shall be treated as service with Parent changes to the same extent recognized by Plans that the Company under a comparable Plan; provided, however, that such service shall not be recognized has committed to make at any time within the extent that such recognition would result in a duplication of benefits. Notwithstanding twelve (12) months immediately following the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan year.
(d) The provisions of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.date hereof and
Appears in 2 contracts
Samples: Merger Agreement (Schwab Charles Corp), Merger Agreement (optionsXpress Holdings, Inc.)
Employees; Employee Benefit Plans. (a) During As of or before the 12-month period Closing Date, Buyer or one or more of its Affiliates shall offer employment to each Employee who (i) is not then on authorized leave of absence, sick leave, short or long term disability leave, military leave or layoff with recall rights (“Active Employees”) or (ii) is then on authorized leave of absence, sick leave, short or long term disability leave, military leave or layoff with recall rights; provided that such offer is contingent on such Employee returning to active employment immediately following such absence and within six (6) months of the Effective Time Closing Date, or such later date as required under applicable Laws (“Inactive Employees”). For the purposes hereof, all Active Employees and Inactive Employees who accept an offer of employment from Buyer and commence employment on the applicable Employment Commencement Date are hereinafter referred to collectively as the “Protection Period”), Parent Transferred Employees,” and the “Employment Commencement Date” as referred to herein shall or shall cause the Surviving Company mean (x) as to provide to the Company those Transferred Employees who are employees Active Employees, the Closing Date, and (y) as to those Transferred Employees who are Inactive Employees, the date on which the Transferred Employee begins active employment with Buyer or any of its Affiliates. Buyer shall employ at-will those Transferred Employees who do not have Employment Agreements with Seller or Tribune, as applicable, and shall provide each Transferred Employee initially and for at least one (1) year after the Closing Date or, if shorter, the period of employment following the Closing Date of the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a SubsidiaryTransferred Employee, (i) the base salary or wages and other base cash incentive compensation opportunities that are no less favorable, in each instance, to those was provided to the Continuing such Transferred Employees immediately prior to the Closing and Date, (ii) employee benefits cash incentive compensation opportunities (other than any defined benefit pension benefits including short-term annual incentive compensation but excluding equity or supplemental executive retirement plan benefitsequity-based compensation) that are substantially comparable, no less favorable in the aggregate, to those aggregate than the aggregate total cash incentive compensation opportunities provided to the Continuing Employees such Transferred Employee (but excluding equity or equity-based compensation opportunities) immediately prior to the Closing.
, (biii) During severance and other termination pay and benefits that are no less favorable than the Protection Period, Parent shall or shall cause the Surviving Company severance and other termination pay and benefits that were applicable to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, such Transferred Employee immediately prior to the Effective TimeClosing Date and (iv) other employee benefits that are substantially similar in the aggregate to those provided to similarly situated employees of Buyer or its Affiliates. The initial terms and conditions of employment for those Transferred Employees who have Employment Agreements with Seller, including but not limited to the MoneyGram Payment SystemsTribune or their Affiliates, Inc. Severance Plan as in effect applicable, shall be as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vestingsuch Employment Agreements, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoingwhich shall, to the extent permitted under the applicable lawagreements, Parent be assigned to and assumed by Buyer or one or more of its Affiliates, as directed by Buyer. Notwithstanding the foregoing, Buyer shall not cause to be required to provide credit for such service for benefit accrual purposes under maintained through December 31 of the year in which the Closing Date occurs any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan Station-level annual (or other plan that is no longer open to new participants). Such service also shall apply for purposes short-term) cash incentive award programs based solely on individual performance or performance of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods applicable Station covering the Transferred Employees substantially in the form as in effect immediately prior to the same extent waived under Closing Date. Notwithstanding the applicable Plan. The Continuing foregoing, the compensation and benefits for Transferred Employees who are covered by a collective bargaining agreement shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid provided in accordance with the applicable collective bargaining agreement as amended, extended or terminated from time to time in accordance with its terms and conditions of the Parent Plan during the applicable plan yearLaw.
(d) The provisions of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Tegna Inc), Asset Purchase Agreement (Nexstar Media Group, Inc.)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to, (i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”)) full credit for purposes of eligibility, while such Continuing Employees remain employed vesting and benefit accruals under any employee benefit plans or arrangements maintained by the Company or a SubsidiaryParent, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a any Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (collectively, the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company and its Subsidiaries; (ii) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan that is a comparable Planwelfare benefit plan that such employees may be eligible to participate in after the Effective Time; (iii) provide credit under any such welfare plan for any co-payments, deductibles and out-of-pocket expenditures for the remainder of the coverage period during which any transfer of coverage occurs; provided, however, that no such service shall not be recognized to the extent that such recognition would result in a the duplication of benefits. Notwithstanding ; and (iv) honor in accordance with their terms all employee benefit plans or arrangements maintained by the foregoing, Company immediately prior to the extent permitted under applicable lawEffective Time.
(b) As soon as administratively practicable after the Effective Time but no later than December 31, 2006, and subject to the immediately following sentence, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirementsshall, or shall cause the application Surviving Company and its Subsidiaries to, provide to the Continuing Employees compensation and benefit arrangements that are no less favorable in the aggregate than the compensation and benefit arrangements that are provided to similarly situated employees of Parent. As soon as practicable after the Effective Time, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, cause the Continuing Employees to commence participation in such Parent Plans as are provided to similarly situated employees of Parent. From and after the Effective Time, Parent and the Surviving Company shall keep in full force and effect, and comply with the terms and conditions of, any pre-existing condition limitations with respect agreement in effect as of the date of this Agreement between or among the Company or any of its Subsidiaries and any of its or their employees relating to severance pay or similar benefits.
(c) The provisions of this Section 8.6 are for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to Person (including for the same extent waived under the applicable Plan. The avoidance of doubt any Continuing Employees shall be given credit for amounts paid under a corresponding Plan Employees, present or former employees or directors, consultants or independent contractors of the Company or any Subsidiary during of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the same period Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for purposes in this Section 8.6) under or by reason of applying deductiblesany provision of this Agreement. Nothing contained in this Section 8.6 or elsewhere in the Agreement shall be construed to prevent, co-payments from and out-of-pocket maximums as though such amounts had been paid after the Effective Time, the termination of employment of any individual Continuing Employee or, subject to the provisions of Section 8.6(a), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular Plan in accordance with the terms and conditions of the Parent Plan during the applicable plan yearits terms.
(d) The provisions of this Section 5.6 are solely for Company shall, prior to the benefit of Effective Time, take all requisite action necessary to terminate the parties hereto Company’s 401(k) Savings and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remediesInvestment Plan, including any right notifying the participants that the 401(k) Savings and Investment Plan has been terminated; provided, that immediately following the Effective Time all Continuing Employees are permitted to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing participate in this Section 5.6, express or implied, shall be deemed an amendment of any Parent’s 401(k) Savings and Investment Plan.
Appears in 2 contracts
Samples: Merger Agreement (American Medical Systems Holdings Inc), Merger Agreement (American Medical Systems Holdings Inc)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to, (i) give those employees who are, as of the Acceleration Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”)) full credit for all purposes, while such Continuing Employees remain employed including eligibility, vesting, and benefit accruals under any employee benefit plans or arrangements maintained by the Company or a SubsidiaryParent, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a any Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (collectively, the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Planand its Subsidiaries; provided, however, that no such service shall not be recognized to the extent that such (x) recognition would result in a the duplication of benefits. Notwithstanding the foregoingbenefits or (y) service would not otherwise be recognized by Parent or any Subsidiary of Parent with respect to its own similarly situated employees; (ii) waive, or cause to be waived, all limitations as to preexisting conditions, exclusions, actively-at-work requirements and waiting periods with respect to participation and coverage requirements applicable to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes Continuing Employees under any employee benefit plan or arrangement of Parent Plan that is a welfare benefit plan in which such employees may be eligible to participate after the Acceleration Time; and (iii) provide credit under any such welfare plan for any co-payments, deductibles and similar expenditures for the remainder of the coverage period during which any transfer of coverage occurs.
(b) From the Acceleration Time until the first anniversary thereof, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, provide to each Continuing Employee, compensation and benefit arrangements (excluding equity-based compensation and defined benefit pension benefits) that are comparable in the aggregate to the compensation and benefit arrangements to which such Continuing Employee was entitled immediately prior to the Acceleration Time. Without limiting the foregoing or the terms of any other agreement, from and after the Acceleration Time, Parent shall, and shall cause the Surviving Company and its Subsidiaries to, honor in accordance with its terms until all obligations thereunder have been satisfied, each plan, postretirement welfare plan agreement or grandfathered plan (arrangement in effect as of the Merger Closing Date between or other plan that is no longer open among the Company or any of its Subsidiaries and any of its or their current or former employees relating to new participants). Such service also shall apply for purposes of satisfying any waiting periodsseverance, evidence of insurability requirementschange in control, retention, termination pay or the application of any pre-existing condition limitations similar benefits, including with respect to any Parent Plan. Each Parent Plan payments, benefits or rights arising as a result of the transactions contemplated by this Agreement (either alone or in conjunction with any other event).
(c) This Section 8.4 shall waive pre-existing condition limitations be binding upon and eligibility waiting periods shall inure solely to the same extent waived under benefit of each of the applicable Plan. The Continuing Employees shall be given credit Parties, and nothing in this Section 8.4, express or implied, is intended to confer upon any other Person (including for amounts paid under a corresponding Plan the avoidance of doubt any current or former directors, officers, employees, contractors or consultants of any of the Company or any Subsidiary during of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the same period for purposes Effective Time, the Surviving Company or any of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions its Subsidiaries) any rights or remedies of the Parent Plan during the applicable plan year.
(d) The provisions any nature whatsoever under or by reason of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express 8.4 or impliedis intended to be, shall confer upon any Continuing Employee, constitute or legal representative be construed as an amendment to or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits modification of any nature employee benefit plan, program, policy, agreement or kind whatsoever under this Agreement. Nothing in this Section 5.6arrangement of Parent, express the Company, the Surviving Company or implied, shall be deemed an amendment of any Planrespective Subsidiary thereof.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During Seller has delivered to Buyer a list of the 12Available Employees that includes, with respect to each Available Employee, his or her name, job title, date of hire or re-month period following the Effective Time hire (as applicable), employer, location, annualized base salary or hourly base wage, exempt or non-exempt status, incentive compensation opportunity, and leave of absence status and expected return date (if applicable) (the “Protection PeriodEmployee List”), Parent shall or shall cause the Surviving . The Company to provide does not have any employees. Each Available Employee provides services primarily to the Company Employees who are employees or primarily in respect of the Company Acquired Business, and no other employee of Seller or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided its Affiliates provides services primarily to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the ClosingCompany.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary Section 3.19(b) of the CompanySeller Disclosure Schedule contains a list of each material Benefit Plan that is sponsored, on maintained, contributed to or required to be maintained or contributed to by Seller or any of its Affiliates for the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as benefit of the Effective Time Available Employees or their dependents (collectively, the “Company Severance PlanSeller Benefit Plans”). Parent shall or shall cause the Surviving Company True and correct summaries of each Seller Benefit Plan have been made available to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection PeriodBuyer.
(c) For all purposes (including for purposes of vestingThe Company does not maintain, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”)sponsor, if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect contribute to any Parent Benefit Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan year.
(d) The provisions Each Seller Benefit Plan that is intended to meet the requirements of this a “qualified plan” under Section 5.6 are solely for the benefit 401(a) of the parties hereto Code, and nothing in this Section 5.6, express or implied, shall confer upon from which Buyer may accept rollover contributions with respect to any Continuing Employee, has received a current favorable determination letter or legal representative may rely on an opinion or beneficiary thereofadvisory letter from the United States Internal Revenue Service, which letter has been provided to Buyer. To Seller’s knowledge, nothing has occurred with respect to each such Seller Benefit Plan that would adversely affect its qualified status.
(e) Except for obligations that are retained by Seller under this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in combination with another event, (i) result in any rights compensation becoming due to any Available Employee or remediesany former employee who provided services to the Company, (ii) increase the payments or benefits payable under any Seller Benefit Plan, (iii) result in the acceleration of the time of payment, funding, or vesting of any payments or benefits under any Seller Benefit Plan, (iv) result in the forfeiture of compensation or benefits under any Seller Benefit Plan or (v) result in the Company being required to make a compensatory payment to any current or former employee of the Company. Except as set forth on Section 3.19(e) of the Seller Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in combination with another event, result in any payment or benefit constituting an “excess parachute payment” within the meaning of Section 280G of the Code. The Company has no obligation to provide any gross up, indemnification, reimbursement, or other payment for any excise or additional Taxes, interest, or penalties incurred pursuant to Section 409A or Section 4999 of the Code. There are no Controlled Group Liabilities that would be, or would reasonably be expected to become, liabilities of Buyer or any of its Affiliates (including the Company) following the Closing Date. Neither Seller nor any ERISA Affiliate of Seller or the Company sponsors, maintains, contributes to, or has any liability with respect to a Benefit Plan that is subject to Section 302 or Title IV of ERISA or Section 412 of the Code.
(f) Except as set forth in Section 3.18 and Section 3.19, no representations or warranties are being made by Seller with respect to employee or benefits matters, including any right to employment such matters arising under ERISA or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Planthe Code.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (NGL Energy Partners LP)
Employees; Employee Benefit Plans. (a) During Except as set forth on Disclosure Schedule 4.12(a), as of the 12date hereof, neither TTA nor any of its subsidiaries is a party to or bound by any contract, arrangement or understanding (whether written or oral) with respect to the employment or compensation of any officers, employees or consultants and except as provided herein, and under those Benefit Plans (as defined below) set forth on Disclosure Schedule 4.12(a), consummation of the transactions contemplated by this Agreement will not (either alone or upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from TTA or any of its subsidiaries to any officer or employee thereof. TTA has previously delivered or made available to Arcada true and complete copies of all employment, consulting and deferred compensation agreements that are in writing, to which TTA or any of its subsidiaries is a party.
(b) Except as set forth on Disclosure Schedule 4.12(b), as of the date hereof, no officer or employee of TTA or any of its subsidiaries is receiving aggregate remuneration bonus, salary and commissions) at a rate which, if annualized, would exceed $40,000 in 1996.
(c) Except as disclosed on Disclosure Schedule 4.12(c), as of the date hereof, there are not, and have not been at any time in the past three years, any actions, suits, claims or proceedings before any court (which have been served on TTA or any of its subsidiaries), commission, bureau, regulatory, administrative or governmental agency, arbitrator, body or authority pending or, to the best of TTA's knowledge, threatened by any employees, former employees or other persons relating to the employment practices or activities of TTA or its subsidiaries (except for threatened actions which have subsequently been resolved). Neither TTA nor any of its subsidiaries is a party to any collective bargaining agreement, and no union organization efforts are pending or, to the best of TTA's knowledge, threatened nor have any occurred during the last three years.
(d) TTA has made available to Arcada true and complete copies of all personnel codes, practices, procedures, policies, manuals, affirmative action programs and similar materials.
(e) With respect to all employee benefit plans, TTA represents and warrants as follows:
(i) All employee benefit plans, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and any other pension, bonus, deferred compensation, stock bonus, stock purchase, post-month period following retirement medical, hospitalization, health and other employee benefit plan, program or arrangement, whether formal or informal, under which TTA or any of its subsidiaries has any obligation or liability, or under which any employee or former employee has any rights to benefits or any 'cafeteria plans,' as described in Section 125 of the Internal Revenue Code of 1986, as amended (the "Code") (together, the "Benefit Plans") are set forth on Disclosure Schedule 4.12(e)(i). Except as set forth on Disclosure Schedule 4.12(e)(i), none of the Benefit Plans is subject to Title IV of ERISA, is a 'multiemployer plan,' as such term is defined in Section 3(37) and 4001(a)(3) of ERISA and Section 414(f) of the Code, or is subject to the funding requirements of Section 412 of the Code or Title I, Subtitle B, Part 3 of ERISA.
(ii) In all material respects, except as discussed on Disclosure Schedule 4.12(e)(ii), the terms of the Benefit Plans are, and the Benefit Plans have been administered, in accordance with the requirements of ERISA, the Code, applicable law and the respective plan documents. Except as disclosed on Disclosure Schedule 4.12(e)(ii), none of the Benefit Plans is under audit or is the subject of an investigation by the Internal Revenue Service, the U.S. Department of Labor or any other federal or state governmental agency. Except as disclosed on Disclosure Schedule 4.12(e)(ii), all material reports and information required to be filed with, or provided to, the United States Department of Labor, Internal Revenue Service, the Pension Benefit Guaranty Corporation (the "PBGC") and plan participants and beneficiaries with respect to each Benefit Plan have been timely filed or provided. With respect to each Benefit Plan for which an annual report has been filed, no material change has occurred with respect to the matters covered by the most recent annual report since the date thereof.
(iii) TTA is not aware of any facts regarding any Benefit Plan which is an 'employee pension benefit plan' as defined in Section 3(2) of ERISA (collectively, the "Employee Pension Benefit Plans") that would present a significant risk that any Employee Pension Benefit Plan would not be determined by the appropriate District Director of the Internal Revenue Service to be 'qualified' within the meaning of Section 401(a) of the Code, or with respect to which any trust maintained pursuant thereto is not exempt from federal income taxation pursuant to Section 501 of the Code, or with respect to which a favorable determination letter could not be issued by the Internal Revenue Service with respect to each such Employee Pension Benefit Plan.
(iv) Prior to the Closing, TTA shall deliver or make available to Arcada complete and correct copies (if any) of (w) the most recent Internal Revenue Service determination letter relating to each Employee Pension Benefit Plan intended to be tax qualified under Section 401(a) and 501(a) of the Code, (x) the most recent annual report (Form 5500 Series) and accompanying schedules of each Benefit Plan, filed with the Internal Revenue Service or an explanation of why such annual report is not required, (y) the most current summary plan description for each Benefit Plan, and (z) the most recent audited financial statements of each Benefit Plan.
(v) With respect to each Benefit Plan, all contributions, premiums or other payments due or required to be made to such plans as of the Effective Time (the “Protection Period”), Parent shall have been or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company will be made or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately accrued prior to the Closing Effective Time.
(vi) To the best of TTA's knowledge, there are not now, nor have there been, any 'prohibited transactions', as such term is defined in Section 4975 of the Code or Section 406 of ERISA, involving TTA or any of its subsidiaries, or any officer, director or employee of TTA or any of its subsidiaries, with respect to the Benefit Plans that could subject TTA or any other party-in-interest to the penalty or tax imposed under Section 502(i) of ERISA and Section 4975 of the Code.
(iivii) employee benefits As of the date hereof, no claim, lawsuit, arbitration or other action has been instituted, asserted (other than and no such lawsuit has been served on TTA or any defined benefit pension benefits or supplemental executive retirement plan benefitsof its subsidiaries) that are substantially comparable, in the aggregateor, to those provided the best of TTA's knowledge, threatened by or on behalf of such Benefit Plan or by any employee alleging a breach or breaches of fiduciary duty or violations of other applicable state or federal law with respect to such Benefit Plans, which could result in liability on the Continuing Employees immediately prior to part of TTA or any of its subsidiaries or a Benefit Plan under ERISA or any other law, nor is there any known basis for successful prosecution of such a claim, and Arcada will be notified promptly in writing of any such threatened or pending claim arising between the date hereof and the Closing.
(bviii) During Except as may be required by the Protection PeriodConsolidated Omnibus Budget and Reconciliation Act of 1985, Parent shall as amended ("COBRA"), no Benefit Plan which is an employee welfare benefit plan (within the meaning of Section 3(1) of ERISA) provides for continuing benefits or shall cause the Surviving Company to assume and honor the Company’s and coverage for any participant or beneficiary of a participant after such participant's termination of employment nor does TTA or any of its Subsidiaries’ obligations subsidiaries have any current or projected liability under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Periodsuch plans.
(cix) For all purposes (including for purposes Neither TTA nor any of vestingits subsidiaries has maintained or contributed to, eligibility to participate and level of benefits does not currently maintain or contribute to, any severance pay plan. All payments (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits regular wages and vacation entitlement pay) made to employees of TTA or any of its subsidiaries coincident with or in connection with termination of employment since January 1, 1994 are disclosed on Disclosure Schedule 4.12(e)(ix).
(but not for accrual x) No individual will accrue or receive any additional benefits, service, or accelerated rights to payment or vesting of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Benefit Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect otherwise obtain rights to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan 'parachute payment,' as defined in Section 280G(b)(2) of the Company or any Subsidiary during the same period for purposes of applying deductiblesCode, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions a result of the Parent Plan during the applicable plan yeartransactions contemplated by this Agreement.
(dxi) The provisions TTA and each of this Section 5.6 are solely for the benefit its subsidiaries has complied in all material respects with all of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits requirements of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any PlanCOBRA.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to, give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”)) full credit for all purposes, while such Continuing Employees remain employed including eligibility, vesting and benefit accruals under any employee benefit plans or arrangements maintained by the Company or a SubsidiaryParent, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a any Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (collectively, the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Planand its Subsidiaries as of the Closing Date; provided, however, that no such service shall not be recognized to the extent that such recognition would result in a the duplication of benefits. Notwithstanding Parent shall, or shall cause the foregoingSurviving Company and its Subsidiaries to use commercially reasonable efforts to, (x) waive, or cause to be waived, all limitations as to preexisting conditions, exclusions, actively-at-work requirements and waiting periods with respect to participation and coverage requirements applicable to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes Continuing Employees under any employee benefit plan or arrangement of Parent Plan that is a defined welfare benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open in which such employees may be eligible to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or participate after the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods Effective Time to the same extent as such conditions, exclusions, requirements and periods were waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Company Benefit Plan or were not applicable to a corresponding Company Benefit Plan; and (y) provide credit under any such welfare plan for any co-payments, deductibles and similar expenditures made or incurred in the period prior to the Effective Time for the plan year in which the Effective Time occurs.
