Employment and Benefit Arrangements. (a) During the period commencing at the Closing and ending on the date which is twelve (12) months from the Closing, Buyer shall and shall cause the Company to provide each employee of the Company or the Company Subsidiaries who remains employed immediately after the Closing, excluding, for the avoidance of doubt, the Indian Employees (“Company Continuing Employee”), with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Company Continuing Employee immediately prior to the Closing, (ii) eligibility to participate in a Buyer 401(k) Plan on terms not less favorable than those provided to such Company Continuing Employee under a Seller 401(k) Plan immediately prior to the Closing, and (iii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Company Continuing Employee immediately prior to the Closing. With respect to any Company Continuing Employee whose employment is terminated without Cause by the Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of immediately prior to the Closing Date (determined under the severance practice described on Schedule 3.20 of the Company Disclosure Schedule). (b) With respect to any employee benefit plan, program, arrangement, agreement, policy or commitment sponsored or maintained by the Buyer, in which any Company Continuing Employee participate on or after the Closing, the Buyer shall cause the Company and the Company Subsidiaries to: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employees, except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan in effect immediately prior to the Closing; (ii) provide each such Company Continuing Employee with credit for any co-payments and deductibles paid (to the same extent such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service of the Company Continuing Employee with the Company or the Company Subsidiaries, as applicable, for all purposes (including, without limitation, for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay defined benefit pension plan) under any benefit plan, program, arrangement, agreement, policy or commitment in which the Company Continuing Employee may be eligible to participate after the Closing; provided that the foregoing shall not apply to the extent it would result in a duplication of benefits. This Section 8.01 shall survive the Closing, is intended to benefit the Company and the employees of the Company and the Company Subsidiaries, and shall be binding on all successors and assigns of the Buyer and the Company. (c) Effective as of the Closing, Buyer shall establish participation by the Company Continuing Employees in a tax-qualified defined contribution plan (the “Buyer 401(k) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or its Affiliates (collectively, the “Seller 401(k) Plans”). As soon as practicable after the Closing Date, the Seller 401(k) Plans shall, to the extent permitted by Section 401(k)(10) of the Code, make distributions available to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee. (d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes. (e) Except as otherwise specifically provided in this Section 8.01, none of Buyer, its Affiliates, the Company or the Company Subsidiaries shall have any liability or obligation with respect to any employee benefit plan or arrangement of the Seller or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans. (f) On or immediately prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to (i) issue offer letters of employment to the Indian Employees, (ii) inform the Indian Employees that, as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947. (g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, and shall not, (i) be treated as an establishment, amendment or other modification of any Employee Benefit Plan or any employee benefit plan of Buyer or any of its Affiliates, or shall limit the right of the Buyer or any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon any Persons other than the Seller and the Buyer (including, without limitation, any Company Continuing Employee, former employee of the Company or any participant in any Employee Benefit Plan or any benefit plan of the Buyer or any of its Affiliates, or any dependent or beneficiary thereof), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreement.
Appears in 1 contract
Employment and Benefit Arrangements. (a) During the For a period commencing at of one (1) year following the Closing and ending on (or, if earlier, the date which is twelve (12) months from of the ClosingCompany Group Employee’s termination), Buyer shall and shall provide or cause to be provided to the Company to provide each employee individuals who are employed by any member of the Company or Group as of the Closing Date and who continue to be employed by any member of the Company Subsidiaries who remains employed Group immediately after following the Closing, excluding, for the avoidance of doubtClosing (collectively, the Indian Employees (“Company Continuing EmployeeGroup Employees”), with (i) an annual base salary or an hourly base wage rate, as applicable, and target annual or shorter-term cash incentive compensation opportunity, in each case, opportunities that is not less than that provided to such Company Continuing Employee immediately prior to the Closing, (ii) eligibility to participate in a Buyer 401(k) Plan on terms not less are at least as favorable than as those provided to such the Company Continuing Employee under a Seller 401(k) Plan immediately prior to the Closing, and (iii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Company Continuing Employee immediately prior to the Closing. With respect to any Company Continuing Employee whose employment is terminated without Cause by the Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of Group Employees immediately prior to the Closing Date and (determined ii) employee benefits (excluding severance, equity or equity-based or long-term incentive compensation, retention, transaction-based, defined