(b) From the Effective Time until the first anniversary thereof, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, provide to each Continuing Employee compensation and benefit arrangements (other than equity-based awards) that are either (i) substantially similar to the compensation and benefit arrangements to which such Continuing Employee was entitled immediately prior to the Effective Time or (ii) substantially similar to the compensation and benefit arrangements to which Parent’s similarly situated employees are entitled, whichever is more favorable to such Continuing Employee. Without limiting the foregoing and the terms of any other agreement, from and after the Effective Time, Parent and the Surviving Company shall keep in full force and effect through the first anniversary of the Effective Time or, if later, until all obligations thereunder have been satisfied in accordance with the terms of such plan, agreement or arrangement, each plan, agreement or arrangement in effect as of the date of this Agreement and set forth in Section 7.4(b) of the Company Disclosure Letter between or among the Company or any of its Subsidiaries and any of its or their current or former employees; provided that nothing herein shall prohibit, any amendment or termination of such agreements in accordance with their terms or applicable Law.
(c) This Section 7.4 shall be binding upon and shall inure solely to the benefit of each of the Parties, and nothing in this Section 7.4, express or implied, is intended to confer upon any other Person (including for the avoidance of doubt any current or former directors, officers, employees, contractors or consultants of any of the Company or any Subsidiary during of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the same period for purposes Effective Time, the Surviving Corporation or any of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions its Subsidiaries) any rights or remedies of the Parent Plan during the applicable plan year.
(d) The provisions any nature whatsoever under or by reason of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express 7.4 or impliedis intended to be, shall confer upon constitute or be construed as (i) prohibiting the Surviving Corporation or any Continuing Employeeof its Subsidiaries from amending or terminating any Company Benefit Plan, or legal representative (ii) establishing, amending or beneficiary modifying any employee benefit plan, program, policy, agreement or arrangement of Parent, the Company, the Surviving Corporation or any respective Subsidiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.
Appears in 1 contract
Samples: Merger Agreement (Par Pharmaceutical Companies, Inc.)
Employees; Employee Benefit Plans. (a) During Except as otherwise required by applicable Law, after the 12-month Closing Date, the Company shall have no obligation to continue the employment or retain the services of any Employee for any period of time following the Effective Time (Closing Date. Buyer shall be entitled to modify any compensation or benefits provided to any Employee and any other terms or conditions of employment with any Employee in its sole discretion. Notwithstanding the “Protection Period”)foregoing, Parent shall or shall cause Buyer intends that as of the Surviving Company to provide to Closing Date the Company will provide Employees who are with health and welfare benefits similar to those benefits that Buyer provides to its similarly situated employees as of the Company date hereof. Nothing contained in this Agreement shall be construed as an offer of employment or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages contract between Buyer and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the ClosingEmployee.
(b) During Without limiting the Protection Periodscope of this Section 7.1, Parent shall or Buyer shall cause the Surviving Company to assume arrange for each Employee (and honor his or her “eligible dependents,” as defined in the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between Employee Benefit Plans) to be covered immediately following the Company or Closing Date by a Subsidiary group health plan that provides health benefits (within the meaning of Section 5000(b)(1) of the Company, Code) that (i) does not limit or exclude coverage on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application basis of any pre-existing condition limitations with respect to of any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived Employees or their dependents (other than any limitation already in effect under the applicable Plan. The Continuing Employees shall be given credit Company’s group health plan), and (ii) provide each Employee full credit, for amounts paid the year during which the Closing occurs, for any deductible already incurred by the Employee under a corresponding Plan of the Company or Company’s group health plan and for any Subsidiary during the same period for purposes of applying deductibles, co-payments and other out-of-pocket maximums as though such amounts had been paid expenses that count against any maximum or minimum out-of-pocket expense provision of the Company’s group health plan or medical plan.
(c) Buyer shall cause the Company to make any filings and shall deliver any notices required in accordance connection with the terms and conditions Contemplated Transactions under the WARN Act, or any similar state or local law so that the Company shall have no Liability under the WARN Act or any similar state or local Law as a result of the Parent Plan during Contemplated Transactions. Buyer shall be solely responsible for any Liability under the applicable plan yearWARN Act or any similar state or local Law, to any employee of the Company who is found to have suffered an “employment loss” under the WARN Act after the Closing, and any and all other Liabilities arising out of or resulting from any such employment loss or Buyer’s failure to cause the Company to employ such employees, serve sufficient notice, or provide pay in lieu of notice pursuant to the WARN Act or any similar state or local Law. Subject to the limitations set forth in Section 10.5, Sellers shall be solely responsible for any Liability under the WARN Act or any similar state or local Law, to any employee of the Company who is found to have suffered an “employment loss” under the WARN Act before the Closing, and any and all other Liabilities arising out of or resulting from any such employment loss prior to the Closing or Sellers’ failure prior to the Closing to cause the Company to employ such employees, serve sufficient notice, or provide pay in lieu of notice pursuant to the WARN Act or any similar state or local Law.
(d) The provisions Nothing in this Section 7.1 is intended to, and shall not be construed to, create any third party beneficiary rights of any kind or nature, including, without limitation, the right of any Employee or other individual to seek to enforce any provision of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express 7.1 or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified periodcompensation, benefits, or compensation any other right or benefits privilege of any nature employment with the Company or kind whatsoever under this AgreementBuyer. Nothing in this Section 5.6, express or implied, 7.1 shall be deemed construed or interpreted to be an amendment of to any Employee Benefit Plan.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to, (i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its -61- Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while full credit for purposes of determining eligibility and vesting (but not for purposes of any benefit accruals) under any Parent Benefit Plans or other arrangements maintained by Parent, including, but not limited to, vacation and paid time off accruals (other than any defined benefit or equity-based plans) (collectively, the “Parent Plans”) for such Continuing Employees remain employed Employees’ service with the Company or any of its Subsidiaries (or any predecessor entity) to the same extent recognized by the Company and its Subsidiaries; (ii) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan that is a welfare benefit plan that such employees may be eligible to participate in after the Effective Time to the same extent waived by the Company and its Subsidiaries or otherwise not subject to a Subsidiarylimitation by the Company and its Subsidiaries; (iii) provide credit under any such welfare plan for any co-payments, deductibles and out-of-pocket expenditures for the remainder of the coverage period during which any transfer of coverage of any Continuing Employee occurs; and (iiv) base salary honor in accordance with their terms all Company Benefit Plans or wages arrangements or collective bargaining agreements maintained by the Company immediately prior to the Effective Time.
(b) From a period of one (1) year from and cash incentive after the Effective Time, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, provide to the Continuing Employees levels of compensation opportunities and benefit arrangements that are no less favorable, favorable in each instance, to those the aggregate than either the (i) levels of compensation and benefits provided to the Continuing Employees immediately prior to the Closing and Effective Time or (ii) employee benefits (other than any defined the levels of compensation and benefit pension benefits or supplemental executive retirement plan benefits) arrangements that are substantially comparable, in the aggregate, to those provided to similarly situated employees of Parent; provided, however, that Parent’s health insurance plan shall continue in full force and effect through and including the Continuing Employees immediately prior to date that is ninety (90) days from the Closing.
(b) During the Protection PeriodEffective Time. Parent shall, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employmentSubsidiaries to, severancecause the Continuing Employees to commence participation in such Parent Benefit Plans as are provided to similarly situated employees of Parent, and bonus agreements, if any, between provided that such participation shall be subject to the Company terms of any collective bargaining agreement or a Subsidiary of the Company, on the one hand, and a similar contract covering any Continuing Employee, on the other hand, immediately prior to . From and after the Effective Time, including but not limited to Parent and the MoneyGram Payment SystemsSurviving Company shall keep in full force and effect, Inc. Severance Plan as and comply with the terms and conditions of, any employment, severance or change of control agreement (including, without limitation, any such agreements in the form of offer letters) in effect as of the Effective Time (date of this Agreement or entered into or amended after the “Company Severance Plan”). Parent shall date of this Agreement in compliance with Section 6.2 hereof between or shall cause the Surviving Company to provide the severance payments and benefits set forth in among the Company Severance Plan to or any Continuing Employees who are terminated during the Protection Period of its Subsidiaries and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Periodany of its or their employees.
(c) For all purposes (including for purposes of vesting, eligibility to participate The Company and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by its Subsidiaries and Parent or and its Subsidiaries hereby acknowledge that the Surviving Company (the Merger will constitute a “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary Change in Control” (or any predecessor entity theretoconcept of similar import) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearBenefit Plans.
(d) The provisions of this Section 5.6 7.8 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters -62- provided for in this Section 5.6, express 7.8) under or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits by reason of any nature or kind whatsoever under provision of this Agreement. Nothing contained in this Section 5.6, express 7.8 or implied, elsewhere in the Agreement shall be deemed an amendment construed to prevent, from and after the Effective Time, the termination of employment of any Planindividual Continuing Employee or, subject to the provisions of Sections 7.8(a) and 7.8(b), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular plan in accordance with its terms.
Appears in 1 contract
Samples: Merger Agreement (Glowpoint, Inc.)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to, (i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”)) full credit for purposes of eligibility, while such Continuing Employees remain employed vesting and calculation of severance or vacation benefits, if applicable, under any employee benefit plans or arrangements maintained by the Company or a SubsidiaryParent, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a any Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (collectively, the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company and its Subsidiaries, and (ii) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan that is a comparable Planwelfare benefit plan that such employees may be eligible to participate in after the Effective Time to the extent such limitations did not apply to such employees at the Effective Time, and (iii) provide credit under any such welfare plan for any co-payments, deductibles and out-of-pocket expenditures for the remainder of the coverage period during which any transfer of coverage occurs; provided, however, that no such service shall not be recognized to the extent that such recognition would result in a the duplication of benefits. Notwithstanding .
(b) For a period of one year from and after the foregoingEffective Time, and subject to the extent permitted under applicable lawlast sentence of this Section 7.5(b), Parent shall, or shall not be required cause the Surviving Company and its Subsidiaries to, provide to provide credit for the Continuing Employees base salary or wages and annual incentive compensation opportunities, and benefit arrangements that are substantially comparable in the aggregate to such service for Continuing Employees compensation and benefit accrual purposes under arrangements (excluding any employee benefit plan retention or arrangement change in control compensation or benefits) as of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants)the date hereof. Such service also shall apply for For purposes of satisfying any waiting periodsthe preceding sentence, evidence of insurability requirementsall restricted stock, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations stock options, stock purchase and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees similar awards shall be given credit for amounts paid under a corresponding Plan of disregarded. From and after the Effective Time, Parent and the Surviving Company or any Subsidiary during the same period for purposes of applying deductiblesshall keep in full force and effect, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance comply with the terms and conditions of, any agreement in effect as of the Parent Plan during date of this Agreement between or among the applicable plan yearCompany or any of its Subsidiaries and any of its or their employees relating to severance pay or similar benefits.
(dc) The provisions of this Section 5.6 7.5 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.6, express 7.5) under or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits by reason of any nature or kind whatsoever under provision of this Agreement. Nothing contained in this Section 5.6, express 7.5 or implied, elsewhere in the Agreement shall be deemed an amendment construed to prevent, from and after the Effective Time, the termination of employment of any Planindividual Continuing Employee or, subject to the provisions of Section 7.5(a), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular Company Plan in accordance with its terms.
Appears in 1 contract
Samples: Merger Agreement (Ivillage Inc)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to, (i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”)) full credit for purposes of determining eligibility and vesting (but not for purposes of any benefit accruals) under any Parent Benefit Plans or other arrangements maintained by Parent, while such Continuing Employees remain employed by including, but not limited to, vacation and paid time off accruals, the Surviving Company or a Subsidiary, (i) base salary any Subsidiary of Parent or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits Surviving Company (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)plans) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (collectively, the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Planand its Subsidiaries; provided(ii) waive all limitations as to preexisting conditions, however, that such service shall not be recognized exclusions and waiting periods with respect to participation and coverage requirements applicable to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes Continuing Employees under any employee benefit plan or arrangement of Parent Plan that is a defined welfare benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open such employees may be eligible to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or participate in after the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods Effective Time to the same extent waived by the Company and its Subsidiaries or otherwise not subject to a limitation by the Company and its Subsidiaries; (iii) provide credit under any such welfare plan for any co-payments, deductibles and out‑of‑pocket expenditures for the applicable Plan. The remainder of the coverage period during which any transfer of coverage of any Continuing Employee occurs; and (iv) honor in accordance with their terms all employee benefit plans or arrangements or collective bargaining agreements maintained by the Company immediately prior to the Effective Time.
(b) From a period of one (1) year from and after the Effective Time, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, provide to the Continuing Employees levels of compensation and benefit arrangements that are no less favorable in the aggregate than either the (i) levels of compensation and benefits provided to the continuing employees immediately prior to the Effective Time or (ii) the levels of compensation and benefit arrangements that are provided to similarly situated employees of Parent. By no later than January 1, 2019, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, cause the Continuing Employees to commence participation in such Parent Plans as are provided to similarly situated employees of Parent, provided that such participation shall be given credit for amounts paid under a corresponding Plan subject to the terms of any collective bargaining agreement or similar contract covering any Continued Employee. From and after the Effective Time, Parent and the Surviving Company or any Subsidiary during the same period for purposes of applying deductiblesshall keep in full force and effect, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance comply with the terms and conditions of, any employment, severance or change of control agreement (including, without limitation, any such agreements in the form of offer letters) in effect as of the date of this Agreement or entered into or amended after the date of this Agreement as approved by Parent Plan during in compliance with Section 6.2 hereof between or among the applicable plan yearCompany or any of its Subsidiaries and any of its or their employees.
(dc) The provisions of this Section 5.6 7.5 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.6, express 7.5) under or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits by reason of any nature or kind whatsoever under provision of this Agreement. Nothing contained in this Section 5.6, express 7.5 or implied, elsewhere in the Agreement shall be deemed an amendment construed to prevent, from and after the Effective Time, the termination of employment of any Planindividual Continuing Employee or, subject to the provisions of Sections 7.5(a) and 7.5(b), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular Plan in accordance with its terms.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period As of or as soon as practicable following the Effective Time Time, the employees of SIB and its Subsidiaries (the “Protection Period”), Parent "SIB Employees") shall or shall cause the Surviving Company to provide to the Company Employees who are become employees of the Company ICBC or a Subsidiary thereof and shall be eligible to participate in the ICBC Plans in which similarly situated employees of ICBC or Independence Bank participate, to the Company same extent as similarly situated employees of ICBC or Independence Bank (it being understood that inclusion of SIB Employees in such employee benefit plans may occur at the Effective Time (such Company Employeesdifferent times with respect to different plans); provided, “Continuing Employees”)however, while such Continuing Employees remain employed by the Company or a Subsidiary, that (i) base salary nothing contained herein shall require ICBC or wages any of its Subsidiaries to make any grants to any SIB Employee under the ICBC Stock Option Plans or the ICBC 1998 Recognition and cash incentive compensation opportunities Retention Plan and Trust Agreement, it being understood that any such grants are no less favorablecompletely discretionary, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits nothing contained herein shall require ICBC or any of its Subsidiaries to permit a SIB Employee who is receiving severance as a result of the transactions contemplated by this Agreement pursuant to any employment, severance, consulting or other compensation agreements, plans and arrangements with SIB or any of its Subsidiaries to participate in any severance or change in control of agreement or plan offered by ICBC or any of its Subsidiaries, (other than any iii) nothing contained herein shall require an SIB Employee's participation in the ICBC defined benefit pension benefits or supplemental executive retirement plan benefitsand (iv) that are substantially comparable, nothing contained herein shall require an SIB Employee's participation in the aggregate, to those provided to the Continuing Employees immediately ICBC Employee Stock Ownership Plan prior to the ClosingJanuary 1, 2005.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with With respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if anyICBC Plan, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for participation or accrual of benefits under any the ICBC defined benefit pension plan or post-retirement welfare benefit plan), service with the Company SIB or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable PlanICBC; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent ICBC Plan. Each Parent ICBC Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable SIB Plan. The Continuing SIB Employees shall be given full credit for amounts paid under a corresponding Plan of the Company SIB or any Subsidiary benefit plan during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent ICBC Plan during the applicable plan year.
(c) As of the Effective Time, ICBC shall assume and honor and shall cause the appropriate Subsidiaries of ICBC to assume and honor in accordance with their terms all employment, severance and other compensation agreements, plans and arrangements existing immediately prior to the execution of this Agreement which are between SIB or any of its Subsidiaries and any officer or employee thereof and which have been disclosed in Section 4.11(a) of the SIB Disclosure Schedule, including without limitation bank-owned life insurance, other than those employment agreements covered by the Termination and Release Agreements referenced in Section 7.7(d) hereof. ICBC acknowledges and agrees that (i) the consummation of the Merger constitutes a "Change in Control" for all purposes pursuant to such agreements, plans and arrangements, and (ii) that the persons listed in Section 7.7(c) of the SIB Disclosure Schedule shall receive severance benefits as of the Effective Time pursuant to the employment and severance agreements entered into by such persons with SIB or its Subsidiaries, to the extent that such employment and severance agreements have been disclosed to ICBC in the SIB Disclosure Schedule and provided that such persons remain employed by SIB or its Subsidiaries as of the Effective Time. To the extent that an officer or employee of SIB or any of its Subsidiaries is entitled to the continued receipt of health insurance, life insurance, automobile allowance or other similar fringe benefits pursuant to any agreement set forth in Section 4.14(c) of the SIB Disclosure Schedule between SIB or any of its Subsidiaries, on the one hand, and any officer or employee of SIB or any of its Subsidiaries, on the other hand (the "Executive Agreements"), and such officer or employee becomes a director, officer, employee or consultant of ICBC or any of its Subsidiaries following the Effective Time and as a result becomes entitled to receive the same fringe benefits in his or her capacity as a director, officer, employee or consultant of ICBC or any of its Subsidiaries, then the fringe benefits provided to such person shall be deemed to be provided in connection with such person's service as a director, officer, employee or consultant of ICBC or any of its Subsidiaries for so long as such person serves in such capacity and shall be in lieu of, and not in addition to (and for the sole purpose to avoid duplication of benefits), the same fringe benefits that would have otherwise been provided pursuant to the Executive Agreement.
(d) Concurrently with the execution of this Agreement by the parties hereto, (i) each of Harry P. Doherty and James R. Coyle and SIB, SIBT and ICBC shall enxxx xxxx x Xxxxxnatiox xxx Xxxxxxx Agreement substantially in the form of Exhibit A hereto, (ii) Mr. Doherty, ICBC and Independence Bank shall enter into an employmxxx xxxxxxxnt substantially in the form of Exhibit B hereto, and (iii) Mr. Coyle, ICBC and Independence Bank shall enter into a noncompetixxxx xxxxement substantially in the form of Exhibit C hereto.
(e) With respect to the SIB Employee Stock Ownership Plan (the "ESOP"), SIB shall:
(i) take any actions necessary to cause the ESOP to be terminated and for the balances in all Participant Accounts (as defined in the ESOP) to become fully vested and nonforfeitable as of the Effective Time;
(ii) cause the Trustee of the ESOP to sell a number of shares of ICBC Common Stock received in the Merger as is necessary to obtain cash at least equal to the remaining ESOP indebtedness;
(iii) cause the Trustee to use such cash to repay in full all such outstanding ESOP indebtedness;
(iv) cause the shares of ICBC Common Stock and/or any cash remaining in the suspense account maintained under the ESOP, after giving effect to the repayment of ESOP indebtedness referred to in subparagraph (iii) above, to be allocated to the accounts of all ESOP participants who have account balances as of the beginning of the ESOP plan year in which the ESOP is terminated, in accordance with the applicable provisions of the ESOP;
(v) cause the account balances of all ESOP participants to be distributed in a lump sum (or transferred in accordance with Section 401(a)(31) of the Code) as soon as practicable following the later of (A) the Effective Time or (B) the date of receipt of a favorable determination letter from the IRS regarding the qualified status of the ESOP upon its termination; and
(vi) adopt amendment(s) to the ESOP, in form and substance reasonably satisfactory to ICBC, as may be requested by the IRS in connection with the request for a determination letter.
(f) As soon as practicable after the date hereof, SIB shall file a request for a determination letter from the IRS regarding the continued qualified status of the ESOP upon its termination. Prior to the Effective Time, SIB and, following the Effective Time, ICBC shall use their respective reasonable best efforts to obtain such favorable determination letter (including, but not limited to, making such changes to the ESOP and the proposed allocation described herein as may be requested by the IRS as a condition to its issuance of a favorable determination letter). Neither SIB nor ICBC shall implement any of the actions described in Sections 7.7(d)(iv) and (v) above until receipt of such favorable determination letter.
(g) As of the Effective Time, each SIB Employee who is a participant in the SIB 401(k) Plan (the "SIB 401(k) Plan") shall become fully vested in his or her employer matching account balance in the SIB 401(k) Plan and the SIB 401(k) Plan will either (x) be merged into the ICBC 401(k) Plan (the "ICBC 401(k) Plan"), effective as of a date following the Effective Time, as selected by ICBC, or (y) if so elected by ICBC, terminated immediately prior to, on or after the Effective Time. The provisions determination as to whether the SIB 401(k) Plan shall be terminated or merged into the ICBC 401(k) Plan shall be made by ICBC. Effective as of the date of the merger of the SIB 401(k) Plan into the ICBC 401(k) Plan, if applicable, or the termination of the SIB 401(k) Plan (or the Effective Time, if subsequent to such termination), if applicable, SIB employees who are then participating in the SIB 401(k) Plan shall become participants in the ICBC 401(k) Plan.
(h) As soon as practicable after the execution of this Agreement, SIB will cooperate to cause the SIB Recognition Plan to be amended (including, without limitation, amending the SIB Recognition Plan to remove any provision that prohibits the termination of such plan prior to awarding all unallocated shares under such plan) and other necessary actions taken, in a manner reasonably acceptable to ICBC, to provide that (i) the SIB Recognition Plan will terminate upon the Effective Time and (ii) all unallocated shares of SIB Common Stock held in the trust under the SIB Recognition Plan will be cancelled upon the Effective Time and all assets relating to such unallocated shares will be distributed to SIB; provided, however, that any distribution of shares under the SIB Recognition Plan shall be effected in accordance with the requirements, if any, of federal and state securities laws and regulations. No action shall be taken that would adversely affect the rights of plan participants who hold outstanding grants or awards of shares of SIB Common Stock, whether before or after the Effective Time. No further grants or awards shall be made by SIB or its Subsidiaries under the SIB Recognition Plan following the date of this Agreement.
(i) ICBC agrees to honor the terms of each of the SIB SERPs which have been disclosed in Section 4.11 of the SIB Disclosure Schedule.
(j) Any person who is serving as an employee of either SIB or any Subsidiary thereof as of the date of this Agreement (other than those employees covered by either a written employment or severance agreement) whose employment is discontinued by ICBC or any of its Subsidiaries within one year after the Effective Time (unless termination of such employment is for Cause (as defined below)) shall be entitled to a severance payment from ICBC or its Subsidiary equal in amount to two week's base pay for each full year such employee was employed by SIB or a SIB Subsidiary or any successor or predecessor thereto, subject to a minimum of two weeks' severance and a maximum of 52 weeks' severance; provided that the benefits payable pursuant to this Section 7.7(j) shall be in lieu of, and not in addition to, any amounts that may have otherwise been payable pursuant to SIB's written severance policy described in Section 4.11(a) of the SIB Disclosure Schedule and subject to the terms and conditions set forth therein. For purposes of this Section 5.6 are solely for the benefit 7.7(j), "Cause" shall mean termination because of the parties hereto and nothing in this Section 5.6employee's personal dishonesty, express incompetence, willful misconduct, breach of fiduciary duty involving personal profit, intentional failure to perform stated duties or impliedwillful violation of any law, shall confer upon any Continuing Employeerule, or legal representative regulation (other than traffic violations or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plansimilar offenses).
Appears in 1 contract
Samples: Merger Agreement (Independence Community Bank Corp)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”), Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees Set forth on Schedule 5.10 --------------------------------- ------------- is a complete and correct list of the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base the employees of Seller employed in connection with its business (the "Employees"), indicating salary and other compensation data and date of employment and indicating those Employees who are, as of the date hereof, on disability, sick leave, layoff or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and leave of absence; (ii) employee benefits (other than any each defined benefit pension benefits and defined contribution plan which is maintained or supplemental executive retirement plan benefits) that are substantially comparablecontributed to by Seller for the Employees, in the aggregateor to which Seller is required to contribute, to those provided with respect to the Continuing Employees immediately prior Employees; and (iii) all employment policies and arrangements, all employment and consulting agreements to the Closingextent not otherwise disclosed on a Schedule to this Agreement, all agreements with respect to leased or temporary employees and all executive compensation plans, incentive compensation plans or arrangements, bonus plans, deferred compensation agreements, excess benefit plans, vacation plans, death benefit plans, sickness or disability plans, severance pay plans, educational assistance plans, employee stock option, stock ownership or stock purchase plans, group life, health and accident insurance and other plans, agreements, arrangements or commitments, whether or not legally binding, whether written or oral, and whether express or implied, of Seller which benefit the Employees or former Employees of Seller ("Former Employees"), or their dependents, survivors or beneficiaries. Except as provided in Schedule 5.10 hereof, all Employees and Former Employees will be ------------- fully paid through the Closing for services rendered and for ordinary expenses incurred through the Closing under their respective employment agreements, if any, or otherwise, and no Employee is indebted directly or indirectly to Seller.
(b) During Except as set forth on Schedule 5.10, there is no "employee ------------- benefit plan" within the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severancemeaning of Section 3(3) of ERISA, and bonus agreements(to the extent not otherwise included as an "employee benefit plan") no stock ownership, if anynon- cash compensation or other similar plan, between program or arrangement maintained by or for Seller under which Seller has any present or future obligation or liability (other than to make current wage or salary payments) with respect to Employees or Former Employees or their dependents, survivors or beneficiaries (all of which, together with the Company plans, policies and arrangements set forth on Schedule 5.10, are hereafter referred to ------------- as the "Benefit Plans"). Seller has no present or a Subsidiary future liability to Former Employees or to their dependents, survivors or beneficiaries in connection with or arising out of the Companyany Benefit Plan, on the one handcompensation arrangement or practice which Seller maintained, and a Continuing Employee, on the other hand, immediately adopted or to which Seller contributed prior to the Effective TimeClosing, including but and Seller has not limited to the MoneyGram Payment Systemsmaintained, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall adopted or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan contributed to any Continuing Benefit Plan that provides benefits or payments to Former Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.or their dependents, survivors or beneficiaries, except as indicated in Schedule 5.10. -------------
(c) For With respect to the Employees, Seller has complied in all purposes (including for purposes material respects with Title VII of vestingthe Civil Rights Act of 1964, eligibility to participate as amended, the Fair Labor Standards Act, as amended, the Immigration Reform and level Control Act of benefits (other than for vesting purposes under any equity-based or incentive 1986, and all applicable laws, rules and regulations governing payment of minimum wages and overtime rates, the withholding and payment of taxes from compensation Plan)) of employees, discriminatory practice with respect to each applicable employee benefit plan sponsored employment and discharge or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent otherwise relating to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication conduct of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations employers with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company employees or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearpotential employees.
(d) The provisions of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period Immediately following the Effective Time (Closing and until the “Protection Period”)one-year anniversary of the Closing, Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, and its Subsidiaries will (i) base continue to employ each Company Employee at total compensation (including salary or wages hourly wage rates (as the case may be), bonus opportunities and cash incentive compensation opportunities that are no less favorable, 401(k) benefits for Company Employees in each instance, to those the United States (and 401(k)-like benefits then provided to Company Employees in the Continuing United Kingdom) the same as or substantially similar to, and at positions and with duties the same as or substantially similar to, the total compensation (including salary, or hourly wage rates (as the case may be), bonus opportunities and 401(k) benefits for Company Employees in the United States (and 401(k)-like benefits then provided to Company Employees in the United Kingdom) received and the positions held by such Company Employee as of the time immediately prior to the Closing and (ii) employee provide each Company Employee with severance benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, no less favorable in the aggregate, to aggregate than those provided to such Company Employee as of the Continuing Employees time immediately prior to the Closing; provided that nothing contained herein shall obligate the Company or any of its Subsidiaries to continue to employ any Company Employee for any specified period of time after the Closing.
(b) During For purposes of vesting, benefit accrual, vacation and sick time credit and eligibility to participate under the Protection Periodemployee benefit plans, Parent shall or shall cause programs and policies provided to Company Employees after Closing (including the Surviving Company to assume Benefit Plans as in effect after the Closing and honor the Company’s benefit plans of Buyer and its Subsidiaries’ obligations under all employmentAffiliates as in effect after the Closing (“Buyer Benefit Plans”) (collectively, severancethe “New Plans”)), and bonus agreements, if any, between each Company Employee shall be credited with his or her years of service with the Company and its Subsidiaries and their respective predecessors before the Closing to the same extent as such Company Employee was entitled, before the Closing, to credit for such service under any similar Company Benefit Plan in which such Company Employee participated or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, was eligible to participate immediately prior to the Effective TimeClosing (collectively, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Old Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with ; provided that the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service foregoing shall not be recognized apply to the extent that such recognition its application would result in a duplication of benefitsbenefits with respect to the same period of service. Notwithstanding In addition, and without limiting the generality of the foregoing, if and when Buyer provides benefits to Company Employees under the New Plans, Buyer shall cause (i) each Company Employee to be immediately eligible to participate, without any waiting time, in any and all New Plans to the extent permitted coverage under applicable lawsuch New Plan is replacing comparable coverage under an Old Plan, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan and (or other plan that is no longer open to new participants). Such service also shall apply ii) for purposes of satisfying each New Plan providing medical, dental, life, pharmaceutical and/or vision benefits to any waiting periodsCompany Employee, any evidence of insurability requirements, or the application of any all pre-existing condition limitations with respect exclusions and actively-at-work requirements of such New Plan to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations be waived for such Company Employee and eligibility waiting periods his or her covered dependents, to the same extent such conditions were inapplicable or waived under the applicable comparable Old Plan. The Continuing Employees Buyer shall be given credit for amounts paid under a corresponding Plan cause any eligible expenses incurred by any Company Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Company or any Subsidiary during Employee’s participation in the same period corresponding New Plan begins to be taken into account under such New Plan for purposes of applying deductiblessatisfying all deductible, co-payments coinsurance and maximum out-of-pocket maximums as though requirements applicable to such amounts had been paid in accordance with the terms Company Employee and conditions of the Parent Plan during his or her covered dependents for the applicable plan year.
(c) Immediately prior to the Closing, the Company will pay (i) each participant in the Company’s bonus plans and (ii) each Company Employee who has historically been eligible to receive a discretionary bonus in the Ordinary Course of business, an annual bonus for the fiscal year ended September 30, 2015 in an amount earned by such participants and Company Employees for the fiscal year ended September 30, 2015 as reasonably determined by the Company (collectively, the “FY 2015 Bonuses”); provided, however, that to the extent such payment would cause an impermissible acceleration event under Section 409A of the Code or result in non-deductible payments under Section 280G of the Code, the amount of any such payment shall be determined by the Company prior to the Closing and Buyer shall cause the Company to pay such amounts as soon as practicable after Closing in the Ordinary Course of business.
(d) The provisions of this Section 5.6 are solely for the benefit 5.14(d) of the parties hereto Seller Disclosure Schedule sets forth a list of each Company Employee and nothing other Person who is entitled to a payment solely by reason of a “change in control” or “change of control” within the meaning of the Company Benefit Plans that contain such terms. Immediately prior to the Closing, the Company shall cause all such amounts to be accrued on the books and records of the Company and its Subsidiaries and shall cause such amounts to be paid immediately after the Closing (the “Change of Control Payments”).
(e) Effective as of a date no later than the day immediately preceding the Closing Date, each of the Company and its Subsidiaries shall terminate any and all plans that include a Code Section 401(k) arrangement (each, a “401(k) Plan”). No later than five Business Days prior to the Closing Date, Seller shall provide Buyer with evidence that each 401(k) Plan has been terminated (effective as of no later than the day immediately preceding the Closing Date) pursuant to resolutions of the Board of Directors of the Company, or the Board of Directors of such Subsidiary of the Company, as the case may be (the “401(k) Termination Resolutions”). The Company also shall take such other actions in furtherance of terminating each 401(k) Plan as Buyer may reasonably require. In the event that termination of a 401(k) Plan would reasonably be anticipated to trigger liquidation charges, surrender charges or other fees then such charges and/or fees shall be paid by and shall be the responsibility of the Company.
(f) Nothing contained in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right Agreement is intended to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall (i) be deemed treated as an amendment of any particular Company Benefit Plan, (ii) prevent Buyer, the Company or any of their Affiliates from amending or terminating any of their benefit plans (including the Company Benefit Plans) in accordance with their terms, (iii) prevent Buyer, the Company or any of their Affiliates, after the Closing, from terminating the employment of any Company Employee, or (iv) create any third-party beneficiary rights in any Company Employee, any beneficiary or dependent thereof, or any collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment and/or benefits that may be provided to any Company Employee.
(g) As promptly as practicable after the date of this Agreement and prior to the Closing, Seller shall, and shall cause the Company and its Subsidiaries to, take commercially reasonable efforts to implement, as of the Closing, the plans and agreements set forth in Section 5.14(g) of the Seller Disclosure Schedule.
Appears in 1 contract
Samples: Stock Purchase Agreement (Korn Ferry International)
Employees; Employee Benefit Plans. (a) During Effective as of the 12-month period following the Effective Time (the “Protection Period”Closing Date, except as listed on Schedule 5.5(A), Parent Purchaser shall or shall cause make an offer of employment to each of the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain who are employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing Date, which offer shall, in the case of employees with the title of Associate Director or higher, be conditioned upon, among other things, the execution by such employee of a Confidential Information Agreement. The Company and the Members shall use their reasonable commercial efforts to have all of such employees accept such offers. For purposes of determining eligibility to participate and vesting under any employee benefit plan of Purchaser, employees of the Company who become employees of Purchaser and actually perform services for Purchaser on the Closing Date or within four (4) weeks immediately thereafter (the “Continuing Employees”) shall receive service credit for service with Purchaser to the same extent such credit was granted under the Company’s comparable employee benefit plans. Notwithstanding anything set forth herein to the contrary, (i) nothing in this Agreement shall create any obligation on the part of the Purchaser to continue the employment of any employee for any period following the Closing Date and (ii) nothing in this Agreement shall preclude Purchaser from altering, amending or terminating any of its employee benefits (other than benefit plans, or the participation of any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparableof its employees in such plans, at any time. Notwithstanding anything herein, in the aggregate, to those provided Employment Agreements or in the Confidential Information Agreements to the Continuing Employees immediately prior contrary, Jxxx Xxxxxx, Gxxx Xxxxx and Kxxxxxxx Xxxxxx shall be authorized and permitted to conduct all activities necessary and advisable to the Closingwinding up of the business of the Company from and after the Closing Date, including coordinating the completion and/or termination of Specified Excluded Matters and Possible Excluded Matters as contemplated in Section 2.6(d).
(b) During To the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) extent applicable with respect to each applicable employee benefit plan sponsored plans, programs and arrangements that are established or maintained by Parent or Purchaser for the Surviving Company benefit of Continuing Employees, Continuing Employees (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity theretotheir eligible dependents) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoinggiven credit, to the extent permitted under therein or by the applicable lawinsurance contracts, Parent shall not be required to provide credit for such their service with the Company and its Affiliates (i) for all purposes (other than benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan) to the extent such service was taken into account under a corresponding Benefit Plan immediately prior to the Closing Date, postretirement welfare plan or grandfathered plan and (or other plan that is no longer open to new participants). Such service also shall apply ii) for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Benefit Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during plans and arrangements maintained by Purchaser. Notwithstanding the applicable plan yearforegoing provisions of this paragraph (b), service and other amounts shall not be credited to Continuing Employees (or their eligible dependents) to the extent the crediting of such service or other amounts would result in a duplication of benefits.
(c) All Continuing Employees shall be covered by Purchaser’s medical, prescription drug, dental, vision, life and accidental death and dismemberment plans on the first day of the calendar month immediately following the Closing Date. The Company shall pay any premiums and take any other actions necessary to continue coverage under the Company’s medical, prescription drug, dental, vision, life and accidental death and dismemberment plans for the Continuing Employees until and including the last day of the calendar month in which the Closing Date occurs.
(d) The provisions of this Section 5.6 are solely Company shall retain all, and Purchaser shall not assume and shall not be deemed to have assumed any, liability or responsibility for obligations or liabilities under, with respect to or arising in connection with any Benefit Plan or to or with respect to any Continuing Employee for periods prior to the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Closing Date. With respect to each Continuing Employee, the Company shall retain the obligation and liability for any workers’ compensation or legal representative similar workers’ protection claims with respect to any such individual, whether incurred prior to, on or after the Closing Date which are the result of an injury or illness originating prior to the Closing Date. Purchaser shall not assume or be obligated to pay, perform or discharge any liability or obligation under any employee benefit plan of the Company or its Affiliates. Purchaser shall have all, and the Company shall not assume and shall not be deemed to have assumed any, liability or responsibility for obligations or liabilities under, with respect to or arising in connection with any benefit plan, program, policy or arrangement of Purchaser or its Affiliates or to or with respect to any Continuing Employee for periods on or after the Closing Date; provided that Purchaser may elect to continue the Symetra Medical buy-up plan. The Company shall terminate effective immediately before the Closing Date the Chicago Partners, LLC 401(k) and profit sharing plan.
(e) The Company shall transfer to Purchaser on the Closing Date complete copies of the personnel records of each Continuing Employee who has consented in writing to such transfer.
(f) Purchaser shall have no liabilities: (i) related to the employees of the Company who do not become Continuing Employees; (ii) related to Continuing Employees to the extent such liability arises from any action, event or course of conduct prior to the Closing Date; or (iii) to the extent such liability arises under or relates to any employee benefit plan of the Company or any of its Affiliates. For the avoidance of doubt, the Purchaser will not assume any employee benefit plan of the Company or any of its Affiliates, including, without limitation, any of the Benefit Plans listed on Schedule 3.14.
(g) Purchaser shall not have responsibility for any severance or termination pay obligations and damages for wrongful dismissal, including obligations arising under the common law, incurred with respect to any period of employment prior to the Closing Date for employees of the Company or any of its Affiliates who do not become Continuing Employees.
(h) The Company shall be responsible for satisfying “continuation coverage” requirements for all “group health plans” under Section 4980B of the Code, Part 6 of Title I of ERISA and comparable state law with respect to each Continuing Employee and each employee of the Company who does not become a Continuing Employee (and any spouse, dependents or beneficiary thereofof such Continuing Employee or other employee) and with respect to each former employee of the Company whose employment terminated before the Closing Date and any spouse, any dependents or beneficiary of such former employee (each such person entitled to “continuation coverage”, a “COBRA Beneficiary”). To satisfy this obligation, the Company shall continue to maintain in effect all “group health plans” that are in effect immediately prior to the Closing Date until such time as all rights or remedies, including any right to employment or continued employment “continuation coverage” for any specified period, or compensation or benefits of any nature or kind whatsoever all COBRA Beneficiaries have ended under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Planall applicable laws.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Navigant Consulting Inc)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to the Company Employees and its Subsidiaries to, (i) give those employees who are employees are, as of the Company or a Subsidiary of the Company at the Effective Time (such Company EmployeesTime, “Continuing Employees”), while such Continuing Employees remain employed by the Company and its Subsidiaries (the "Continuing Employees") full credit for purposes of determining eligibility and vesting (but not for purposes of any benefit accruals) under any employee benefit plans or a Subsidiaryarrangements maintained by Parent, (i) base salary the Surviving Company or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to any Subsidiary of Parent or the Continuing Employees immediately prior to the Closing and (ii) employee benefits Surviving Company (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparableequity-based plans), in the aggregateincluding, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to to, vacation and paid time off accruals, (collectively, the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “"Parent Plans”), if any, ") for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees' service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Planand its Subsidiaries; provided(ii) waive all limitations as to preexisting conditions, however, that such service shall not be recognized exclusions and waiting periods with respect to participation and coverage requirements applicable to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes Continuing Employees under any employee benefit plan or arrangement of Parent Plan that is a defined welfare benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open such employees may be eligible to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or participate in after the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods Effective Time to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of by the Company and its Subsidiaries or otherwise not subject to a limitation by the Company and its Subsidiaries; (iii) provide credit under any Subsidiary during the same period such welfare plan for purposes of applying deductibles, any co-payments payments, deductibles and out-of-pocket maximums as though such amounts had been paid expenditures for the remainder of the coverage period during which any transfer of coverage occurs; and (iv) honor in accordance with their terms all employee benefit plans or arrangements maintained by the terms and conditions of Company immediately prior to the Parent Plan during the applicable plan yearEffective Time.
(db) The provisions of this Section 5.6 8.5 are solely for the sole benefit of the parties hereto to this Agreement and nothing in this Section 5.6herein, express expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing EmployeeEmployees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or legal representative on or beneficiary thereofafter the Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and their respective permitted successors and assigns, any legal or equitable or other rights or remedies, including any right remedies (with respect to employment the matters provided for in Section 8.5) under or continued employment for any specified period, or compensation or benefits by reason of any nature or kind whatsoever under provision of this Agreement. Nothing contained in this Section 5.6, express 8.5 or implied, elsewhere in the Agreement shall be deemed an amendment construed to prevent, from and after the Effective Time, the termination of employment of any Planindividual Continuing Employee or, subject to the provisions of Section 8.5 (a) and Section 8.5(b), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular Plan in accordance with its terms.