benefit pension, nonqualified deferred compensation, post-employment or retiree welfare benefits, collectively the “Excluded Benefits”) that are substantially comparable in the aggregate to (A) those employee benefits (other than the Excluded Benefits) provided to the Company Group Employees under the severance practice described Employee Plans as set forth on Schedule 3.20 4.10(a), (B) the employee benefits (other than the Excluded Benefits) provided by Buyer to its similarly situated employees or (C) a combination of clauses (A) and (B), as determined by Buyer. Buyer shall ensure that any employee benefit plans or programs it, any member of the Company Disclosure Schedule)Group or any Subsidiary of Buyer maintains or adopts with respect to the Company Group Employees (other than the Excluded Benefits) in which a Company Group Employee participates on or after the Closing (the “Buyer Plans”) treat employment with the applicable member of the Company Group or Subsidiary of Buyer prior to the Closing Date the same as employment with Buyer, the applicable member of the Company Group or Subsidiary of Buyer from and after the Closing Date for purposes of eligibility, vesting and vacation accrual, to the same extent and for the same purpose as such employment is credited under the comparable Employee Plan immediately prior to Closing and except where duplication of compensation or benefits would result. For the plan year that includes the Closing, Buyer shall use commercially reasonable efforts to cause to be waived pre-existing condition limitations, exclusions or waiting periods applicable with respect to group health Buyer Plans to the extent that such limitations, exclusions or waiting periods exceed those in effect under such analogous Employee Plans maintained by the applicable member of the Company Group as of the Closing Date. For the plan year that includes the Closing, Buyer shall use commercially reasonable efforts to cause to be recognized under any group health Buyer Plan, for purposes of satisfying any deductible, co-insurance and out-of-pocket maximums, any payment made by such Company Group Employee prior to the Closing Date toward deductibles, co-insurance and out-of-pocket maximums under any analogous Employee Plan, to the same extent such payments were credited for such purposes under the analogous Employee Plan.
(b) With respect to any employee benefit plan, program, arrangement, agreement, policy or commitment sponsored or maintained by the Upon Buyer, in which any Company Continuing Employee participate on or after the Closing, the Buyer shall cause the Company and the Company Subsidiaries to: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employees, except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan in effect immediately prior to the Closing; (ii) provide each such Company Continuing Employee with credit for any co-payments and deductibles paid (to the same extent such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service of the Company Continuing Employee with the Company or the Company Subsidiaries, as applicable, for all purposes (including, without limitation, for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay defined benefit pension plan) under any benefit plan, program, arrangement, agreement, policy or commitment in which the Company Continuing Employee may be eligible to participate after the Closing; provided that the foregoing shall not apply to the extent it would result in a duplication of benefits. This Section 8.01 shall survive the Closing, is intended to benefit the Company and the employees of the Company and the Company Subsidiaries, and shall be binding on all successors and assigns of the Buyer and the Company.
(c) Effective as of the Closing, Buyer shall establish participation ’s written request received by the Company Continuing Employees in a tax-qualified defined contribution plan Group no later than five (the “Buyer 401(k5) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or its Affiliates (collectively, the “Seller 401(k) Plans”). As soon as practicable after the Closing Date, the Seller 401(k) Plans shall, to the extent permitted by Section 401(k)(10) of the Code, make distributions available to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee.
(d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically provided in this Section 8.01, none of Buyer, its Affiliates, the Company or the Company Subsidiaries shall have any liability or obligation with respect to any employee benefit plan or arrangement of the Seller or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately Business Days prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India Company Group shall, at least one (1) Business Day prior to the Closing Date, adopt written resolutions (or take other necessary and appropriate action) to (i) issue offer letters terminate each Employee Plan that is intended to be qualified under Section 401(a) of employment to the Indian EmployeesCode, (ii) inform cease contributions to such Employee Plan, (iii) fully vest all participants under such Employee Plan, such termination, cessation, and vesting to be effective no later than the Indian Employees thatBusiness Day preceding the Closing Date and (iv) make to such Employee Plan all contributions that would have been made had the Transactions not occurred, pro-rated for the portion of the plan year ending as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Company Group shall provide Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right an advance copy of such employees to separation pay, or the occurrence of proposed resolutions (and any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employerrelated documents) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary a reasonable opportunity to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately comment thereon prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947adoption or execution.