Appears in 1 contract
Samples: Merger Agreement (Cartesian, Inc.)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to Corporation and its Subsidiaries to, (i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including full credit for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored plans or arrangements maintained by Parent, the Surviving Corporation or any Subsidiary of Parent or the Surviving Company Corporation (collectively, the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company and its Subsidiaries; (ii) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan that is a comparable Planwelfare benefit plan that such employees may be eligible to participate in after the Effective Time; and (iii) provide credit under any such welfare plan for any co-payments, deductibles and out-of-pocket expenditures for the remainder of the coverage period during which any transfer of coverage occurs; provided, however, that no such service shall not be recognized to the extent that such recognition would result in a the duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan year.
(db) The provisions of this Section 5.6 5.08 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the Effective Time, the Surviving Corporation or any of its Subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.6, express 5.08) under or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits by reason of any nature or kind whatsoever under provision of this Agreement. Nothing contained in this Section 5.6, express 5.08 or implied, elsewhere in this Agreement shall be deemed an amendment construed to prevent, from and after the Effective Time, the termination of employment of any Planindividual Continuing Employee or, subject to the provisions of Section 5.08(a), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular Plan in accordance with its terms.
Appears in 1 contract
Samples: Merger Agreement (NightHawk Radiology Holdings Inc)
Employees; Employee Benefit Plans. (a) During the 12period from the Closing and one (1) year after the Closing Date, Purchaser will, and will cause the Company to, provide each Company Employee who remains employed by an Acquired Company, Purchaser or an Affiliate of Purchaser immediately after the Closing (“Company Continuing Employee”) with: (i) annual base salary or hourly wages which are substantially comparable to the annual base salary or hourly wages provided by the Company immediately prior to the Closing; (ii) target annual cash bonus opportunities and commissions (excluding equity and equity-month period following the Effective Time (the “Protection Period”based compensation), Parent shall or shall cause the Surviving Company to provide if any, which are substantially comparable to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time target annual cash bonus opportunities and commissions (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed excluding equity and equity-based compensation) provided by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees Company Subsidiary immediately prior to the Closing Closing; and (iiiii) employee retirement and welfare benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, comparable to those provided to by the Continuing Employees Company or Company Subsidiary immediately prior to the Closing.
(b) During the Protection PeriodWith respect to any employee benefit plan maintained by Purchaser or its Subsidiaries (collectively, Parent shall or shall cause the Surviving “Purchaser Benefit Plans”) in which any Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect Employees will participate effective as of the Effective Time (the “Company Severance Plan”). Parent shall Closing, Purchaser shall, or shall will cause the Surviving Company to provide the severance payments and benefits set forth in Company Subsidiary (as applicable) to, recognize all service of the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Company Subsidiary (or any predecessor entity thereto) shall as applicable), as the case may be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that if such service shall were with Purchaser, for vesting and eligibility purposes in any Purchaser Benefit Plan in which such Company Continuing Employees may be eligible to participate after the Closing Date; provided that, such service will not be recognized to the extent that (x) such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for (y) such service for benefit accrual purposes was not recognized under any employee benefit plan the corresponding Employee Benefit Plan or arrangement of Parent that is a (z) such service related to defined benefit pension planplan and/or retiree welfare arrangements. In addition, postretirement welfare plan or grandfathered plan Purchaser shall, and shall cause its Affiliates to use commercially reasonable efforts to cause (or other plan that is no longer open i) to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any be waived all pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive preexclusions and actively-existing condition limitations at-work requirements and similar limitations, eligibility waiting periods and evidence of insurability requirements under any Purchaser Benefit Plans to the same extent waived or satisfied by a Company Continuing Employee under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding any Employee Benefit Plan as of the Company or Closing and (ii) any Subsidiary during the same period for purposes of applying deductiblesdeductible, co-payments insurance and covered out-of-pocket maximums as though such amounts had been expenses paid on or before the Closing by any Company Continuing Employee (or covered dependent thereof) to be taken into account for purposes of satisfying the corresponding deductible, coinsurance and maximum out-of-pocket provisions after the Closing under any applicable Purchaser Benefit Plan in accordance with the terms and conditions of same plan year in which the Parent Plan during the applicable plan yearClosing occurs.
(dc) The provisions of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6Nothing contained herein, express or implied, shall (i) is intended to confer upon any Company Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including Employee any right to employment or continued employment for any specified periodperiod or continued receipt of any specific employee benefit, or compensation shall constitute an amendment to or benefits any other modification of any nature benefit plan, (ii) shall alter or kind whatsoever under limit Purchaser’s, Company’s, Company Subsidiary’s or their Affiliates’ ability to amend, modify or terminate any particular benefit plan, program, agreement or arrangement or (iii) is intended to confer upon any individual (including employees, retirees or dependents or beneficiaries of employees or retirees) any right as a third-party beneficiary of this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period On or as soon as practicable following the Effective Time (the “Protection Period”)Time, Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time shall become eligible to participate in the employee benefit plans sponsored or maintained by Acquiror or People’s United Bank, as applicable (such Company Employees, the “Continuing EmployeesAcquiror Plans”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing same extent and on the same terms (or, on more favorable terms) as similarly situated employees of People’s United Bank (it being understood that inclusion of Company Employees immediately prior in such Acquiror Plans may occur at different times with respect to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparabledifferent plans). Until such time, such Company Employees shall continue to participate in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
Plans (b) During the Protection Period, Parent shall or shall cause the Surviving excluding equity-based Plans and any Company to assume and honor Common Stock fund feature of the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between 401(k) Plan) in which each such Company Employee participated before the Company or a Subsidiary of the Company, Effective Time on the one hand, and a Continuing Employee, on the other hand, same (or more favorable) terms as in effect immediately prior to the Effective Time); provided, including but not limited however, that (i) nothing contained herein shall require Acquiror or any of its Subsidiaries to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan make any grants to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes Employee under any equity-based or incentive compensation Plan)Acquiror Plans, it being understood that any such grants are completely discretionary and (ii) with nothing contained herein shall require a Company Employee’s participation in any Acquiror Plan that is a defined benefit pension plan.
(b) With respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if anyAcquiror Plan, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit planAcquiror Plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable PlanAcquiror; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Acquiror Plan. Each Parent Acquiror Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Company Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary benefit plan during the same period for purposes of applying deductibles, co-payments and payments, out-of-pocket maximums and similar payments as though such amounts had been paid in accordance with the terms and conditions of the Parent Acquiror Plan during the applicable plan year.
(dc) The Company and Acquiror acknowledge and agree that all provisions of this Section 5.6 contained herein with respect to employees, officers, directors, consultants and independent contractors are solely included for the sole benefit of the parties hereto Company and nothing Acquiror and shall not create any right (i) in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remediesother person, including Plans or any right beneficiary thereof or (ii) to employment or continued employment for with Acquiror or any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Planits affiliates.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period following As of the Effective Time (the “Protection Period”)Time, Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (shall, unless and until such Company EmployeesEmployees become eligible to participate in the employee benefit plans sponsored or maintained by TD Banknorth Inc. (excluding equity-based plans and defined benefit pension plans) (the “TD Banknorth Plans”) in which similarly situated employees of TD Banknorth Inc. participate, to the same extent as similarly situated employees of TD Banknorth Inc. so participate (it being understood that inclusion of Company Employees in such employee benefit plans may occur at different times with respect to different plans), continue to participate in the Plans (excluding the Company Stock Incentive Plans (other than with respect to Parent Options), the DRIP and Purchase Plan and the Employee Stock Ownership Plan feature of the Company’s 401(k) Plan); provided, however, that (i) nothing contained herein shall require Parent or any of its Subsidiaries to make any grants to any Company Employee under any equity-based plans, it being understood that any such grants are completely discretionary, (ii) nothing contained herein shall require Parent or any of its Subsidiaries to permit a Company Employee who is receiving severance as a result of the transactions contemplated by this Agreement (or together with any other action) pursuant to any employment, severance, change-in-control, consulting or other compensation agreements, plans and arrangements with the Company or any of its Subsidiaries to participate in any severance or change-in-control agreement or plan offered by Parent or any of its Subsidiaries, (iii) nothing contained herein shall require a Company Employee’s participation in Parent’s or any of its Subsidiaries’ defined benefit pension plan and (iv) until December 31, 2008, the employee benefit plans made available to the Company Employees shall be no less favorable in the aggregate than the employee benefit plans (excluding equity-based plans, defined benefit pension plans and severance policies and practices) provided to the Company Employees on the date of this Agreement. From and after the Effective Time, Parent shall cause the Company and its Subsidiaries, and any successors thereto, to honor, without modification, all employment, retention, severance and change-in-control contracts, agreements and arrangements, as amended through the date hereof, listed in Section 4.11(a) of the Company Disclosure Schedule (the “Continuing EmployeesEmployment Agreements”). As of the Effective Time, employees of the Company and its Subsidiaries who are not otherwise parties to the Employment Agreements (excluding any Employment Agreements that do not provide for severance or similar termination pay) shall be covered by and eligible to participate in that certain severance plan attached to this Agreement in Section 7.7(a)-1 of the Parent Disclosure Schedule (the “Severance Plan”), while which (x) shall take into account all service with the Company or any Subsidiary (or any of their respective predecessors) as provided for therein and (y) shall be caused by Parent to be maintained for at least two years following the Closing Date. In addition, effective as of the Effective Time, with respect to Eligible Employees (as such Continuing Employees remain term is defined in the Severance Plan) who are employed by the Company or a Subsidiary, Subsidiary (i“Company Eligible Employees”): (A) base salary or wages and cash incentive compensation opportunities the schedule of Severance Benefits (as such term is defined in the Severance Plan) that are no less favorable, in each instance, to those shall be provided to such employees who become Displaced Employees (as such term is defined in the Continuing Employees immediately prior to Severance Plan) shall be as set forth in Section 7.7(a)-2 of the Closing Parent Disclosure Schedule and (iiB) employee benefits the chief financial officer of the Company shall be consulted by the Plan Administrator (other than any as such term is defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregateSeverance Plan), and shall participate in an advisory capacity, with respect to those provided to all decisions of the Continuing Employees immediately prior to the ClosingPlan Administrator regarding any Company Eligible Employee or Displaced Employee, as applicable.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with With respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if anyTD Banknorth Plan, for purposes of determining eligibility to participate, vesting, entitlement to benefits (including determination of the amount of any benefit that is affected by seniority) and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit planplan of Parent), service with the Company or any Subsidiary (or any predecessor entity theretoof their respective predecessors) shall be treated as service with Parent to the same extent recognized by the Company prior to the date of this Agreement under a comparable PlanPlans; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent TD Banknorth Plan. Each Parent TD Banknorth Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Company Employees shall be given credit for amounts paid under a corresponding Plan benefit plan of the Company or any Subsidiary of its Subsidiaries during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent TD Banknorth Plan during the applicable plan year.
(c) With respect to the Company’s 2008 calendar year, Parent shall cause the Surviving Company to provide that each Company Employee will participate during such year in either (i) the TD Banknorth Plans providing an annual cash bonus payable in respect of such year or (ii) the Plans that are annual cash incentive plans; provided, however, that in all events, Parent shall cause the Surviving Company to pay bonuses thereunder in respect of such 2008 calendar year to the Company Employees as follows: (i) for Company Employees who are parties to an Employment Agreement that contains a target annual bonus amount (the “Target Bonus”), they shall receive payment of an amount equal to at least the pro rata portion of such Target Bonus in respect of the period from January 1, 2008 through the Closing Date and (ii) for Company Employees who are not parties to Employment Agreements containing a target annual bonus amount, they shall receive payment of an amount equal to at least the pro rata portion of the actual annual bonus received by each such Company Employee payable in respect of calendar year 2007 in respect of the period from January 1, 2008 through the Closing Date; which payment Parent shall cause to be made no later than the date that annual bonuses are otherwise payable pursuant to the Plans and/or Employment Agreements in respect of calendar year 2008. In addition, with respect to the Company’s 2007 calendar year, Parent shall make grants to Company Employees of equity-based awards on Parent Common Shares equal in the aggregate to up to $30 million in value of equity-based awards granted with respect to Company Common Stock to Company Employees, based on a Black-Scholes or equivalent equity compensation calculation methodology (the “Equity Pool Amount”); provided, however, that the amount of the Equity Pool Amount shall be reduced by the value (as determined consistent with the calculation of the Equity Pool Amount) of the aggregate amount of equity-based awards granted on Company Common Stock to Company Employees employed by CBIS in calendar year 2007, if CBIS is sold prior to Parent making such grants. Notwithstanding the foregoing, in the event that there occurs a sale of CBIS (x) prior to the payment of any annual bonus payment in respect of the 2007 calendar year under any Plan, any Company Employees employed by CBIS who were eligible to receive such a bonus shall nevertheless receive such bonus payments on the date that such bonuses are otherwise payable to Company Employees; and/or (y) prior to the Closing Date, any Company Employees employed by CBIS who would have been eligible to receive an annual bonus payment in respect of the 2008 calendar year under any Plan shall nevertheless receive a bonus payment calculated and payable in the same manner described above for Company Employees employed with the Company or its Subsidiaries, prorated for the period from January 1, 2008 through the date of closing of the sale of CBIS.
(d) The Company and Parent agree that the Company Retirement Plan for Outside Directors, as the same is set forth in Section 7.7(d) of the Company Disclosure Schedule, is and shall be the sole plan providing for retirement benefits to nonemployee members of the board of directors of the Company.
(e) The Company and Parent acknowledge and agree that all provisions of contained in this Section 5.6 7.7 and Section 2.4 with respect to employees, officers, directors, consultants and independent contractors are solely included for the sole benefit of the parties hereto Company and nothing Parent and shall not create any right (i) in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remediesother person, including Plans or any right beneficiary thereof or (ii) to employment or continued employment for with Parent or any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Planits Affiliates.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period following Following the Effective Time (the “Protection Period”)Time, Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Transferred Employees”), while such Continuing Employees remain employed by ) shall continue to participate in all employee benefit plans of the Company until the later of December 31, 2013 or a Subsidiary, (isuch time(s) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, as the Transferred Employees become eligible to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, participate in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable corresponding employee benefit plan plans sponsored or maintained by Parent or the Surviving Company in which similarly situated employees of Parent participate (the “Parent Plans”), if anyto the same extent as such similarly situated employees of Parent so participate (it being understood that inclusion of Transferred Employees in such Parent Plans may occur at different times with respect to different Parent Plans); provided, however, that (i) nothing contained herein shall require Parent or any of its Subsidiaries to make any grants to any Company Employee under any equity-based plans, it being understood that any such grants are completely discretionary, (ii) nothing contained herein shall require Parent or any of its Subsidiaries to permit a Company Employee who is receiving severance as a result of the transactions contemplated by this Agreement (or together with any other action) pursuant to any employment, severance, change-in-control, consulting or other compensation agreements, plans and arrangements with the Company or any of its Subsidiaries to participate in any severance or change-in-control agreement or plan offered by Parent or any of its Subsidiaries and (iii) nothing contained herein shall require a Company Employee’s participation in Parent’s or any of its Subsidiaries’ post-retirement welfare benefit plans or defined benefit pension plans.
(b) As soon as practicable after the date of this Agreement but in no event later than the Effective Time, Parent and Company shall cooperate in good faith to cause the adoption, implementation and entry into, for the benefit of the Transferred Employees, certain compensation plans, the material terms of which are described in Section 7.6(b) of the Company Disclosure Schedule, which plan documents shall be in accordance with such material terms and subject to Parent’s final approval of such plan documents (which consent shall not be unreasonably withheld or delayed). For a period beginning at the Effective Time and continuing through December 31, 2013: (i) Parent shall (and shall cause its Subsidiaries to) maintain and keep in full force and effect the Company 401(k) plan in accordance with the terms of such plan, and during this time, without the prior written consent of the plan administrators of such plans and (ii), Parent shall not (and shall cause its Subsidiaries not to) permit or cause the early termination of any such plan or the amendment or modification any such plan in a manner adverse to any beneficiary thereof, in any such case that would be effective during such period, except as may be otherwise required by Law.
(c) On and after the Effective Time, Parent shall, or cause its Subsidiaries to, provide the Transferred Employees with such cash and equity-based compensation opportunities as are set forth in any such employee’s Employment Contract (which are listed in Section 7.6(c) of the Company Disclosure Schedule), and/or the applicable compensation plans as described in Section 7.6(b) of the Company Disclosure Schedule, and otherwise as shall be agreed between Parent and senior management of the Company.
(d) With respect to each Parent Plan, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits or “core contributions” under any the U.S. tax qualified defined benefit pension plan or post-retirement welfare benefit plancontribution Parent Plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable PlanParent; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Transferred Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan year.
(de) The Company and Parent acknowledge and agree that all provisions of contained in this Section 5.6 7.6 with respect to employees, officers and directors are solely included for the sole benefit of the parties hereto Company and nothing Parent and shall not create any right (i) in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remediesother person, including Plans or any right beneficiary thereof or (ii) to employment or continued employment for with Parent or any specified periodof its affiliates or any continued compensation, employee benefits or compensation or benefits of any nature or kind whatsoever under this Agreementother right. Nothing in this Section 5.6contained herein, whether express or implied, shall be deemed treated as an amendment or modification of any Planemployee benefit plan, program, arrangement or agreement.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period following As of the Effective Time (the “Protection Period”)Time, Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (shall, unless and until such Company EmployeesEmployees become eligible to participate in the employee benefit plans sponsored or maintained by TD Banknorth Inc. (excluding equity-based plans and defined benefit pension plans) (the “TD Banknorth Plans”) in which similarly situated employees of TD Banknorth Inc. participate, to the same extent as similarly situated employees of TD Banknorth Inc. so participate (it being understood that inclusion of Company Employees in such employee benefit plans may occur at different times with respect to different plans), continue to participate in the Plans (excluding the Company Stock Incentive Plans (other than with respect to Parent Options), the DRIP and Purchase Plan and the Employee Stock Ownership Plan feature of the Company’s 401(k) Plan); provided, however, that (i) nothing contained herein shall require Parent or any of its Subsidiaries to make any grants to any Company Employee under any equity-based plans, it being understood that any such grants are completely discretionary, (ii) nothing contained herein shall require Parent or any of its Subsidiaries to permit a Company Employee who is receiving severance as a result of the transactions contemplated by this Agreement (or together with any other action) pursuant to any employment, severance, change-in-control, consulting or other compensation agreements, plans and arrangements with the Company or any of its Subsidiaries to participate in any severance or change-in-control agreement or plan offered by Parent or any of its Subsidiaries, (iii) nothing contained herein shall require a Company Employee’s participation in Parent’s or any of its Subsidiaries’ defined benefit pension plan and (iv) until December 31, 2008, the employee benefit plans made available to the Company Employees shall be no less favorable in the aggregate than the employee benefit plans (excluding equity-based plans, defined benefit pension plans and severance policies and practices) provided to the Company Employees on the date of this Agreement. From and after the Effective Time, Parent shall cause the Company and its Subsidiaries, and any successors thereto, to honor, without modification, all employment, retention, severance and change-in-control contracts, agreements and arrangements, as amended through the date hereof, listed in Section 4.11(a) of the Company Disclosure Schedule (the “Continuing EmployeesEmployment Agreements”). As of the Effective Time, employees of the Company and its Subsidiaries who are not otherwise parties to the Employment Agreements (excluding any Employment Agreements that do not provide for severance or similar termination pay) shall be covered by and eligible to participate in that certain severance plan attached to this Agreement in Section 7.7(a)-1 of the Parent Disclosure Schedule (the “Severance Plan”), while which (x) shall take into account all service with the Company or any Subsidiary (or any of their respective predecessors) as provided for therein and (y) shall be caused by Parent to be maintained for at least two years following the Closing Date. In addition, effective as of the Effective Time, with respect to Eligible Employees (as such Continuing Employees remain term is defined in the Severance Plan) who are employed by the Company or a Subsidiary, Subsidiary (i"Company Eligible Employees"): (A) base salary or wages and cash incentive compensation opportunities the schedule of Severance Benefits (as such term is defined in the Severance Plan) that are no less favorable, in each instance, to those shall be provided to such employees who become Displaced Employees (as such term is defined in the Continuing Employees immediately prior to Severance Plan) shall be as set forth in Section 7.7(a)-2 of the Closing Parent Disclosure Schedule and (iiB) employee benefits the chief financial officer of the Company shall be consulted by the Plan Administrator (other than any as such term is defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregateSeverance Plan), and shall participate in an advisory capacity, with respect to those provided to all decisions of the Continuing Employees immediately prior to the ClosingPlan Administrator regarding any Company Eligible Employee or Displaced Employee, as applicable.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with With respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if anyTD Banknorth Plan, for purposes of determining eligibility to participate, vesting, entitlement to benefits (including determination of the amount of any benefit that is affected by seniority) and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit planplan of Parent), service with the Company or any Subsidiary (or any predecessor entity theretoof their respective predecessors) shall be treated as service with Parent to the same extent recognized by the Company prior to the date of this Agreement under a comparable PlanPlans; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent TD Banknorth Plan. Each Parent TD Banknorth Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Company Employees shall be given credit for amounts paid under a corresponding Plan benefit plan of the Company or any Subsidiary of its Subsidiaries during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent TD Banknorth Plan during the applicable plan year.