(gc) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 8.4 are not intended to, solely for the benefit of the Parties and no employee or former employee or any other individual shall not, be regarded for any purpose as a third-party beneficiary of this Section 8.4 or have any cause of action or claim based on this Section 8.4. In no event shall the terms of this Agreement be deemed to (i) be treated as an establishmentestablish, amendment amend or modify any Employee Plan, Buyer Plan, or any other modification benefit or compensation plan, program, agreement or arrangement; (ii) following the Closing alter or limit the ability of any member of the Company Group, Buyer, or any of their respective Affiliates, as applicable, to amend, modify, or terminate any Employee Benefit Plan, any Buyer Plan or any employee benefit plan of Buyer or any of its Affiliates, or shall limit the right of the Buyer or any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closingor compensation plan, program, policy, agreement or arrangement; or (iiiii) confer upon any Persons other than the Seller and the Buyer (including, without limitation, any Company Continuing Employeeemployee, former employee employee, or any other individual any right to employment or continued employment, benefits or continued service with any member of the Company or any participant in any Employee Benefit Plan or any benefit plan of the Buyer Group, Buyer, or any of its their respective Affiliates, or any dependent or beneficiary thereof), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreement.
Appears in 1 contract
Samples: Purchase Agreement (Gogo Inc.)
Employment and Benefit Arrangements. (a) During the period commencing at the Closing From and ending on the date which is twelve (12) months from the Closing, Buyer shall and shall cause the Company to provide each employee of the Company or the Company Subsidiaries who remains employed immediately after the Closing, excludingthe Purchaser shall, for or shall cause the avoidance of doubtAcquired Companies to, the Indian Employees (“Company Continuing Employee”)honor all employment, with (i) an annual base salary or an hourly wage rateseverance, as applicabletermination, consulting, retirement and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Company Continuing Employee immediately prior to the Closing, (ii) eligibility to participate in a Buyer 401(k) Plan on terms not less favorable than those provided to such Company Continuing Employee under a Seller 401(k) Plan immediately prior to the Closing, and (iii) other compensation opportunities and employee benefitsbenefit plans, programs, policies, contracts, arrangements and agreements that are, in the aggregate, substantially comparable to those provided to such Company Continuing Employee immediately prior to the Closing. With respect to any Company Continuing Employee whose employment is terminated without Cause by the Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of immediately prior to the Closing Date (determined under the severance practice described on Schedule 3.20 of the Company Disclosure Schedule).
(b) With respect to any employee benefit plan, program, arrangement, agreement, policy or commitment are sponsored or maintained by the Buyer, in Business or to which any Company Continuing Employee participate of the Acquired Companies is a party, as such plans, programs, policies, contracts, arrangements and agreements are in effect on the date hereof (it being understood that this Section 7.03 shall not be deemed to prohibit the Purchaser from amending, modifying, replacing or after terminating such arrangements in accordance with their terms or applicable Law following the Closing). For the period commencing at Closing and ending on December 31, 2021, the Buyer Purchaser shall, or shall cause the Acquired Companies to, provide to all employees of the Business who are employed by an Acquired Company immediately after the Closing and the Company Subsidiaries to: Direct Transfer Employees (i“Continuing Employees”) (a) base salary or wage rate and bonus and incentive opportunities that are substantially comparable in the aggregate to the base salary or wage rate and bonus and incentive opportunities provided to similarly-situated employees of the Purchaser and (b) benefits that are substantially comparable in the aggregate to the benefits provided to similarly-situated employees of the Purchaser. The Purchaser shall use its reasonable best efforts to cause the Continuing Employees to receive service credit for all purposes under any benefit or compensation plans, programs, policies, contracts, agreements and arrangements sponsored by the Purchaser or any of its Affiliates (including the Acquired Companies) in which the Continuing Employees participate or may become eligible to participate following the Closing (other than any equity-based plan or arrangement) (the “Purchaser Plans”). The Purchaser shall waive all or cause to be waived any applicable waiting periods, pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employees, except to the extent such pre-existing conditions, condition exclusions or waiting periods applied actively-at-work requirements under the similar plan in effect immediately prior to Purchaser Plans for the Closing; (ii) provide each Continuing Employees and their dependents and shall give such Company Continuing Employee with Employees credit under the Purchaser Plans for any deductibles, co-payments insurance and deductibles paid (to the same extent such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service of payments that have been paid during the Company Continuing Employee with the Company or the Company Subsidiaries, as applicable, for all purposes (including, without limitation, for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay defined benefit pension plan) under any benefit plan, program, arrangement, agreement, policy or commitment year in which the Company Continuing Employee may be eligible to participate after the Closing; provided Closing occurs. The Purchaser agrees that the foregoing shall not apply to the extent it would result in a duplication of benefits. This Section 8.01 shall survive the Closing, is intended to benefit the Company Purchaser and the employees of the Company and the Company Subsidiaries, and shall be binding on all successors and assigns of the Buyer and the Company.
Acquired Companies (c) Effective as of the Closing, Buyer shall establish participation by the Company Continuing Employees in a tax-qualified defined contribution plan (the “Buyer 401(k) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or its Affiliates (collectively, the “Seller 401(k) Plans”). As soon as practicable after the Closing Date, the Seller 401(k) Plans shall, to the extent permitted by Section 401(k)(10) of the Code, make distributions available to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee.
(d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically provided in this Section 8.01, none of Buyer, its Affiliates, the Company or the Company Subsidiaries shall have any liability or obligation with respect to any employee benefit plan or arrangement of the Seller or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to (i) issue offer letters of employment to the Indian Employees, (ii) inform the Indian Employees that, as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as solely responsible for satisfying the continuation coverage requirements of Section 4980B of the Deferred Closing Date, it being understood that Code for all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of individuals who are “M&A qualified beneficiaries” as such term is defined in Treasury Regulation Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 194754.4980B-9.
(g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, and shall not, (i) be treated as an establishment, amendment or other modification of any Employee Benefit Plan or any employee benefit plan of Buyer or any of its Affiliates, or shall limit the right of the Buyer or any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon any Persons other than the Seller and the Buyer (including, without limitation, any Company Continuing Employee, former employee of the Company or any participant in any Employee Benefit Plan or any benefit plan of the Buyer or any of its Affiliates, or any dependent or beneficiary thereof), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (TELUS International (Cda) Inc.)
Employment and Benefit Arrangements. (a) At Closing, the Company shall take all necessary action to (i) cancel and terminate all unexercised stock appreciation rights issued and outstanding under the terms of the Alliance Healthcare Services, Inc. 2018 Stock Appreciation Right Plan (“SAR Plan”) under the provisions of Section 6(b)(i) of the SAR Plan, and (ii) accelerate payment of all amounts owed as a retention bonus under those Plan agreements identified on Schedule 3.15(a) to be paid at Closing; provided, that all amounts required to be paid for the cancellation and termination of such stock appreciation rights (if any) and owed as retention bonus amounts shall constitute a Seller Expense for purposes of this Agreement.
(b) During the twelve month period commencing at the Closing and ending on the date which is twelve (12) months from following the Closing, Buyer shall and the Purchaser shall cause the Company and its Subsidiaries to provide each employee ensure that employees of the Company or and its Subsidiaries as of the Company Subsidiaries Closing Date who remains remain employed immediately after the Closing, excluding, for the avoidance of doubt, the Indian Employees Closing Date (“Company Continuing EmployeeEmployees”), with (i) an annual receive base salary or an hourly wage rate, as applicable, compensation and annual cash incentive compensation opportunity, in each case, bonus opportunities that is not are no less favorable than that provided (as previously disclosed to such Company Continuing Employee Purchaser) immediately prior to the ClosingClosing Date, and (ii) eligibility to participate in a Buyer 401(k) Plan on terms not less favorable than those provided to such Company Continuing Employee under a Seller 401(k) Plan immediately prior to the Closing, and (iii) other compensation opportunities and employee benefits, receive benefits that areare substantially comparable, in the aggregate, substantially comparable to those benefits provided to such Company Continuing Employee Employees as of immediately prior to the Closing. Purchaser shall honor all employment, severance, termination, consulting, retirement and other compensation and benefit plans, arrangement and agreements to which the Company and/or its Subsidiaries is a party with respect to employees of the Company and its Subsidiaries, as such plans, arrangements and agreements are in effect on the date hereof, it is understood that this Section 8.06 shall not be deemed to prohibit Purchaser, the Company or any of its Subsidiaries from amending, modifying, replacing or terminating such arrangements in accordance with their terms. With respect to any Company each Plan of the Purchaser in which Continuing Employee whose employment is terminated without Cause by the Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of immediately prior to Employees participate following the Closing Date (determined under the severance practice described on Schedule 3.20 of the Company Disclosure Schedule“New Plans”).