(c) With respect to the Company’s 2008 calendar year, Parent shall cause the Surviving Company to provide that each Company Employee will participate during such year in either (i) the TD Banknorth Plans providing an annual cash bonus payable in respect of such year or (ii) the Plans that are annual cash incentive plans; provided, however, that in all events, Parent shall cause the Surviving Company to pay bonuses thereunder in respect of such 2008 calendar year to the Company Employees as follows: (i) for Company Employees who are parties to an Employment Agreement that contains a target annual bonus amount (the “Target Bonus”), they shall receive payment of an amount equal to at least the pro rata portion of such Target Bonus in respect of the period from January 1, 2008 through the Closing Date and (ii) for Company Employees who are not parties to Employment Agreements containing a target annual bonus amount, they shall receive payment of an amount equal to at least the pro rata portion of the actual annual bonus received by each such Company Employee payable in respect of calendar year 2007 in respect of the period from January 1, 2008 through the Closing Date; which payment Parent shall cause to be made no later than the date that annual bonuses are otherwise payable pursuant to the Plans and/or Employment Agreements in respect of calendar year 2008. In addition, with respect to the Company’s 2007 calendar year, Parent shall make grants to Company Employees of equity-based awards on Parent Common Shares equal in the aggregate to up to $30 million in value of equity-based awards granted with respect to Company Common Stock to Company Employees, based on a Black-Scholes or equivalent equity compensation calculation methodology (the “Equity Pool Amount”); provided, however, that the amount of the Equity Pool Amount shall be reduced by the value (as determined consistent with the calculation of the Equity Pool Amount) of the aggregate amount of equity-based awards granted on Company Common Stock to Company Employees employed by CBIS in calendar year 2007, if CBIS is sold prior to Parent making such grants. Notwithstanding the foregoing, in the event that there occurs a sale of CBIS (x) prior to the payment of any annual bonus payment in respect of the 2007 calendar year under any Plan, any Company Employees employed by CBIS who were eligible to receive such a bonus shall nevertheless receive such bonus payments on the date that such bonuses are otherwise payable to Company Employees; and/or (y) prior to the Closing Date, any Company Employees employed by CBIS who would have been eligible to receive an annual bonus payment in respect of the 2008 calendar year under any Plan shall nevertheless receive a bonus payment calculated and payable in the same manner described above for Company Employees employed with the Company or its Subsidiaries, prorated for the period from January 1, 2008 through the date of closing of the sale of CBIS.
(d) The Company and Parent agree that the Company Retirement Plan for Outside Directors, as the same is set forth in Section 7.7(d) of the Company Disclosure Schedule, is and shall be the sole plan providing for retirement benefits to nonemployee members of the board of directors of the Company.
(e) The Company and Parent acknowledge and agree that all provisions of contained in this Section 5.6 7.7 and Section 2.4 with respect to employees, officers, directors, consultants and independent contractors are solely included for the sole benefit of the parties hereto Company and nothing Parent and shall not create any right (i) in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remediesother person, including Plans or any right beneficiary thereof or (ii) to employment or continued employment for with Parent or any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Planits Affiliates.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period As of and following the Effective Time (Time, the “Protection Period”), Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect Subsidiaries as of the Effective Time (the “"Company Severance Plan”)Employees") shall be eligible to participate in Buyer's employee benefit plans in which similarly situated employees of Buyer participate, to the same extent as similarly situated employees of Buyer. Parent shall or shall cause Notwithstanding the Surviving Company foregoing, Buyer agrees to provide or to cause one of its Subsidiaries to provide Company Employees, from the severance payments Effective Time until the later to occur of (x) the twelve-month anniversary of the Closing Date and benefits set forth (y) December 31, 1999, with employee benefit plans or arrangements that are, in the aggregate, no less favorable than those provided to Company Severance Plan Employees immediately prior to any Continuing Employees who are terminated during the Protection Period and neither Parent nor Effective Time to the Surviving Company shall decrease same extent that such persons would be entitled to benefits prior to the severance payments and benefits payable under the Company Severance Plan during the Protection PeriodEffective Time.
(ca) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with With respect to each applicable employee benefit plan sponsored plan, program, policy or arrangement maintained by Parent Buyer or any of its Subsidiaries for the Surviving Company benefit of current or former employees of Buyer or any of its Subsidiaries (the “Parent Plans”each such plan, program, policy or arrangement, a "Buyer Plan"), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits participate and vacation entitlement vesting (but not for benefit accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit planpurposes other than severance and vacation entitlement), service with the Company or any Subsidiary (or any predecessor entity theretoemployers to the extent the Company provides past service credit) shall be treated as service with Parent to the same extent recognized by the Company under a comparable PlanBuyer; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, Buyer shall also cause each Buyer Plan to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan waive (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of i) any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent restriction which was waived under the terms of any analogous Plan immediately prior to the Effective Time or (ii) any waiting period limitation or evidence of insurability requirement which would otherwise be applicable Planto a Company Employee on or after the Effective Time to the extent such Company Employee had satisfied any similar limitation or requirement under an analogous Plan prior to the Effective Time. The Continuing Company Employees shall be given credit for amounts paid under a corresponding any analogous Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearBuyer Plan.
(db) As of the Effective Time, Buyer shall assume and honor and shall cause the appropriate Subsidiaries of Buyer to assume and to honor in accordance with their terms all employment, severance, retirement and other compensation Plans, contracts, agreements and arrangements existing prior to the execution of this Agreement which are between the Company or any of its Subsidiaries and any officer or employee thereof and which have been disclosed in the Company Disclosure Schedule. Buyer acknowledges and agrees that the Merger constitutes a "Change in Control" for all purposes pursuant to such Plans, contracts, agreements and arrangements and agrees to abide by the provisions of any contract, agreement or arrangements which relate to a Change in Control. The provisions of this Section 5.6 7.5(c) are solely intended to be for the benefit of, and shall be enforceable by, each such officer or Company Employee.
(c) From and after the Effective Time, Buyer agrees to maintain or to cause the Surviving Bank to maintain the severance plans set forth in Section 7.5(d) of the parties hereto and nothing Company Disclosure Schedule, without modification, in accordance with their terms. The provisions of this Section 5.67.5(d) are intended to be for the benefit of, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, and shall be deemed an amendment enforceable by, each of any Planthe Company Employees.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During Dime agrees that, as of the 12-month period following Effective Time, the employees of BFS and its subsidiaries at such time ("BFS Employees") shall be employed upon terms and conditions (including retiree and other benefits) no less favorable than those generally afforded to other employees of Dime and its subsidiaries holding similar positions; provided, that service with BFS or its subsidiaries or any predecessor thereto prior to the Effective Time shall be treated as service with Dime or its subsidiaries for purposes of any length-of-service requirements, waiting periods, eligibility periods, vesting periods or differential benefits based upon length-of-service requirements (the “Protection Period”but not for pension benefit accrual purposes), Parent including length-of-service requirements used to determine the number of weeks of vacation to which a BFS Employee is entitled under the relevant Dime policy and to satisfy any waiting periods concerning "preexisting conditions" and any "copayment" or deductible requirements); and provided, further, that nothing herein shall (1) prevent the amendment or shall cause termination of any Compensation Plan of BFS in accordance with its terms, (2) require the Surviving Company Corporation to maintain an employee stock ownership plan or to provide to or permit investment in the Company Employees who are employees securities of BFS or the Surviving Corporation or (3) limit or restrict the ability of the Company Surviving Corporation to terminate the employment of any officer or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closingemployee.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company Dime agrees to assume and honor the Company’s and its Subsidiaries’ obligations under in accordance with their terms all employment, severanceseverance and termination contracts, agreements and bonus agreementsarrangements and employee benefit plans set forth in Schedule 4.1(q); provided, if anythat the foregoing shall not prevent the Surviving Corporation from amending or terminating any such plan, between contract, agreement, arrangement or plan in accordance with its terms. It is Dime's present intention that current recipients of retiree medical benefits from BFS and its subsidiaries will receive retiree medical benefits no less favorable than those generally afforded to employees of Dime and its subsidiaries holding similar positions; provided, that service with BFS or its subsidiaries or any predecessor thereto prior to the Company Effective Time shall be treated as service with Dime or a Subsidiary its subsidiaries; and provided, further, that such recipients shall not be required to make any contribution in respect of such benefits unless required in good faith by Dime for reasons related to the accounting by Dime for postemployment benefits other than pensions under Statement of Financial Accounting Standards No. 106 (or any amendment or successor thereto).
(c) BFS shall take such action as is necessary to terminate the BFS Employee Stock Ownership Plan ("BFS ESOP") effective as of the CompanyEffective Time. Subject to applicable laws and regulations, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or BFS shall cause the Surviving Company BFS ESOP to be amended to provide the severance payments and benefits set forth that, in the Company Severance Plan event of the termination of the BFS ESOP, participants in the BFS ESOP shall be entitled to any Continuing Employees who are terminated during rollover the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable amounts then credited to their respective accounts under the Company Severance BFS ESOP to the 401(k) Savings Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent Dime. Dime shall use reasonable efforts to have the 401(k) Savings Plan accept such rollovers in the form of cash or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearcash equivalents.
(d) The provisions of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.
Appears in 1 contract
Samples: Merger Agreement (Dime Bancorp Inc)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”), Parent shall or shall cause the Surviving Company to provide to the Company Employees who are employees As far in advance of the Company or Closing Date as possible, Buyer shall furnish Seller with a Subsidiary schedule identifying each employee of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed Seller listed on Schedule 2.17 that Buyer does not intend to offer employment to as of Closing. Severance pay for certain of Station's employees hired by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, Buyer shall be treated in the aggregate, to those provided to the Continuing Employees immediately prior to the Closingmanner set forth in Schedule 2.19.
(b) During As of the Protection PeriodClosing Date, Parent Seller shall or terminate the employment of all of the Station's employees, except for any of those it plans to continue to employ in locations other than at the Station. Except to the extent otherwise provided in this Agreement, Seller shall be responsible for and shall cause to be discharged and satisfied in full all amounts owed to any of the Surviving Company to assume and honor terminated employees through the Company’s and its Subsidiaries’ obligations Closing on account of termination, including any wages, salaries, severance benefits, accrued vacation, payments under all any employment, severanceincentive, and compensation or bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined employee benefit pension agreement, plan or post-retirement welfare benefit plan)arrangement, service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized except to the extent that such recognition would result in a duplication of benefitsdischarge may be prohibited by applicable law. Notwithstanding the foregoingIn addition, to the extent permitted under applicable required by law, Parent Seller shall not be retain full responsibility and liability for offering and providing "continuation coverage" to any "qualified beneficiary" who is terminated by Seller and who is covered by a "group health plan" sponsored or contributed to by Seller and who has experienced a "qualifying event" or is receiving "continuation coverage" on or prior to the Closing Date. "Continuation coverage," "qualified beneficiary," "qualifying event" and "group health plan" all shall have the meanings given such terms under Section 4980B of the Code and Section 601 et seq. of ERISA. Seller shall hold Buyer and any entity required to provide credit be combined with Buyer (within the meaning of Section 414(b), (c), (m) or (o) of the Code) harmless from and fully indemnify them against any costs, expenses, losses, damages and liabilities incurred or suffered by them directly or indirectly, including, but not limited to, reasonable attorneys' fees and expenses, which relate to continuation coverage for such service for benefit accrual purposes terminated employees not hired by Buyer or, if hired by Buyer, do not elect to be covered under Buyer's plans, and arise as a result of any employee benefit action or omission by Seller. Between the date hereof and the Closing Date Buyer and Seller shall negotiate in good faith the transfer of 401K plan or arrangement assets of Parent that is a defined benefit pension employees of Station who enter the employment of Buyer from Seller's 401K plan to Buyer's 401K plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open and, if Buyer and Seller agree to new participants). Such service also shall apply for purposes of satisfying any waiting periodsmake such transfer, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees this Agreement shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though amended to reflect such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yeararrangement.
(d) The provisions of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gaylord Entertainment Co)
Employees; Employee Benefit Plans. (a) During Each (i) "employee benefit plan" (within the 12-month period following meaning of Section 3(3) of the Effective Time Employee Retirement Income Security Act of 1974, as amended (the “Protection Period”"ERISA"), Parent shall including multiemployer plans within the meaning of ERISA Section 3(37)) (an "ERISA Employee Benefit Plan") and (ii) stock purchase, stock incentive, severance, employment, loan, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and all other employee benefit plans, agreements, programs, policies or shall cause other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the Surviving Company to provide to future as a result of the Company Employees who are employees transactions contemplated by this Agreement or otherwise) under which (x) any current or former employee, officer, director, consultant or independent contractor of the Company or a Subsidiary any of the Company at the Effective Time its Subsidiaries (such "Company Employees") has any present or future right to benefits and which are contributed to, “Continuing Employees”), while such Continuing Employees remain employed sponsored by or maintained by the Company or a Subsidiary, any of its Subsidiaries or (iy) base salary under which the Company or wages and cash incentive compensation opportunities that are no less favorable, any of its Subsidiaries has any present or future liability (all arrangements described in each instance, to those provided to the Continuing Employees immediately prior to the Closing and this clause (ii), collectively, the "Compensation Agreements") employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefitsshall be collectively referred to as the "Plans". Section 4.11(a) that are substantially comparable, in of the aggregate, to those provided to the Continuing Employees immediately prior to the ClosingCompany Disclosure Letter contains a true and complete list of all material Compensation Agreements and each material ERISA Employee Benefit Plan.
(b) During With respect to each material Plan, the Protection PeriodCompany has delivered to Acquiror or made available a current, Parent shall accurate and complete copy thereof and, to the extent applicable: (i) any related trust agreement or shall cause other funding instrument; (ii) the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreementsmost recent determination letter, if any, between applicable; (iii) the most recent summary plan description and any subsequent summaries of material modifications and any material written communications by the Company or a Subsidiary any of its Subsidiaries to Company Employees within the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company most recent 12 months regarding any commitments to provide the severance payments and additional benefits set forth in the Company Severance Plan or compensation to any Continuing Employees who are terminated during such Company Employees; and (iv) for the Protection Period three (3) most recent years (A) the Form 5500 and neither Parent nor the Surviving Company shall decrease the severance payments attached schedules, (B) audited financial statements and benefits payable under the Company Severance Plan during the Protection Period(C) actuarial valuation reports.
(c) For Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, (i) each Plan has been established and administered in all purposes (including for purposes of vestingrespects in accordance with its terms, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service in all respects in compliance with the Company or any Subsidiary applicable provisions of ERISA, the Code and other applicable Laws; (or any predecessor entity theretoii) shall be treated no "prohibited transaction" (as service with Parent to such term is defined in Section 406 of ERISA and Section 4975 of the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations Code) has occurred with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations ; and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan (iii) each "nonqualified deferred compensation plan" (as defined in Section 409A(d)(1) of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had Code) has been paid operated in accordance good faith compliance with the terms and conditions Section 409A of the Parent Plan during Code and the applicable plan yearguidance promulgated thereunder by the Department of Treasury.
(d) The provisions Each Plan which is intended to be qualified within the meaning of this Section 5.6 401(a) of the Code has received a favorable determination letter or opinion letter as to its qualification, and nothing has occurred, whether by action or failure to act, that could reasonably be expected to cause the loss of such qualification.
(e) No Plan is a multiemployer plan (within the meaning of Section 4001(a)(3) of ERISA), and no Plan is subject to Title IV of ERISA.
(f) With respect to any Plan, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, (i) no actions, suits or claims (other than routine claims for benefits in the ordinary course) are solely pending or, to the knowledge of the Company, threatened, and (ii) no administrative investigation, audit or other administrative proceeding by the Department of Labor, the Department of Treasury, the Internal Revenue Service or other governmental agencies are pending or, to the knowledge of the Company, threatened.
(g) No material Plan exists that would reasonably be expected to (i) result in the payment to any present or former Company Employee of any money or other property, (ii) accelerate or provide any other rights or benefits to any present or former Company Employee or (iii) require the funding of any trust for the benefit of the parties hereto and nothing in this Section 5.6, express any present or implied, shall confer upon any Continuing former Company Employee, in each case as a result of the transactions contemplated by this Agreement (whether alone or legal representative in connection with any subsequent event(s)). There is no Plan that, individually or beneficiary thereofcollectively, any rights or remedies, including any right would reasonably be expected to employment or continued employment for any specified periodgive, or compensation or benefits which has given, rise to the payment of any nature or kind whatsoever amount that would not be deductible pursuant to the terms of Section 280G in connection with the transactions contemplated under this Agreement. Nothing in this Section 5.6.
(h) No RSU provides for the deferral, express or impliedbeyond the Closing Date, shall be deemed an amendment of the payment of any Plancompensation under any Plan that is subject to Section 409A of the Code.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to, (i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”)) full credit for purposes of determining eligibility and vesting (but not for purposes of any benefit accruals) under any Parent Benefit Plans or other arrangements maintained by Parent, while such Continuing Employees remain employed by including, but not limited to, vacation and paid time off accruals, the Surviving Company or a Subsidiary, (i) base salary any Subsidiary of Parent or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits Surviving Company (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)plans) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (collectively, the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Planand its Subsidiaries; provided(ii) waive all limitations as to preexisting conditions, however, that such service shall not be recognized exclusions and waiting periods with respect to participation and coverage requirements applicable to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes Continuing Employees under any employee benefit plan or arrangement of Parent Plan that is a defined welfare benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open such employees may be eligible to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or participate in after the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods Effective Time to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of by the Company and its Subsidiaries or otherwise not subject to a limitation by the Company and its Subsidiaries; (iii) provide credit under any Subsidiary during the same period such welfare plan for purposes of applying deductibles, any co-payments payments, deductibles and out-of-pocket maximums as though such amounts had been paid expenditures for the remainder of the coverage period during which any transfer of coverage of any Continuing Employee occurs; and (iv) honor in accordance with their terms all employee benefit plans or arrangements or collective bargaining agreements maintained by the Company immediately prior to the Effective Time.
(b) From a period of one (1) year from and after the Effective Time, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, provide to the Continuing Employees levels of compensation and benefit arrangements that are no less favorable in the aggregate than either the (i) levels of compensation and benefits provided to the continuing employees immediately prior to the Effective Time or (ii) the levels of compensation and benefit arrangements that are provided to similarly situated employees of Parent. By no later than January 1, 2019, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, cause the Continuing Employees to commence participation in such Parent Plans as are provided to similarly situated employees of Parent, provided that such participation shall be subject to the terms of any collective bargaining agreement or similar contract covering any Continued Employee. From and after the Effective Time, Parent and the Surviving Company shall keep in full force and effect, and comply with the terms and conditions of, any employment, severance or change of control agreement (including, without limitation, any such agreements in the form of offer letters) in effect as of the date of this Agreement or entered into or amended after the date of this Agreement as approved by Parent Plan during in compliance with Section 6.2 hereof between or among the applicable plan yearCompany or any of its Subsidiaries and any of its or their employees.
(dc) The provisions of this Section 5.6 7.5 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.6, express 7.5) under or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits by reason of any nature or kind whatsoever under provision of this Agreement. Nothing contained in this Section 5.6, express 7.5 or implied, elsewhere in the Agreement shall be deemed an amendment construed to prevent, from and after the Effective Time, the termination of employment of any Planindividual Continuing Employee or, subject to the provisions of Sections 7.5(a) and 7.5(b), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular Plan in accordance with its terms.
Appears in 1 contract
Samples: Merger Agreement (Consolidated Communications Holdings, Inc.)
Employees; Employee Benefit Plans. (a) During From and after the 12-month Effective Time, Parent shall honor all Plans in accordance with their terms, provided, that nothing herein shall prohibit Parent from amending or terminating any such Plans in accordance with their terms. To the extent permitted by applicable Law, for a period of at least one year following the Effective Time (the “Protection Period”)or, Parent shall or shall cause the Surviving Company to provide to if earlier, until the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (such Company Employeescollectively, “Continuing Transferred Employees”) become eligible to participate in the employee benefit plans sponsored or maintained by Parent or its Subsidiaries (“Parent Plans” ) in which similarly situated employees of Parent so participate (it being understood that inclusion of Transferred Employees in such Parent Plans may occur at different times with respect to different plans)), while such Continuing Employees remain employed by the Company Parent shall provide, or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instanceshall cause to be provided, to those provided to the Continuing Transferred Employees immediately prior to the Closing compensation and (ii) employee benefits (other than any excluding equity-based awards, retiree medical benefits, defined benefit pension benefits or plan benefits, deferred compensation plan benefits, supplemental executive retirement plan benefits and employee stock purchase plan benefits) that are substantially comparable, in the aggregate, to those the compensation and benefits provided to the Continuing Transferred Employees immediately prior before the Effective Time. From and after the time Transferred Employees become eligible to participate in any given Parent Plan, Parent shall provide, or shall cause to be provided, Transferred Employees with compensation and benefits that are no less favorable, in the aggregate, to the Closingcompensation and benefits provided under such given Parent Plan to similarly situated employees of Parent and its Subsidiaries, subject to the provisions of Sections 7.6(b) and 7.6(c) below, as applicable. Nothing in this Agreement shall be construed as requiring Parent or the Surviving Company to continue any specific employee benefit plans or continue to employ any Transferred Employee for any length of time following the Effective Time.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate participate, accrual of benefits and level of benefits) under the employee benefit plans of Parent and its Subsidiaries providing benefits to any Transferred Employees after the Effective Time (other than the “New Plans”), Parent shall cause each Transferred Employee to be credited for vesting purposes his or her years of service with the Company and its Subsidiaries and their respective predecessors before the Effective Time, to the same extent as such Transferred Employee was entitled, before the Effective Time, to credit for such service under any equity-based similar Company employee benefit plan in which such Transferred Employee participated or incentive compensation Plan)was eligible to participate immediately prior to the Effective Time, provided, however, that the foregoing shall not apply (x) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or plan, post-retirement welfare benefit plan), service with medical plan or “core contributions” under the Company Parent 401(k) New Plan or any Subsidiary (or any predecessor entity theretoy) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition its application would result in a duplication of benefits. Notwithstanding In addition, and without limiting the generality of the foregoing, Parent shall cause (A) each Transferred Employee to be immediately eligible to participate, without any waiting time, in any and all New Plans to the extent permitted coverage under applicable lawsuch New Plan is comparable to a Plan in which such Transferred Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”) and (B) for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Transferred Employee, (i) Parent shall not cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be required to provide credit waived for such service for benefit accrual purposes employee and his or her covered dependents, unless such conditions would not have been waived under the comparable Plans in which such employee participated immediately prior to the Effective Time, and (ii) Parent shall cause any eligible expenses incurred by such employee benefit and his or her covered dependents during the portion of the plan or arrangement year of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan the Old Plan ending on the date such employee’s participation in the corresponding New Plan begins (or other plan that is no longer open to new participants). Such service also shall apply the extent credited under an Old Plan) to be taken into account under such New Plan for purposes of satisfying any waiting periodsapplicable deductible, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations coinsurance and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and maximum out-of-pocket maximums requirements applicable to such employee and his or her covered dependents for the applicable plan year as though if such amounts had been paid in accordance with such New Plan.