(b) With respect to any employee benefit plan, programPurchaser shall, arrangement, agreement, policy or commitment sponsored or maintained by the Buyer, in which any Company Continuing Employee participate on or after the Closing, the Buyer shall and cause the Company and the Company or its Subsidiaries to: (i) waive all pre-existing conditionsuse commercially reasonable efforts to recognize, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employeesfor purposes of satisfying any deductibles, except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan in effect immediately prior to the Closing; (ii) provide each such Company Continuing Employee with credit for any co-payments pays and deductibles paid (to out of pocket maximums during the same extent such credit was given for coverage period that includes the year under Closing Date, any payment made, or claims incurred by the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or Continuing Employees and their eligible dependents towards deductibles, co-pays and out-of-pocket requirementsmaximums; and (iiiii) recognize all continuous service of the Company Continuing Employee with the Company or the Company Subsidiaries, as applicable, for all purposes (including, without limitationrecognize, for purposes of eligibility to participate, vesting credit vesting, and entitlement to level of benefits, but excluding benefit accrual all service with the Company or its Subsidiaries (as applicable) that was recognized by any Plan identified in Section 3.15(a) (provided, however, that such service shall not be recognized to the extent such recognition would result in duplication of benefits); (iii) ensure that at such time as a Continuing Employee becomes eligible to participate in any New Plans, such Continuing Employee will be immediately eligible to participate, without any waiting time, in such New Plan to the extent such Continuing Employee’s waiting time was satisfied under a final average pay defined benefit pension plan) under any benefit plan, program, arrangement, agreement, policy similar or commitment comparable Plan in which the Company Continuing Employee may be eligible to participate after the participated immediately before Closing; provided that the foregoing shall not apply and (iv) use commercially reasonable efforts to cause all pre-existing condition exclusions or limitation and actively-at-work requirements of each New Plan to be waived or satisfied for such Continuing Employee and his or her covered dependents to the extent it would result in a duplication waived or satisfied under the analogous Plan as of benefitsthe Closing. This Section 8.01 8.06 shall survive the Closing, is intended to benefit the Company and the employees of the Company and the Company Subsidiaries, and shall be binding on all successors and assigns of the Buyer and the Company.
(c) Effective as of the ClosingPurchaser, Buyer shall establish participation by the Company Continuing Employees in a tax-qualified defined contribution plan (the “Buyer 401(k) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or and its Affiliates (collectively, the “Seller 401(k) Plans”)Subsidiaries. As soon as practicable after the Closing Date, the Seller 401(k) Plans shall, to the extent permitted by Section 401(k)(10) of the Code, make distributions available to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee.
(d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically provided Nothing contained in this Section 8.018.06, none express or implied, is intended or shall be construed to or shall confer or impose upon or give to any Person, other than the parties to this Agreement, any rights, remedies, benefits, liabilities, or obligations under or by reason of Buyer, its Affiliates, the Company this Agreement or the Company Subsidiaries shall have any liability or obligation documents executed in connection with this Agreement with respect to any employee benefit plan and/or Plan or arrangement of the Seller New Plan matters. Additionally, nothing contained herein, express or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to (i) issue offer letters of employment to the Indian Employees, (ii) inform the Indian Employees that, as of the Closing, their employment, for all purposesimplied, shall be with construed to establish, amend or modify any New Plan or any other Plan, program, agreement or arrangement sponsored or maintained by Purchaser, the Buyer’s applicable local Subsidiary in India Company or any of its Subsidiaries. The parties to this Agreement acknowledge and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and agree that the terms set forth in this Agreement; provided that the Seller Section 8.06 shall use commercially reasonable efforts to cooperate not create any right in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, any employee or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred Person to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this AgreementPurchaser, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing DateCompany, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947.
(g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, and shall not, (i) be treated as an establishment, amendment or other modification of any Employee Benefit Plan or any employee benefit plan of Buyer or any of its Affiliates, Subsidiaries or shall benefits of any nature or kind whatsoever or in any way limit the right ability of Purchaser, the Buyer Company, or any of its Affiliates Subsidiaries to amend, terminate the employment or otherwise modify service of any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon individual at any Persons other than the Seller and the Buyer (including, without limitation, time for any Company Continuing Employee, former employee of the Company or any participant in any Employee Benefit Plan or any benefit plan of the Buyer or any of its Affiliates, or any dependent or beneficiary thereof), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreementreason.
Appears in 1 contract
Employment and Benefit Arrangements. (a) During the period commencing at the Closing and ending on the date which is twelve (12) months from Effective no later than immediately prior to the Closing, Buyer shall and Seller shall cause the Company employment of each Specified Employee, except for any Inactive Specified Employee, to provide be transferred to New LLC. Seller shall cause each employee such Specified Employee to be employed by New LLC as of the Company or the Company Subsidiaries who remains employed immediately after prior to the Closing, excludingother than any such Specified Employee who resigns voluntarily, for dies or who is terminated with the avoidance prior written consent of doubt, the Indian Employees (“Company Continuing Employee”), with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunityBxxxx, in each case, prior to the Closing. Each such Specified Employee who becomes an employee of New LLC or who continues to be employed by a Group Company, along with each Inactive Specified Employee who becomes an employee of Buyer or its Affiliates pursuant to Section 7.10(b), is referred to herein as a “Company Employee.” Neither Buyer nor any of its Affiliates shall be obligated, however, to continue to employ any Company Employee for any specific period of time following the Closing Date, subject to applicable Law. Except as set forth on Schedule 7.10(a), neither New LLC, Buyer nor any of their respective Affiliates will assume any Employee Plan (including any severance plan or policy or any employment or similar agreement), or have any Liability with respect thereto.
(b) Buyer shall offer, or cause one of its Affiliates to offer, each Inactive Specified Employee employment when such Inactive Specified Employee presents himself or herself to one of Seller or its Affiliates or Buyer or one of its Affiliates (including the Company and its Affiliates) for active employment so long as such presentation occurs promptly following the conclusion of the Inactive Specified Employee’s approved leave of absence (as such leave of absence may be extended in accordance with Seller’s or one of its Affiliates’ standard policies and procedures) and on or prior to the 90th day after the Closing Date (or such later time as such employee has reinstatement rights pursuant to applicable Law). An Inactive Specified Employee shall become a Company Employee if such Inactive Specified Employee accepts such offer of employment and commences active employment in accordance with such offer of employment with Buyer or one of its Affiliates. Seller shall terminate the employment of any Inactive Specified Employee who accepts employment with Buyer or one of its Affiliates, to be effective as of the date of such acceptance, and Buyer shall reimburse and indemnify Seller or one of its Affiliates for all Losses associated with each such Inactive Specified Employee’s employment with, or termination of employment from, Seller one of its Affiliates through the date that is not less than such Inactive Specified Employee commences employment with Buyer or one of its Affiliates (including the Group Companies); provided, however, that in no event shall Buyer reimburse or indemnify Seller or any of its Affiliates for any Losses incurred under any severance plan or policy of Seller or any of its Affiliates. Notwithstanding the survival period contained in Section 10.1, this Section 7.10(b) shall be a Surviving Covenant.
(c) Buyer agrees that, for a period of one (1) year following the Closing (or, if shorter, the applicable Company Employee’s period of employment), the Company Employees shall receive: (i) a base salary or hourly wage rate (as applicable) and target annual cash bonus opportunity (excluding change-in-control, retention, long-term incentive, and equity or equity-related opportunities that are at least as favorable as the base salary or hourly wage rate (as applicable) and target annual cash bonus opportunity (excluding change-in-control, retention, long-term incentive, and equity or equity-related opportunities provided to such Company Continuing Employee those individuals immediately prior to the Closing, (ii) eligibility broad-based employee benefits (excluding any defined benefit pension plans, severance, long-term incentive, post-termination or retiree medical or welfare, equity or equity-based, change in control, retention, deferred compensation or similar compensation or benefits (the “Excluded Benefits”)) that are substantially similar in the aggregate to participate in a Buyer 401(kthe broad-based employee benefits (excluding the Excluded Benefits) Plan on terms not less favorable than those provided to such (1) the Company Continuing Employees under the Employee under a Seller 401(k) Plan immediately prior to the Closing, and (iii) other compensation opportunities and employee benefits, that are, Plans in the aggregate, substantially comparable to those provided to such Company Continuing Employee immediately prior to the Closing. With respect to any Company Continuing Employee whose employment is terminated without Cause by the Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of effect immediately prior to the Closing Date or (determined under 2) similarly situated employees of Parent and its direct and indirect Subsidiaries, and (iii) except as set forth on Schedule 7.10(c), severance benefits that are no less favorable than the severance practice described benefits set forth on Schedule 3.20 7.10(c) of the Company Disclosure Schedule).