(c) Notwithstanding anything in this Agreement to the terms and conditions contrary, for a period of one year following the Effective Time, Parent shall provide (A) severance benefits that are no less favorable to Company Employees (other than Company Employees who otherwise are parties to an individual severance agreement with the Company or any Subsidiary or a letter agreement with Parent) than the severance benefits provided to such Company Employees under the Company’s Severance Pay Plan as in effect on the date hereof (as set forth in Section 4.11(a) of the Parent Plan during Company Disclosure Schedule and (B) paid time-off benefits that are no less favorable to Company Employees than the applicable plan yearpaid time-off programs provided to such Company Employees under the Company’s paid time-off programs as in effect on the date hereof (as set forth in Section 4.11(a) of the Company Disclosure Schedule).
(d) The provisions of this Section 5.6 are solely for the benefit of the parties hereto Company and nothing in this Section 5.6Parent acknowledge and agree that all provisions, whether express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing contained in this Section 5.67.6 and Section 2.4 with respect to employees, officers, directors, consultants and independent contractors are included for the sole benefit of the Company and Parent and shall not create any right (i) in any other person, including Plans or any beneficiary thereof or (ii) to continued employment with Parent or any of its Affiliates or any continued compensation, employee benefits or other right. Nothing contained herein, whether express or implied, shall be deemed treated as an amendment or other modification of any Planemployee benefit plan, program, arrangement or agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (South Financial Group Inc)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to, use commercially reasonable efforts to, and in accordance with applicable law, (i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”), while full credit for purposes of determining eligibility and vesting (but not for purposes of any benefit accruals) under any Parent Benefit Plans or other arrangements maintained by Parent, including, but not limited to, vacation and paid time off accruals (other than any defined benefit or equity-based plans) (collectively, the “Parent Plans”) for such Continuing Employees remain employed Employees’ service with the Company or any of its Subsidiaries (or any predecessor entity) to the same extent recognized by the Company and its Subsidiaries; (ii) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan that is a welfare benefit plan that such employees may be eligible to participate in after the Effective Time to the same extent waived by the Company and its Subsidiaries or otherwise not subject to a Subsidiarylimitation by the Company and its Subsidiaries; (iii) provide credit under any such welfare plan for any co-payments, deductibles and out-of-pocket expenditures for the remainder of the coverage period during which any transfer of coverage of any Continuing Employee occurs; and (iiv) base salary honor in accordance with their terms all Company Benefit Plans or wages arrangements or collective bargaining agreements maintained by the Company immediately prior to the Effective Time.
(b) From a period of one (1) year from and cash incentive after the Effective Time, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, provide to the Continuing Employees levels of compensation opportunities and benefit arrangements that are no less favorable, favorable in each instance, to those the aggregate than either the (i) levels of compensation and benefits provided to the Continuing Employees immediately prior to the Closing and Effective Time or (ii) employee benefits (other than any defined the levels of compensation and benefit pension benefits or supplemental executive retirement plan benefits) arrangements that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume similarly situated employees of Parent. From and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to after the Effective Time, including but not limited to Parent and the MoneyGram Payment SystemsSurviving Company shall keep in full force and effect, Inc. Severance Plan as and comply with the terms and conditions of, any employment, severance or change of control agreement (including, without limitation, any such agreements in the form of offer letters) in effect as of the Effective Time (date of this Agreement or entered into or amended after the “Company Severance Plan”). Parent shall date of this Agreement in compliance with Section 6.2 hereof between or shall cause the Surviving Company to provide the severance payments and benefits set forth in among the Company Severance Plan to or any Continuing Employees who are terminated during the Protection Period of its Subsidiaries and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Periodany of its or their employees.
(c) For all purposes The Company shall: (including for purposes i) terminate any Company Benefit Plan which is a defined contribution plan that includes a cash or deferred arrangement that is designed to qualify under Section 401(k) of vestingthe Code, eligibility to participate effective as of the Business Day preceding the Closing Date; (ii) terminate or withdraw from, as applicable, the PEO arrangement and level of benefits (any other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained Company Benefit Plans if so requested by Parent or in writing at least ten (10) days preceding the Surviving Company (Closing Date, with such terminations to be effective as of the “Parent Plans”)Closing Date or, if later, as required pursuant to contractual notice requirements, if any; and (iii) in each case, for purposes provide timely notice of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent termination to the same extent recognized by the Company under a comparable Plan; providedPEO, howeverrelevant service providers or insurance carriers, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearapplicable.
(d) The provisions of this Section 5.6 7.7 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.6, express 7.7) under or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits by reason of any nature or kind whatsoever under provision of this Agreement. Nothing contained in this Section 5.6, express 7.7 or implied, elsewhere in the Agreement shall be deemed an amendment construed to prevent, from and after the Effective Time, the termination of employment of any Planindividual Continuing Employee or, subject to the provisions of Sections 7.7(a) and 7.7(b), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular plan in accordance with its terms.
Appears in 1 contract
Samples: Merger Agreement (Glowpoint, Inc.)
Employees; Employee Benefit Plans. (a) During Parent shall use its reasonable good faith efforts to minimize the 12-month impact of the Merger and the Bank Merger on employees of Seller and Seller Bank, consistent with Parent’s and Parent Bank’s plans for the operations of the business of the combined entities following the Effective Time; provided, however, that this Agreement shall not be construed to limit the ability of Parent or Parent Bank to close a Seller Bank branch or other Seller Bank facility or terminate the employment of any Seller employee. Parent and Parent Bank will offer Seller Bank employees whose jobs are eliminated as a result of the Bank Merger the opportunity to apply for open positions within Parent and Parent Bank and, with respect to employees who are not employed by Parent or Parent Bank, Parent will cause the Surviving Corporation to pay severance to such employees in accordance with Section 6.6(d) of this Agreement. Parent agrees that each employee who is considered an exempt employee and who is terminated or who voluntarily terminates employment pursuant to this Section 6.6(a) shall receive outplacement services with a reputable outplacement firm for a period following of six (6) months from the date of the employee’s termination, and Parent or Parent Bank shall pay all expenses related to the provision of such outplacement services.
(b) With respect to any employee benefit plans of Parent or its Subsidiaries in which any employees of Seller or its Subsidiaries become eligible to participate on or after the Effective Time (the “Protection PeriodNew Plans”), Parent shall or shall cause the Surviving Company shall: (i) waive all exclusions and waiting periods with respect to provide participation and coverage requirements applicable to such employees and their eligible dependents under any New Plans, except to the Company Employees who are employees of extent such exclusions or waiting periods would apply under the Company analogous Seller Benefit Plan, (ii) to the extent permitted by the New Plans and commercially practicable, provide each such employee and their eligible dependents with credit for any co-payments or a Subsidiary of the Company at co-insurance and deductibles paid prior to the Effective Time under a Seller Benefit Plan (such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately same extent that such credit was given under the analogous Seller Benefit Plan prior to the Closing Effective Time) in satisfying any applicable deductible, co-payment, co-insurance or maximum out-of-pocket requirements under any New Plans, and (iiiii) employee recognize all service of such employees with Seller and its Subsidiaries for all purposes in any New Plan to the same extent that such service was taken into account under the analogous Seller Benefit Plan prior to the Effective Time; provided that the foregoing service recognition shall not apply (A) to the extent it would result in duplication of benefits for the same period of services, (other than B) for purposes of any defined benefit pension benefits plan or supplemental executive retirement benefit plan that provides retiree welfare benefits, (C) to any benefit plan that is a frozen plan or provides grandfathered benefits, or (D) to the extent prohibited by law or the plan documents.
(c) Parent will honor all obligations under the employment and change in control agreements that are substantially comparableidentified in Section 6.6(c)-A of the Seller Disclosure Schedule, except to the extent any such agreement is superseded or terminated as of, or following, the Effective Time. Concurrently with the execution of this Agreement, Parent shall obtain from those persons named in Section 6.6(c)-B of the Seller Disclosure Schedule, in the aggregateform included in Section 6.6(c)-C of the Parent Disclosure Schedule, an executed settlement agreement (a “Settlement Agreement”) to those accept full settlement of their rights under their respective employment agreements. Parent agrees that the change in control agreements noted in Schedule 6.6(c) - A of the Seller Disclosure Schedule will be paid out as of the Effective Time, without regard to each contracted employee’s continued employment by Parent or its Subsidiaries following the Effective Time. As noted in the change in control agreements listed on Schedule 6.6(c) - A of the Seller Disclosure Schedule, no payments will be made or benefits provided to the Continuing Employees immediately prior to contracted individuals in excess of each contracted individual’s 280G limit as set forth in Section 6.6(c)-C of the ClosingSeller Disclosure Schedule. Distribution of benefits in connection with the payment of the change in control benefits provided for under the change in control agreements set forth in Section 6.6(c) of the Seller Disclosure Schedule will be paid in accordance with the process set forth in Section 6.6(k) of the Seller Disclosure Schedule.
(bd) During Parent will honor the Protection Periodobligations set forth in the Seller Bank’s Employee Severance Compensation Plan, Parent shall or shall cause as amended effective January 15, 2018. In addition to severance provided under Sections 6.6(c) and 6.6(d) of this Agreement, the Surviving Company Corporation will cooperate with Seller to assume create a retention pool or other incentive bonus plan and honor the Company’s and pay retention bonuses to certain employees of Seller or its Subsidiaries’ obligations under all employmentSubsidiaries identified by Parent after consulting with Seller, severanceas critical to data processing or other transition tasks or who are otherwise determined by Parent to be key officers or employees. Retention bonuses may have a vesting term of up to one year, and with bonus agreementsforfeiture occurring for termination before vesting. Retention bonuses, if any, between the Company would be in addition to any bonus for which any former officer or a Subsidiary employee of Seller or its Subsidiaries may be eligible as an employee of the CompanySurviving Corporation or Parent Bank.
(e) Seller shall take all actions as are necessary, on including the one handadoption of Board of Directors or compensation committee resolutions or consents, and a Continuing Employeeto terminate Seller’s 401(k) plan, on effective no later than the other hand, day immediately prior to the Effective Time, with such termination to be subject to the occurrence of the Effective Time. Prior to taking any such action, Seller shall provide Parent with a copy of such resolutions or consent in connection with such plan termination, and shall consider any comments provided by Parent in good faith. To the extent applicable, Parent shall cause the 401(k) plan of Parent or its Subsidiaries to accept as soon as practicable cash rollover distributions from current and former employees of Seller and its Subsidiaries with respect to such individuals’ account balances (including loans to the extent permitted by Parent’s 401(k) plan), if elected by any such individuals.
(f) As soon as practicable after the date of this Agreement, Seller will request that the trustee(s) or other applicable named fiduciary of the ESOP (the “ESOP Trustee”) take all necessary actions required by the ESOP plan documents and applicable law, including, but not limited to, Section 409(e)(2) of the Code, to conduct a pass-through vote of the ESOP participants to direct the ESOP Trustee to vote the shares of stock owned by the ESOP either in favor or against the transactions contemplated by this Agreement (the “ESOP Vote”). Sellers will further request that the ESOP Trustee provide to Parent for its review and comment, reasonably in advance of the ESOP Vote, but in any event within the fifteen (15) business days after the initial filing of the S-4, all materials (including the information statement and any similar disclosure materials, frequently asked questions and meeting slides and/or handouts, but excluding the Proxy Statement) proposed to be disclosed to the MoneyGram Payment SystemsESOP participants in connection with the ESOP Vote. Sellers will consider in good faith, Inc. Severance Plan and request the ESOP Trustee to so consider, any and all comments provided by Parent as to the content, scope and suitability of the materials proposed to be disclosed.
(g) Seller shall take all actions necessary to terminate the ESOP, effective no later than the day immediately prior to the Effective Time. The accounts of all participants and beneficiaries in effect the ESOP as of the Effective Time shall become fully vested upon termination of the ESOP. At least three (3) days prior to the “Company Severance Plan”Effective Time, all outstanding indebtedness of the ESOP shall be repaid by delivering a sufficient number of unallocated shares of Seller Common Stock to Seller. At the Effective Time, any remaining shares of Seller Common Stock held by the ESOP Trust shall be converted into the right to receive the Merger Consideration, and the balance of the unallocated shares and any other unallocated assets remaining in the ESOP Trust after repayment of the ESOP loan shall be allocated as earnings to the accounts of the ESOP participants who are employed as of the date of termination of the ESOP based on their account balances under the ESOP as of the date of termination of the ESOP. Account balances will be distributed to ESOP participants after the receipt of a favorable determination letter from the IRS, unless otherwise required by law. Prior to the Effective Time, Seller shall take all such actions as are necessary (determined in consultation with Parent) to submit the application for favorable determination letter in advance of the Effective Time, and following the Effective Time, Parent shall use its best efforts in good faith to obtain such favorable determination letter as promptly as possible (including, but not limited to, making such changes to the ESOP as may be required by the IRS as a condition to its issuance of a favorable determination letter). Prior to the Effective time, Seller will adopt all amendments to the ESOP necessary or desirable to effect the provisions of this Section 6.6(g). If any further amendments to the ESOP are necessary or desirable to give effect to this Section 6.6(g), Parent shall adopt such amendments. Promptly following the receipt of a favorable determination letter from the IRS regarding the qualified status of the ESOP upon its termination, the account balances in the ESOP shall either be distributed to participants and beneficiaries or transferred to an eligible tax-qualified retirement plan or individual retirement account as a participant or beneficiary may direct. Notwithstanding anything herein to the contrary, Seller shall cause continue to accrue and make contributions to the Surviving Company ESOP trust from the date of this Agreement through the termination date of the ESOP in an amount sufficient (but not to provide exceed) the severance loan payments which become due in the ordinary course on the outstanding loans to the ESOP prior to the termination of the ESOP and benefits shall make a pro-rated payment on the ESOP loan for the 2018 Plan Year through and including the end of the calendar quarter immediately preceding the Closing, prior to the termination of the ESOP.
(h) Seller shall take all actions as are necessary, including the adoption of Board of Directors or compensation committee resolutions or consents, to terminate any or all of Seller’s welfare benefit plans (e.g. medical, long-term disability, and life insurance plans), effective no later than the day immediately prior to the Effective Time, with such termination to be subject to the occurrence of the Effective Time, except for the post-retirement health arrangements set forth in Section 6.6(i) of the Company Severance Plan Seller Disclosure Schedule. Prior to taking any Continuing Employees who are terminated during the Protection Period such action, Seller shall provide Parent with a copy of such resolutions or consent in connection with such plan termination, and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under consider any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained comments provided by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefitsgood faith. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any employees of Seller or its Subsidiaries who become employees of Parent Plan. Each Parent Plan on or after the Effective Time (“Continuing Employees”), no coverage of any Continuing Employee or their dependents shall waive pre-existing condition limitations and eligibility waiting periods terminate under any Seller welfare benefit plans prior to the same time such Continuing Employees or their dependents, as applicable, become eligible to participate in the New Plans common to all employees of the Parent and consequently no Continuing Employee shall experience a gap in health and welfare coverage.
(i) All of the non-qualified deferred compensation to which either Seller and/or Seller Bank is a party are identified on Section 3.11(e) of the Seller Disclosure Schedule. All such arrangements have been fully funded by Seller or fully accrued for on Seller’s books and records as of the date of this Agreement, except to the extent waived under reflected in “Unfunded Benefit Analysis” disclosed in Section 6.6(k) of the applicable PlanSeller Disclosure Schedule. The Continuing Employees Seller shall cause the Seller Bank to take any and all necessary actions to terminate the non-qualified deferred compensation arrangements noted in Section 3.11(e) of the Seller Disclosure Schedule at or immediately prior to the Effective Time in accordance with Section 409A of the Internal Revenue Code. From and after the Effective Time, such deferred compensation arrangements shall be given credit for amounts paid under a corresponding Plan terminated without any further accruals or increased obligations or further contributions by Parent, except as set forth in Section 6.6(i) of Seller Disclosure Schedule. Distribution of benefits in connection with the termination of the Company or any Subsidiary during non-qualified deferred compensation plans identified in Section 3.11(e) of the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid Seller Disclosure Schedule will be administered in accordance with the terms and conditions of the Parent Plan during respective plans and the applicable plan yearprocess set forth in Section 6.6(k) of the Seller Disclosure Schedule.
(dj) The provisions Nothing in this Agreement shall confer upon any employee, officer, director or consultant of this Section 5.6 are solely for Seller or any of its Subsidiaries or affiliates any right to continue in the benefit employ or service of the parties hereto and Surviving Corporation, Seller, or any Subsidiary or affiliate thereof, or shall interfere with or restrict in any way the rights of the Surviving Corporation, Seller, Parent or any Subsidiary or affiliate thereof to discharge or terminate the services of any employee, officer, director or consultant of Seller or any of its Subsidiaries or affiliates at any time for any reason whatsoever, with or without cause. Nothing in this Agreement shall be deemed to (i) establish, amend, or modify any Seller Benefit Plan, New Plan or any other benefit or employment plan, program, agreement or arrangement, or (ii) alter or limit the ability of the Surviving Corporation or any of its Subsidiaries or affiliates to amend, modify or terminate any particular Seller Benefit Plan, New Plan or any other benefit or employment plan, program, agreement or arrangement after the Effective Time. Without limiting the generality of the final sentence of Section 9.11, nothing in this Section 5.66.6, express or implied, is intended to or shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remediesperson, including any right to employment current or continued employment for former employee, officer, director or consultant of Seller or any specified periodof its Subsidiaries or affiliates, any right, benefit or compensation or benefits remedy of any nature or kind whatsoever under or by reason of this Agreement. Nothing in .
(k) In no event shall the expenses associated with the payments required of Seller and Seller Bank under Sections 6.6(c) and 6.6(i) of this Agreement exceed the liabilities currently reflected therefor on the financial statements of Seller by more than $3,060,000, as detailed on Section 5.6, express or implied, shall be deemed an amendment 6.6(k) of any Planthe Seller Disclosure Schedule.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to the Company Employees and its Subsidiaries to, (i) give those employees who are employees are, as of the Company or a Subsidiary of the Company at the Effective Time (such Company EmployeesTime, “Continuing Employees”), while such Continuing Employees remain employed by the Company and its Subsidiaries (the "Continuing Employees”) full credit for purposes of eligibility, vesting and benefit accruals under any employee benefit plans or a Subsidiaryarrangements maintained by Parent, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a any Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (collectively, the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company and its Subsidiaries; (ii) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan that is a comparable Planwelfare benefit plan that such employees may be eligible to participate in after the Effective Time; (iii) provide credit under any such welfare plan for any co-payments, deductibles and out-of-pocket expenditures for the remainder of the coverage period during which any transfer of coverage occurs; provided, however, that no such service shall not be recognized to the extent that such recognition would result in a the duplication of benefits. Notwithstanding ; and (iv) honor in accordance with their terms all employee benefit plans or arrangements maintained by the foregoing, Company immediately prior to the extent permitted under applicable lawEffective Time.
(b) As soon as administratively practicable after the Effective Time but no later than December 31, 2006, and subject to the immediately following sentence, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirementsshall, or shall cause the application Surviving Company and its Subsidiaries to, provide to the Continuing Employees compensation and benefit arrangements that are no less favorable in the aggregate than the compensation and benefit arrangements that are provided to similarly situated employees of Parent. As soon as practicable after the Effective Time, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, cause the Continuing Employees to commence participation in such Parent Plans as are provided to similarly situated employees of Parent. From and after the Effective Time, Parent and the Surviving Company shall keep in full force and effect, and comply with the terms and conditions of, any pre-existing condition limitations with respect agreement in effect as of the date of this Agreement between or among the Company or any of its Subsidiaries and any of its or their employees relating to severance pay or similar benefits.