(b) , subject to the terms and conditions described on such schedule. With respect to Specified Employees entitled to long-term incentive compensation, Buyer shall provide one-year retention benefits of approximately equivalent value. Buyer shall use commercially reasonable efforts to ensure that any employee benefit plan, program, arrangement, agreement, policy plans or commitment sponsored or maintained by the Buyer, in which any Company Continuing Employee participate on or after the Closingprograms it, the Company, any Subsidiary or any subsidiary of Buyer shall cause maintains or adopts with respect to the Company Employees treat employment with Seller or any of its Affiliates (including the Company and the Company Subsidiaries to: (i) waive all pre-existing conditionsany Subsidiary), exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employees, except to the extent such pre-existing conditions, exclusions Buyer or waiting periods applied under the similar plan in effect immediately any subsidiary of Buyer prior to the Closing; (ii) provide each such Company Continuing Employee with credit for any co-payments and deductibles paid (to Closing Date the same extent such credit was given as employment with Buyer, the Company, any Subsidiary or any subsidiary of Buyer from and after the Closing Date for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; purposes of eligibility and (iii) recognize all continuous service of the Company Continuing Employee with the Company or the Company Subsidiaries, as applicable, for all purposes vesting (including, without limitation, for purposes the satisfaction of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay defined benefit pension plan) any waiting periods under any welfare benefit plan, program, arrangement, agreement, policy plans maintained by Buyer or commitment in which the Company Continuing Employee may be eligible to participate after the Closing; provided that the foregoing shall not apply to the extent it would result in a duplication any subsidiary of benefits. This Section 8.01 shall survive the Closing, is intended to benefit the Company and the employees of the Company and the Company Subsidiaries, and shall be binding on all successors and assigns of the Buyer and the Company.
(c) Effective as of the Closing, Buyer shall establish participation by the Company Continuing Employees in a tax-qualified defined contribution plan (the “Buyer 401(kWelfare Plans”)) Plan”) and benefit accrual, but excluding for purposes of the Excluded Benefits or benefit accrual or to the extent such treatment would result in the duplication of each benefits). Buyer shall use commercially reasonable efforts to cause that no pre-existing condition limitations, exclusions or waiting periods applicable with respect to life and accidental death and dismemberment insurance, disability, sickness and accident and medical benefits under the Buyer Welfare Plans will apply to the Company Continuing Employee whoEmployees to the extent that such limitations, exclusions or waiting periods exceed those in effect under the welfare benefit plans maintained by the Company or any Subsidiary as of immediately the Closing Date. Buyer shall cause the Buyer Welfare Plans in which a Company Employee participates after the Closing Date to recognize, for purposes of satisfying any deductible, co-pays and out-of-pocket maximums, any payment made by the Company Employee prior to the ClosingClosing Date toward deductibles, was eligible to participate co-pays and out-of-pocket maximums in a tax-qualified defined contribution any welfare plan maintained by Seller of the Company or its Affiliates (collectivelyany Subsidiary, the “Seller 401(k) Plans”). As soon as practicable after the Closing Date, the Seller 401(k) Plans shall, subject to the extent permitted by Section 401(k)(10) Company’s timely provision of the Code, make distributions available all documentation reasonably necessary to the applicable Company Continuing Employeesinsurer or provider of such Buyer Welfare Plan. For the avoidance of doubt, and benefits provided under the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing EmployeeTransition Services Agreement will satisfy this Section 7.10(c).