(c) The provisions of this Section 8.6 are for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to Person (including for the same extent waived under the applicable Plan. The avoidance of doubt any Continuing Employees shall be given credit for amounts paid under a corresponding Plan Employees, present or former employees or directors, consultants or independent contractors of the Company or any Subsidiary during of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the same period Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for purposes in this Section 8.6) under or by reason of applying deductiblesany provision of this Agreement. Nothing contained in this Section 8.6 or elsewhere in the Agreement shall be construed to prevent, co-payments from and out-of-pocket maximums as though such amounts had been paid after the Effective Time, the termination of employment of any individual Continuing Employee or, subject to the provisions of Section 8.6(a), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular Plan in accordance with the terms and conditions of the Parent Plan during the applicable plan yearits terms.
(d) The provisions of this Section 5.6 are solely for Company shall, prior to the benefit of Effective Time, take all requisite action necessary to terminate the parties hereto Company’s 401(k) Savings and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remediesInvestment Plan, including any right notifying the participants that the 401(k) Savings and Investment Plan has been terminated; provided, that immediately following the Effective Time all Continuing Employees are permitted to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing participate in this Section 5.6, express or implied, shall be deemed an amendment of any Parent’s 401(k) Savings and Investment Plan.
Appears in 1 contract
Samples: Merger Agreement (Laserscope)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Parent shall, Parent shall or shall cause the Surviving Company to provide to and its Subsidiaries to,
(i) give those employees who are, as of the Effective Time, employed by the Company Employees who are employees of and its Subsidiaries (the Company or a Subsidiary of the Company at the Effective Time (such Company Employees, “Continuing Employees”)) full credit for purposes of determining eligibility and vesting (but not for purposes of any benefit accruals) under any Parent Benefit Plans or other arrangements maintained by Parent, while such Continuing Employees remain employed by including, but not limited to, vacation and paid time off accruals, the Surviving Company or a Subsidiary, (i) base salary any Subsidiary of Parent or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits Surviving Company (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)plans) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (collectively, the “Parent Plans”), if any, ) for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), such Continuing Employees’ service with the Company or any Subsidiary of its Subsidiaries (or any predecessor entity theretoentity) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Planand its Subsidiaries; provided(ii) waive all limitations as to preexisting conditions, however, that such service shall not be recognized exclusions and waiting periods with respect to participation and coverage requirements applicable to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes Continuing Employees under any employee benefit plan or arrangement of Parent Plan that is a defined welfare benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open such employees may be eligible to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or participate in after the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods Effective Time to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of by the Company and its Subsidiaries or otherwise not subject to a limitation by the Company and its Subsidiaries; (iii) provide credit under any Subsidiary during the same period such welfare plan for purposes of applying deductibles, any co-payments payments, deductibles and out-of-pocket maximums as though such amounts had been paid expenditures for the remainder of the coverage period during which any transfer of coverage of any Continuing Employee occurs; and (iv) honor in accordance with their terms all employee benefit plans or arrangements or collective bargaining agreements maintained by the Company immediately prior to the Effective Time.
(b) From a period of one (1) year from and after the Effective Time, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, provide to the Continuing Employees levels of compensation and benefit arrangements that are no less favorable in the aggregate than either the (i) levels of compensation and benefits provided to the continuing employees immediately prior to the Effective Time or (ii) the levels of compensation and benefit arrangements that are provided to similarly situated employees of Parent. By no later than January 1, 2019, Parent shall, or shall cause the Surviving Company and its Subsidiaries to, cause the Continuing Employees to commence participation in such Parent Plans as are provided to similarly situated employees of Parent, provided that such participation shall be subject to the terms of any collective bargaining agreement or similar contract covering any Continued Employee. From and after the Effective Time, Parent and the Surviving Company shall keep in full force and effect, and comply with the terms and conditions of, any employment, severance or change of control agreement (including, without limitation, any such agreements in the form of offer letters) in effect as of the date of this Agreement or entered into or amended after the date of this Agreement as approved by Parent Plan during in compliance with Section 6.2 hereof between or among the applicable plan yearCompany or any of its Subsidiaries and any of its or their employees.
(dc) The provisions of this Section 5.6 7.5 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including for the avoidance of doubt any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company or any of its Subsidiaries, Parent or any of its Subsidiaries, or on or after the Effective Time, the Surviving Company or any of its Subsidiaries), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.6, express 7.5) under or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits by reason of any nature or kind whatsoever under provision of this Agreement. Nothing contained in this Section 5.6, express 7.5 or implied, elsewhere in the Agreement shall be deemed an amendment construed to prevent, from and after the Effective Time, the termination of employment of any Planindividual Continuing Employee or, subject to the provisions of Sections 7.5(a) and 7.5(b), any change in the employee benefits available to any Continuing Employee or the amendment or termination of any particular Plan in accordance with its terms.
Appears in 1 contract
Samples: Merger Agreement
Employees; Employee Benefit Plans. (a) During Through the 12six month anniversary of the Effective Time (except as applicable Law or third party providers require otherwise), Parent and the Surviving Corporation will provide persons employed by the Related Employers at the Effective Time ("Company Employees") annual base compensation, incentive compensation (other than equity based compensation), and Benefit Plans and Benefit Arrangements (other than equity based compensation) that are, in the aggregate, at least as favorable as those in effect immediately before the Effective Time. For purposes of comparability, the parties agree that the determination shall not take into account any equity, equity-month based, or equity measured compensation nor the level of employee contributions in effect before the Effective Time, provided any contributions required after the Effective Time and during 2005 shall not be in excess of prevailing market levels. For purposes of any seniority or length of service requirements, waiting periods, vesting periods, or differential benefits based on length of service in any such plan or policy of Parent as of the Effective Time for which a Company Employee may be eligible after the Effective Time, Parent and the Surviving Corporation shall treat service by such employee with the Company as though it had been service with Parent for all purposes under any such plan or policy to the extent the Company credited such service under its similar plans, excluding vesting, benefit accruals, or accrual or account formulas under any Pension Plan maintained by Parent, so long as this crediting of service does not violate applicable Laws and is consistent with the rules governing Benefit Plans qualified under Section 401(a) of the Code and permitted by third-party administrators and insurers. Notwithstanding any other provision herein, no provision of this Agreement shall obligate any of Parent, the Surviving Corporation or any of its Affiliates to continue the employment of any Company Employee for any period following the Effective Time (or to refrain from revising the “Protection Period”), Parent shall terms of any such Company Employee's employment or shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary of the Company at the Effective Time (transferring any such Company Employees, “Continuing Employees”), while such Continuing Employees remain employed by the Company nor shall it prevent those entities from amending or a Subsidiary, (i) base salary terminating any Benefit Plan or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the ClosingBenefit Arrangement.
(b) During In addition:
(i) Any Company Employee covered by the Protection Period, Parent shall Management Incentive Plan ("MIP") or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary Annual Incentive Plan ("AIP") for Designated Corporate Officers ("Covered Employees") (each of the CompanyMIP and the AIP, as provided to Parent on the one handMay 11, and 2005) shall receive a Continuing Employee, on the other hand, immediately prior to 2005 bonus payable as follows. As of the Effective Time, including but all Covered Employees shall be credited with a bonus based on Payout Achievement Level as set forth on Section 6.7(b) of the Company Disclosure Schedule based on the Company's Net Income, as set forth in the MIP and the AIP, with payment of such bonuses to be made on or before March 15, 2006 (or such earlier date as may be required by applicable state Law), which payment shall be made whether or not limited a particular Covered Employee who is entitled to such bonus payment is employed at the MoneyGram Payment Systemstime of payment, Inc. provided that such Covered Employee has not been terminated for Cause (as defined in Section 6.7(b)(vi)) before the time of payment. In addition, all Covered Employees shall receive a prorated bonus on or before March 15, 2006 (or such earlier date as may be required by applicable state Law), to reflect the achievement of Individual Management Bonus Objectives ("MBOs") through the Effective Time, which shall be determined at the Effective Time by the Company in a manner consistent with the Company's past practice and agreed to by Parent (which agreement shall not be unreasonably withheld). By March 15, 2006 (or such earlier date as may be required by applicable state Law), all Covered Employees who are employed by Parent or its Affiliates with operations in the United States (the "U.S. Affiliates") as of December 31, 2005 shall receive a prorated bonus to cover the period from the Effective Time through December 31, 2005 ("Stub Period") and persons whose employment was terminated without cause will receive a prorated bonus for the shorter period during which the persons were employed during the Stub Period. Such prorated bonus will reflect the achievement of MBOs achieved by the Covered Employee during the Stub Period as determined by the Surviving Corporation in a manner consistent with the Company's past practice and agreed to by Parent (which agreement shall not be unreasonably withheld).
(ii) For a period of 12 months following the Effective Time, any Company Employees who are offered employment with Parent or its U.S. Affiliates that would require them to relocate to a different work location that is more than 40 miles from their current work location will be allowed to choose one of the following two options: (i) accept the position, in which case each such relocated Company Employee will be entitled to receive relocation benefits under the Company's relocation policy as in effect March 31, 2005, or (ii) decline the position and receive the severance benefit under the Company's Severance Plan as in effect on March 31, 2005, or, if applicable, as outlined in such employee's Change of Control Severance Agreement or Key Employee Severance Protection Agreement.
(iii) Any Company Employee terminated without Cause within 12 months following the Effective Time who is not otherwise covered by an individual agreement with respect to severance shall be eligible to receive severance under the Company's Severance Pay Plan (the “including, but not limited to, outplacement benefits) as in effect on March 31, 2005. For those Company Severance Plan”). Parent shall or shall cause Employees who receive severance benefits under this clause (iii) and who are then eligible for COBRA coverage, Parent, the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated Corporation, or their Affiliates will, during the Protection Period months in which each such severed Company Employee receives severance payments, pay that portion of the severed Company Employee's monthly COBRA insurance coverage costs equal to the amount of the monthly difference between (1) the severed employee's monthly COBRA cost and neither Parent nor (2) the Surviving Company shall decrease monthly amount that the severance payments severed employee would have paid to obtain medical and benefits payable dental coverage under the Company Severance Plan during applicable plans if the Protection Periodsevered employee were an active employee.
(civ) Following the Effective Time, all Company Employees shall be credited with the amount of their accrued but unused paid time off ("PTO") under the paid time off program (or equivalent) of Parent in effect at the Effective Time; provided that any Company Employee who has accrued but unused PTO in excess of the amount that may be credited under Parent's paid time off program (or equivalent) shall receive a payment, as soon as reasonably practical after the Effective Time, equal to the value of such excess accrued but unused PTO.
(v) Participants in the Company's Supplemental Executive Retirement Plans ("SERP") who are age 55 or older will receive a pro-rata payment to their SERP account at the Effective Time based on the expected Company annual contribution for 2005.
(vi) For all purposes (including for purposes of vestingthis Section 6.7(b), eligibility "Cause" shall mean a Company Employee's (A) failure to participate and level perform his/her material duties, which failure continues for ten (10) days after the Parent or Surviving Corporation has given written notice to the employee specifying in reasonable detail the manner in which the employee has failed to perform such duties; (B) commission of benefits an act or omission constituting (other than for vesting purposes under any equity-based x) a felony, (y) embezzlement, theft or incentive compensation Plan)) material dishonesty with respect to each applicable employee benefit plan sponsored the Surviving Corporation, Parent, or maintained by Parent their Affiliates, or (z) fraud; (C) commission of an act or omission that (x) could adversely and materially affect the Surviving Corporation's, Parent's, or their Affiliates' business or reputation, or (y) involves moral turpitude; or (D) breach, non-performance or non-observance of any restrictive covenant or any other written agreement with the Surviving Corporation, Parent, or their Affiliates prohibiting any or all of (x) the disclosure of confidential trade secrets and other information, (y) competitive activities or the Surviving Company (the “Parent Plans”), if any, for purposes solicitation of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirementscustomers, or (z) the application solicitation of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company employees or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearformer employees.
(d) The provisions of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”)Purchaser shall, Parent shall or shall cause its Subsidiaries and Related Persons (including, without limitation, the Surviving Company to Corporation) to, (i) provide to the Company Employees who are those employees of the Company or a Subsidiary who are, as of the Company at Effective Time, employed by the Effective Time Surviving Corporation (such Company Employees, or by Purchaser or any of its other Subsidiaries or Related Persons) (the “Continuing Employees”), while such Continuing Employees remain employed by ) with full credit for their prior service with the Company or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the Closing.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits and where length of service is relevant (including for purposes of vacation entitlement (but not for accrual of benefits accrual) under any defined employee benefit pension plan plans or post-retirement welfare benefit plan)arrangements maintained or sponsored by Purchaser or the Surviving Corporation, service with the Company or any Subsidiary or Related Person of Purchaser or Surviving Corporation, in which Continuing Employees participate or are eligible to participate (or any predecessor entity theretoin accordance with the term of such employee benefit plans and arrangements) shall be treated as service with after the Closing Date (the “Parent to the same extent recognized by the Company under a comparable PlanPlans”); provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, and (ii) to the extent permitted under applicable lawthe policy contracts, Parent shall not be required waive all limitations as to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan preexisting conditions exclusions (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any actively at work or similar limitations) and waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations periods with respect to participation and coverage requirements applicable to the Continuing Employees under any Parent Plan. Each Plan that is an "employee welfare benefit plan," within the meaning of Section 3(1) of ERISA (including, without limitation, all Parent Plan shall waive pre-existing condition limitations Plans that provide medical, dental, vision disability, and eligibility waiting periods to the same extent waived under the applicable Plan. The death benefits) in which Continuing Employees shall may be given credit for amounts paid under eligible to participate in after the Closing Date; except, in any case of clause (i) or (ii) above, where doing so would cause a corresponding Plan duplication of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearbenefits.
(db) The provisions of this Section 5.6 6.6 are solely for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (including any Continuing Employees, present or former employees or directors, consultants or independent contractors of the Company, Purchaser or any of its Related Persons, or, on or after the Effective Time, the Surviving Corporation), other than the parties hereto and nothing their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 5.66.6) under or by reason of any provision of this Agreement.
(c) Nothing contained in this Section 6.6 or elsewhere in this Agreement, express or implied, (i) shall confer upon constitute an amendment to any Employee Plan of the Company or (ii) shall be construed to prevent, from and after the Effective Time, the termination of employment of any Continuing EmployeeEmployee or, or legal representative or beneficiary thereofsubject to the provisions of Section 6.6(a), any rights change in the employee benefits available to any Continuing Employee or remedies, including any right to employment the amendment or continued employment for any specified period, or compensation or benefits termination of any nature particular Employee Plan or kind whatsoever Parent Plan in accordance with its terms.
(d) Purchaser shall pay the annual performance bonuses described under this Agreement. Nothing in this Section 5.6the caption “Annual Performance Bonuses” on Schedule 3.11(m) to the employees named thereon at the time specified therein, express provided that Purchaser shall not be required to pay an annual bonus to any employee who voluntarily terminates his or implied, shall be deemed an amendment her employment with the Surviving Corporation after the Effective Time and prior to the time specified for payment of any Plansuch bonuses.
Appears in 1 contract
Samples: Merger Agreement (Greatbatch, Inc.)
Employees; Employee Benefit Plans. (a) During the 12-month period As of or as soon as practicable following the Effective Time Time, the employees of SIB and its Subsidiaries (the “Protection Period”), Parent "SIB Employees") shall or shall cause the Surviving Company to provide to the Company Employees who are become employees of the Company ICBC or a Subsidiary thereof and shall be eligible to participate in the ICBC Plans in which similarly situated employees of ICBC or Independence Bank participate, to the Company same extent as similarly situated employees of ICBC or Independence Bank (it being understood that inclusion of SIB Employees in such employee benefit plans may occur at the Effective Time (such Company Employeesdifferent times with respect to different plans); provided, “Continuing Employees”)however, while such Continuing Employees remain employed by the Company or a Subsidiary, that (i) base salary nothing contained herein shall require ICBC or wages any of its Subsidiaries to make any grants to any SIB Employee under the ICBC Stock Option Plans or the ICBC 1998 Recognition and cash incentive compensation opportunities Retention Plan and Trust Agreement, it being understood that any such grants are no less favorablecompletely discretionary, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits nothing contained herein shall require ICBC or any of its Subsidiaries to permit a SIB Employee who is receiving severance as a result of the transactions contemplated by this Agreement pursuant to any employment, severance, consulting or other compensation agreements, plans and arrangements with SIB or any of its Subsidiaries to participate in any severance or change in control of agreement or plan offered by ICBC or any of its Subsidiaries, (other than any iii) nothing contained herein shall require an SIB Employee's participation in the ICBC defined benefit pension benefits or supplemental executive retirement plan benefitsand (iv) that are substantially comparable, nothing contained herein shall require an SIB Employee's participation in the aggregate, to those provided to the Continuing Employees immediately ICBC Employee Stock Ownership Plan prior to the ClosingJanuary 1, 2005.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with With respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if anyICBC Plan, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for participation or accrual of benefits under any the ICBC defined benefit pension plan or post-retirement welfare benefit plan), service with the Company SIB or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable PlanICBC; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent ICBC Plan. Each Parent ICBC Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable SIB Plan. The Continuing SIB Employees shall be given full credit for amounts paid under a corresponding Plan of the Company SIB or any Subsidiary benefit plan during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent ICBC Plan during the applicable plan year.
(c) As of the Effective Time, ICBC shall assume and honor and shall cause the appropriate Subsidiaries of ICBC to assume and honor in accordance with their terms all employment, severance and other compensation agreements, plans and arrangements existing immediately prior to the execution of this Agreement which are between SIB or any of its Subsidiaries and any officer or employee thereof and which have been disclosed in Section 4.11(a) of the SIB Disclosure Schedule, including without limitation bank-owned life insurance, other than those employment agreements covered by the Termination and Release Agreements referenced in Section 7.7(d) hereof. ICBC acknowledges and agrees that (i) the consummation of the Merger constitutes a "Change in Control" for all purposes pursuant to such agreements, plans and arrangements, and (ii) that the persons listed in Section 7.7(c) of the SIB Disclosure Schedule shall receive severance benefits as of the Effective Time pursuant to the employment and severance agreements entered into by such persons with SIB or its Subsidiaries, to the extent that such employment and severance agreements have been disclosed to ICBC in the SIB Disclosure Schedule and provided that such persons remain employed by SIB or its Subsidiaries as of the Effective Time. To the extent that an officer or employee of SIB or any of its Subsidiaries is entitled to the continued receipt of health insurance, life insurance, automobile allowance or other similar fringe benefits pursuant to any agreement set forth in Section 4.14(c) of the SIB Disclosure Schedule between SIB or any of its Subsidiaries, on the one hand, and any officer or employee of SIB or any of its Subsidiaries, on the other hand (the "Executive Agreements"), and such officer or employee becomes a director, officer, employee or consultant of ICBC or any of its Subsidiaries following the Effective Time and as a result becomes entitled to receive the same fringe benefits in his or her capacity as a director, officer, employee or consultant of ICBC or any of its Subsidiaries, then the fringe benefits provided to such person shall be deemed to be provided in connection with such person's service as a director, officer, employee or consultant of ICBC or any of its Subsidiaries for so long as such person serves in such capacity and shall be in lieu of, and not in addition to (and for the sole purpose to avoid duplication of benefits), the same fringe benefits that would have otherwise been provided pursuant to the Executive Agreement.
(d) Concurrently with the execution of this Agreement by the parties hereto, (i) each of Harry P. Doherty and James R. Coyle and SIB, SIBT and ICBC shall enter xxxx x Xxxxxxxxion axx Xxxxxxx Xxxeement substantially in the form of Exhibit A hereto, (ii) Mr. Doherty, ICBC and Independence Bank shall enter into an employment xxxxxxxxx substantially in the form of Exhibit B hereto, and (iii) Mr. Coyle, ICBC and Independence Bank shall enter into a noncompetitiox xxxxxxxnt substantially in the form of Exhibit C hereto.
(e) With respect to the SIB Employee Stock Ownership Plan (the "ESOP"), SIB shall:
(i) take any actions necessary to cause the ESOP to be terminated and for the balances in all Participant Accounts (as defined in the ESOP) to become fully vested and nonforfeitable as of the Effective Time;
(ii) cause the Trustee of the ESOP to sell a number of shares of ICBC Common Stock received in the Merger as is necessary to obtain cash at least equal to the remaining ESOP indebtedness;
(iii) cause the Trustee to use such cash to repay in full all such outstanding ESOP indebtedness;
(iv) cause the shares of ICBC Common Stock and/or any cash remaining in the suspense account maintained under the ESOP, after giving effect to the repayment of ESOP indebtedness referred to in subparagraph (iii) above, to be allocated to the accounts of all ESOP participants who have account balances as of the beginning of the ESOP plan year in which the ESOP is terminated, in accordance with the applicable provisions of the ESOP;
(v) cause the account balances of all ESOP participants to be distributed in a lump sum (or transferred in accordance with Section 401(a)(31) of the Code) as soon as practicable following the later of (A) the Effective Time or (B) the date of receipt of a favorable determination letter from the IRS regarding the qualified status of the ESOP upon its termination; and
(vi) adopt amendment(s) to the ESOP, in form and substance reasonably satisfactory to ICBC, as may be requested by the IRS in connection with the request for a determination letter.
(f) As soon as practicable after the date hereof, SIB shall file a request for a determination letter from the IRS regarding the continued qualified status of the ESOP upon its termination. Prior to the Effective Time, SIB and, following the Effective Time, ICBC shall use their respective reasonable best efforts to obtain such favorable determination letter (including, but not limited to, making such changes to the ESOP and the proposed allocation described herein as may be requested by the IRS as a condition to its issuance of a favorable determination letter). Neither SIB nor ICBC shall implement any of the actions described in Sections 7.7(d)(iv) and (v) above until receipt of such favorable determination letter.
(g) As of the Effective Time, each SIB Employee who is a participant in the SIB 401(k) Plan (the "SIB 401(k) Plan") shall become fully vested in his or her employer matching account balance in the SIB 401(k) Plan and the SIB 401(k) Plan will either (x) be merged into the ICBC 401(k) Plan (the "ICBC 401(k) Plan"), effective as of a date following the Effective Time, as selected by ICBC, or (y) if so elected by ICBC, terminated immediately prior to, on or after the Effective Time. The provisions determination as to whether the SIB 401(k) Plan shall be terminated or merged into the ICBC 401(k) Plan shall be made by ICBC. Effective as of the date of the merger of the SIB 401(k) Plan into the ICBC 401(k) Plan, if applicable, or the termination of the SIB 401(k) Plan (or the Effective Time, if subsequent to such termination), if applicable, SIB employees who are then participating in the SIB 401(k) Plan shall become participants in the ICBC 401(k) Plan.
(h) As soon as practicable after the execution of this Agreement, SIB will cooperate to cause the SIB Recognition Plan to be amended (including, without limitation, amending the SIB Recognition Plan to remove any provision that prohibits the termination of such plan prior to awarding all unallocated shares under such plan) and other necessary actions taken, in a manner reasonably acceptable to ICBC, to provide that (i) the SIB Recognition Plan will terminate upon the Effective Time and (ii) all unallocated shares of SIB Common Stock held in the trust under the SIB Recognition Plan will be cancelled upon the Effective Time and all assets relating to such unallocated shares will be distributed to SIB; provided, however, that any distribution of shares under the SIB Recognition Plan shall be effected in accordance with the requirements, if any, of federal and state securities laws and regulations. No action shall be taken that would adversely affect the rights of plan participants who hold outstanding grants or awards of shares of SIB Common Stock, whether before or after the Effective Time. No further grants or awards shall be made by SIB or its Subsidiaries under the SIB Recognition Plan following the date of this Agreement.
(i) ICBC agrees to honor the terms of each of the SIB SERPs which have been disclosed in Section 4.11 of the SIB Disclosure Schedule.
(j) Any person who is serving as an employee of either SIB or any Subsidiary thereof as of the date of this Agreement (other than those employees covered by either a written employment or severance agreement) whose employment is discontinued by ICBC or any of its Subsidiaries within one year after the Effective Time (unless termination of such employment is for Cause (as defined below)) shall be entitled to a severance payment from ICBC or its Subsidiary equal in amount to two week's base pay for each full year such employee was employed by SIB or a SIB Subsidiary or any successor or predecessor thereto, subject to a minimum of two weeks' severance and a maximum of 52 weeks' severance; provided that the benefits payable pursuant to this Section 7.7(j) shall be in lieu of, and not in addition to, any amounts that may have otherwise been payable pursuant to SIB's written severance policy described in Section 4.11(a) of the SIB Disclosure Schedule and subject to the terms and conditions set forth therein. For purposes of this Section 5.6 are solely for the benefit 7.7(j), "Cause" shall mean termination because of the parties hereto and nothing in this Section 5.6employee's personal dishonesty, express incompetence, willful misconduct, breach of fiduciary duty involving personal profit, intentional failure to perform stated duties or impliedwillful violation of any law, shall confer upon any Continuing Employeerule, or legal representative regulation (other than traffic violations or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plansimilar offenses).
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During Prior to the 12-month period following Initial Closing, the Effective Time (the “Protection Period”), Parent shall or Company shall cause the Surviving Company to provide to the Company Employees who are employees of the Company or a Subsidiary its Subsidiaries set forth in Section 5.13 of the Company at Disclosure Schedule to agree in writing that, notwithstanding anything to the Effective Time contrary (such Company Employeesincluding, “Continuing Employees”without limitation, the terms of any Plan), while none of them shall have “Good Reason” (as such Continuing Employees remain employed by term is defined in the applicable Plan) (including, without limitation, the applicable employee’s employment agreement with the Company or its Subsidiaries, as applicable) to terminate his or her employment solely as a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to result of the Continuing Employees immediately prior to consummation of the Closing and (ii) employee benefits (transactions contemplated by this Agreement and/or the other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to the ClosingTransaction Agreements.
(b) During Prior to the Protection PeriodInitial Closing and effective as of the Initial Closing, Parent the Company shall take all necessary or shall cause appropriate action to ensure that (i) to the Surviving extent practicable, any Persons holding Company Equity Awards are given advance notice of and afforded the rights required in connection with, the consummation of the transactions contemplated by this Agreement and the other Transaction Agreements, as required pursuant to assume the Company Stock Plans and honor the Company’s and its Subsidiaries’ obligations under all employment, severanceagreements related thereto, and bonus agreements(ii) all Company Equity Awards shall terminate on the Initial Closing Date as permitted under their terms, if anywithout any liability, between whether absolute or contingent, to the Purchaser, the Company or a Subsidiary any of the Company, its Subsidiaries on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Periodafter such termination.
(c) For As soon as reasonably practicable after the date hereof, the Company shall take all purposes actions necessary or appropriate (including for purposes i) to amend the Elk Associates Funding Corporation Simplified Employee Pension-Individual Retirement Account Terms, dated as of vestingApril 15, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company 1996 (the “Parent PlansSEP”) as required by applicable Law as of the date hereof (including, without limitation, the Economic Growth and Tax Relief Reconciliation Act of 2001, as amended) and (ii) to submit the SEP, as amended pursuant to Section 5.13(c)(i), if anyunder the Internal Revenue Service’s Voluntary Correction Program, for purposes a part of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoingEmployee Plans Compliance Resolution System, to cure the extent permitted under applicable law, Parent shall not be required failure to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or timely amend the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearSEP.
(d) The provisions of this Section 5.6 are solely for the benefit of the parties hereto and nothing in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) During the period commencing on the Closing Date and ending on the date which is twelve (12-month period following ) months after the Effective Time (the “Protection Period”)Closing Date, Parent shall or shall, and shall cause the Surviving Company to and its Subsidiaries to, provide to the Company Employees who are employees each employee of the Company or any of its Subsidiaries who remains employed immediately after the Closing (each a Subsidiary of the “Company at the Effective Time (such Company Employees, “Continuing EmployeesEmployee”), while such Continuing Employees remain employed by the Company or a Subsidiary, ) with: (i) base salary or hourly wages and cash incentive compensation opportunities that (such payment method to be determined at the Parent’s discretion) which are no less favorable, in each instance, to those than the base salary or hourly wages provided to by the Continuing Employees immediately prior to Company or the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in applicable Subsidiary of the aggregate, to those provided to the Continuing Employees Company immediately prior to the Closing; (ii) target bonus opportunities (excluding equity-based compensation), if any, which are no less than the target bonus opportunities (excluding equity-based compensation) provided by the Company or the applicable Subsidiary of the Company immediately prior to the Closing; (iii) retirement and welfare benefits that are no less favorable in the aggregate than those provided by the Company or the applicable Subsidiary of the Company immediately prior to the Closing; and (iv) severance benefits that are no less favorable than the practice, plan or policy in effect for such Company Continuing Employee immediately prior to the Closing. After the Closing, Parent shall cause the Surviving Company and its Subsidiaries to honor all rights to paid time off, including vacation, personal and sick days, accrued by Company Continuing Employees prior to the Closing under any Company Employee Plan.
(b) During the Protection Period, Parent shall or shall cause the Surviving Company to assume and honor the Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between the Company or a Subsidiary of the Company, on the one hand, and a Continuing Employee, on the other hand, immediately prior to the Effective Time, including but not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan With respect to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company its Affiliates (the collectively, “Parent Buyer Benefit Plans”), if anyin which any Company Continuing Employees will be eligible to participate effective as of the Closing, for purposes of determining eligibility Parent shall, or shall cause its applicable Affiliate to participate(subject to Section 6.6(a)(iii) above), vesting(i) waive all pre-existing conditions, entitlement exclusions and waiting periods with respect to benefits participation and vacation entitlement (but not for accrual of benefits coverage requirements applicable to such Company Continuing Employee under any defined benefit pension plan such Buyer Benefit Plan in which such Company Continuing Employee may be eligible to participate on or postafter the Closing, except to the extent such pre-retirement welfare benefit plan)existing conditions, exclusions or waiting periods would apply under the analogous Company Employee Plan; (ii) if commercially practicable, provide each such Company Continuing Employee with credit for any payments made under any cost-sharing provisions prior to the Closing or in the year in which such Company Continuing Employee commences participation in such Buyer Benefit Plan (to the same extent such credit was given under the analogous Company Employee Plan prior to the Closing) in satisfying any applicable cost-sharing provisions in any Buyer Benefit Plan in which such Company Continuing Employee may be eligible to participate on or after the Closing; (iii) recognize all service of the Company Continuing Employees with the Company or any the applicable Subsidiary of the Company (or any its applicable predecessor entity theretoentity) shall be treated as if such service were with Parent or its Affiliate for vesting and eligibility purposes in any Buyer Benefit Plan in which such Company Continuing Employees may be eligible to participate on or after the same extent recognized by the Company under a comparable PlanClosing; provided, however, that such service shall not be recognized to the extent that (x) such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for benefits or (y) such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived was not recognized under the applicable corresponding Company Employee Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan year.
(dc) The provisions Parent agrees that Parent and the Surviving Corporation shall be solely responsible for satisfying the continuation coverage requirements of this Section 5.6 are solely for the benefit 4980B of the parties hereto and nothing Code for all individuals who are “M&A qualified beneficiaries” as such term is defined in this Treasury Regulation Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Plan54.4980B-9.
Appears in 1 contract
Samples: Merger Agreement (Resmed Inc)
Employees; Employee Benefit Plans. (a) During the 12-month period following the Effective Time (the “Protection Period”), Parent shall or Purchaser shall cause each of the Surviving Company Initial Acquired Companies and Subsequent Acquired Companies, if any, to provide employ on the applicable Closing Date or continue to employ on the Company Employees who are applicable Closing Date all of the employees of the such Acquired Company or a Subsidiary (as applied to any such Acquired Company, "CONTINUING EMPLOYEES") on terms and conditions of the Company at the Effective Time (such Company Employeesemployment, “Continuing Employees”)including pay levels, while such Continuing Employees remain employed by the Company or a Subsidiaryjob descriptions and benefits, that are substantially similar in all material respects either (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees terms and conditions of employment immediately prior to the Closing and Date or (ii) to the terms and conditions of employment that apply to similarly situated employees of Purchaser. The foregoing covenant of Purchaser shall not restrict or limit in any manner Purchaser's management of the business of the Initial Acquired Companies or Subsequent Acquired Companies, if any, after the applicable Closing nor require Purchaser to retain any Continuing Employee for any period of time after the applicable Closing Date or to maintain any particular pay levels, job descriptions or benefits or other terms and conditions of employment for them; PROVIDED, HOWEVER, that Purchaser shall be responsible for any and all notices, liabilities, costs, payments and expenses arising from any action by Purchaser (including breach of contract, defamation or retaliatory discharge) regarding any employee benefits of an Initial Acquired Company or Subsequent Acquired Company, if any, or any Continuing Employee, including any such liability (i) under any applicable Law that relates to employees, employee benefit matters or labor matters, (ii) for dismissal, wrongful termination or constructive dismissal or termination, or severance pay or other termination pay, or (iii) under or with respect to any benefit plan, program, contract, policy, commitment or arrangement of the Acquired Companies, including the Retention Plans maintained by the Acquired Companies (collectively, "EMPLOYEE BENEFIT PLANS") or under and with respect to the Retention Plans (other than those maintained by the Acquired Companies) to the extent such Retention Plans provide payments or benefits with respect to any defined benefit pension benefits Continuing Employee; PROVIDED, HOWEVER, that Purchaser shall not be responsible for any costs, payments or supplemental executive retirement plan benefits) expenses under or with respect to the Retention Plans to the extent that are substantially comparablesuch costs, payments and/or expenses exceed, in the aggregate, Twenty Five Million Dollars ($25,000,000), subject to those provided reductions, if any, pursuant to the Continuing Employees immediately prior to terms of the ClosingRetention Plans.
(b) During Prior to the Protection Periodapplicable Closing Date, Purchaser may notify Seller Parent shall that Purchaser desires to make employment offers, effective as of the applicable Closing Date, to certain identified employees of the BellSouth Entities who provide services with respect to any Initial Acquired Company or shall cause the Surviving Company to assume and honor the Subsequent Acquired Company’s and its Subsidiaries’ obligations under all employment, severance, and bonus agreements, if any, between and shall provide Seller Parent with a list of such individuals. If Seller Parent consents thereto, which consent shall not be unreasonably withheld, Purchaser shall be entitled to make such offers of employment and Seller Parent shall, or shall cause its applicable Affiliates to, provide Purchaser with reasonable access to such employees for purposes of making the employment offers; PROVIDED, HOWEVER, that if any employee for whom Purchaser desires to make an employment offer also provides services with respect to any Acquired Company or a Subsidiary that is not the subject of the CompanyInitial Closing or any Subsequent Closing, on the one hand, and Sellers Parent's refusal to consent to such employment offer shall not be deemed unreasonable. Any person who accepts Purchaser's offer of employment made pursuant to this subsection (b) shall be treated as a Continuing EmployeeEmployee for purposes of this SECTION 6.13.
(c) Subject to SECTION 6.5(d), on after the applicable Closing Date, Sellers shall be responsible for all relocation costs arising as a result of returning to their home country any expatriates or impatriates (other handthan those who are Continuing Employees) who, immediately prior to the Effective Timeapplicable Closing Date, provide services to an Acquired Company that is the subject of a Closing Date, including but not limited severance payments. The applicable Acquired Company agrees to honor, perform and be liable for, and, to the MoneyGram Payment Systemsextent necessary, Inc. Severance Plan as in effect as of the Effective Time (the “Company Severance Plan”). Parent shall or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(c) For assume, all purposes (including for purposes of vesting, eligibility to participate and level of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”)obligations, if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived retention bonuses under the applicable Plan. The Retention Plans payable to or on behalf of those persons described in the preceding sentence, including, for this purpose, those persons who are Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan during the applicable plan yearEmployees.
(d) The provisions After the applicable Closing Date, Purchaser agrees that each Initial Acquired Company or Subsequent Acquired Company, if any, or Purchaser shall honor, pay, perform and be liable for and, to the extent applicable, shall assume, (i) all obligations and liabilities under and with respect to all Employee Benefit Plans, (ii) all benefits and payments to, or with respect to, employees or former employees required under applicable Law, including the workers' compensation and other obligations of such Acquired Company under labor and employment Laws, (iii) all Tax equalization, reimbursements, retention and similar charges and costs, and all other liabilities related to expatriates who, at the direction of the BellSouth Entities, worked for or provided services to such Acquired Companies (including all liabilities and obligations for retention bonuses under the Retention Plans) and (iv) all liabilities and obligations under and with respect to the employment agreements set forth on SCHEDULE 6.13(d). If Sellers pay any amounts described in clause (iii) of this Section 5.6 SECTION 6.13(d), Purchaser shall, or shall cause the applicable Acquired Company for which the expatriate provided services immediately prior to the applicable Closing Date to, reimburse Sellers for such amounts.
(e) It is understood and agreed that all provisions contained in this Agreement with respect to employee benefit plans or employee compensation are solely included for the sole benefit of the respective parties hereto and nothing do not and shall not create any right in this Section 5.6, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remediesother Person, including any right to employment participant in any Employee Benefit Plan or continued employment for any specified period, other employee benefit or compensation plan or benefits any beneficiary thereof or any employee or former employee of any nature Initial Acquired Company or kind whatsoever under this Agreement. Nothing in this Section 5.6Subsequent Acquired Company, express or implied, shall be deemed an amendment of any Planif any.
Appears in 1 contract
Employees; Employee Benefit Plans. (a) Buyer and its Affiliates shall have the right, but not the obligation, in Buyer’s sole and absolute discretion to make offers of employment at any time to any Business Employee. During the 12-month period following the Effective Time (the “Protection Interim Period”), Parent shall or and without limiting Section 7.2 hereof in any way, Seller Parties shall, and shall cause the Surviving Company their Affiliates to, provide Buyer and its Affiliates with reasonable access to provide those facilities and personnel records, to the Company Employees who are employees extent not prohibited by Law, in order to permit them to consider for employment, and to conduct employment interviews with, any of the Company or a Subsidiary Business Employees, and shall permit Buyer and its Affiliates to conduct employment interviews with any of the Company at Business Employees on terms reasonably acceptable to Seller Parties and Buyer during the Effective Time (such Company EmployeesInterim Period, “Continuing Employees”), while such Continuing Employees remain employed by the Company regarding prospective employment with Buyer or a Subsidiary, (i) base salary or wages and cash incentive compensation opportunities that are no less favorable, in each instance, to those provided to the Continuing Employees immediately prior to the Closing and (ii) employee benefits (other than any defined benefit pension benefits or supplemental executive retirement plan benefits) that are substantially comparable, in the aggregate, to those provided to the Continuing Employees immediately prior to its Affiliates after the Closing.
(b) During An offer of employment from Buyer or one of its Affiliates to any Business Employee (i) shall not constitute any Contract (expressed or implied) on the Protection Period, Parent shall part of Buyer or shall cause the Surviving Company its Affiliates to assume and honor the Company’s and a post-Closing employment relationship of any fixed term or duration or upon any terms or conditions other than those that Buyer may (in its Subsidiaries’ obligations under all sole discretion) establish pursuant to individual offers of employment, severanceand (ii) is “at will.” Nothing in this Agreement will be deemed to prevent or restrict in any way the right of Buyer or its Affiliates to terminate, and bonus agreementsreassign, if any, between the Company promote or a Subsidiary demote any of the CompanyHired Employees at any time or to change adversely or favorably the title, on the powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment of such employees unless otherwise provided in any employment agreement entered into between Buyer or one hand, of its Affiliates and a Continuing Hired Employee, on . “Hired Employees” means those Business Employees who (A) are employed by either Subsidiary as of the other hand, immediately Closing Date and with respect to whom Buyer or one of its Affiliates has not given written notice to any Seller Party or any of their Affiliates prior to the Effective Time, including but Closing Date that the employment of such individual should not limited to the MoneyGram Payment Systems, Inc. Severance Plan as in effect be continued as of or after the Effective Time Closing Date (the “Company Severance PlanAcquired Subsidiary Employees”). Parent shall ) or shall cause the Surviving Company to provide the severance payments and benefits set forth in the Company Severance Plan to any Continuing Employees who are terminated during the Protection Period and neither Parent nor the Surviving Company shall decrease the severance payments and benefits payable under the Company Severance Plan during the Protection Period.
(cB) For all purposes (including for purposes timely accept written offers of vesting, eligibility to participate and level employment with Buyer or one of benefits (other than for vesting purposes under any equity-based or incentive compensation Plan)) with respect to each applicable employee benefit plan sponsored or maintained by Parent or the Surviving Company (the “Parent Plans”), if any, for purposes of determining eligibility to participate, vesting, entitlement to benefits and vacation entitlement (but not for accrual of benefits under any defined benefit pension plan or post-retirement welfare benefit plan), service with the Company or any Subsidiary (or any predecessor entity thereto) shall be treated as service with Parent to the same extent recognized by the Company under a comparable Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Notwithstanding the foregoing, to the extent permitted under applicable law, Parent shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan or arrangement of Parent that is a defined benefit pension plan, postretirement welfare plan or grandfathered plan (or other plan that is no longer open to new participants). Such service also shall apply for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations with respect to any Parent Plan. Each Parent Plan shall waive pre-existing condition limitations and eligibility waiting periods to the same extent waived under the applicable Plan. The Continuing Employees shall be given credit for amounts paid under a corresponding Plan of the Company or any Subsidiary during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid its Affiliates in accordance with the terms of such offers and conditions who actually perform services for, and become employees, of Buyer or one of its Affiliates following the effective termination date of such individual’s employment with any Seller Party or any of their Affiliates (as applicable). Seller Parties shall, and shall cause their Affiliates to, (w) use commercially reasonable efforts to cooperate with and assist Buyer and its Affiliates in their efforts to hire any Business Employees to whom they may make (or may seek to make) offers of employment, subject to the terms of this Agreement, (x) not engage in any conduct, either individually or indirectly in conjunction with or through any other Person, that could reasonably be expected to dissuade or prevent any Business Employee from accepting, or that could reasonably be expected to affect any Business Employee’s ability to accept, any offer of employment or engagement made by Buyer or one of its Affiliates, (y) accept the resignation or terminate the employment of each Hired Employee (other than an Acquired Subsidiary Employee) effective as of the Parent Plan during the applicable plan year.
Closing Date and (dz) The provisions of this Section 5.6 are solely for the benefit take all necessary action to ensure that, effective as of the parties hereto and nothing in this Section 5.6Closing Date, express or implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits the only employees of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.6, express or implied, shall be deemed an amendment of any Planthe Subsidiaries are the Acquired Subsidiary Employees.
Appears in 1 contract