(d) Promptly following At the Closing DateClosing, Seller shall pay will provide to each Company Continuing Employee all amounts Buyer a list of the number and site of employment of any employees of Seller or its Affiliates who have experienced or will experience an employment loss or layoff (as defined in respect of vacation the WARN Act) within 90 days and other paid time off accrued prior to the Closing Date but not taken by such and who are located at a site of employment where Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After Employees will be located following the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent along with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposesthe date of the employment loss or layoff.
(e) Except as otherwise specifically provided To the extent necessary for any Company Employee to perform services in this Section 8.01, none of connection with such Company Employee’s employment with Buyer, its Affiliates, the Company or any of its Subsidiaries or any of their respective Affiliates, Seller or its Affiliate (other than the Company Subsidiaries or any of its Subsidiaries) shall have grant each Company Employee a limited release from any liability existing non-competition, non-solicitation or confidentiality obligation with respect to any employee benefit plan or arrangement confidential information of the Acquired Business owed to Seller or any Affiliate other than the Employee Benefit Plans and the Seller and of its Affiliates (other than the Company or any of its Subsidiaries) for the sole and limited purpose of allowing any Company Employee to perform services for Buyer, the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect any of the Employee Benefit Planstheir respective Affiliates.
(f) On As of the Closing, Seller shall provide to Buyer the personnel files (including Forms I-9) for each Company Employee.
(g) The provisions of this Section 7.10 are solely for the benefit of the Parties and no employee or former employee or any other individual or Person shall be regarded for any purpose as a third-party beneficiary of this Section 7.10 or have any cause of action or claim based on this Section 7.10. In no event shall the terms of this Agreement be deemed to (i) establish, waive, amend or modify any Employee Plan, Buyer Welfare Plan or any other benefit plan, program, agreement or arrangement maintained or sponsored by the Company, any Subsidiary, Buyer or any of their respective Affiliates; (ii) alter or limit the ability of the Company, any Subsidiary, Buyer or any of their respective Affiliates, as applicable, to amend, modify or terminate any Employee Plan, any Buyer Welfare Plan or any other benefit plan, program, agreement or arrangement; (iii) require the Company, any Subsidiary, Buyer or any of their respective Affiliates to continue any Employee Plan, Buyer Welfare Plan or any other benefit plan, program, agreement or arrangement; or (iv) confer upon any employee, former employee, other service provider or any other individual any right to employment or engagement or continued employment or engagement, benefits or continued service with the Company, any Subsidiary, Buyer or any of their respective Affiliates.
(h) Prior to Closing, Seller shall be permitted to contact each Key Employee (provided that any such contact shall include a representative designated by Seller) in connection with the negotiation, preparation and execution of an employment agreement with the Company, New LLC or an Affiliate of Buyer to be effective at Closing, which Bxxxx agrees will include (i) terms and conditions of employment that are substantially economically comparable in the aggregate to the terms and conditions of such Key Employee’s employment with Seller or its Affiliates immediately prior to the Closing Date, and (ii) an acknowledgment by such Key Employee that such Key Employee has no continuing rights to compensation or benefits from Seller or any of its Affiliates after the Buyer shall cause its applicable local Subsidiary in India to Closing.
(i) issue offer letters of employment to the Indian EmployeesNo later than April 30, (ii) inform the Indian Employees that, as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date)2023, Buyer shall, or shall cause its applicable Subsidiarythe Group Companies to, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior pay to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Specified Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947.
(g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, and shall not, (i) be treated as an establishment, amendment or other modification of any Employee Benefit Plan or any employee benefit plan of Buyer then remain employed by Parent or any of its AffiliatesSubsidiaries (including the Group Companies) 2022 annual bonuses equal to amounts accrued therefor in the ordinary course as of December 31, or shall limit 2022 on the right books and records of Seller, determined consistently with how 2021 annual bonuses were determined for Acquired Business Service Providers in the Buyer or any ordinary course (the aggregate of its Affiliates to amendall such 2022 annual bonus, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon any Persons other than the Seller and the Buyer (including, without limitation, any Company Continuing Employee, former employee of the Company or any participant in any Employee Benefit Plan or any benefit plan of the Buyer or any of its Affiliates, or any dependent or beneficiary thereof“2022 Bonus Amount”), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreement.
Appears in 1 contract
Employment and Benefit Arrangements. (a) During the For a period commencing at the Closing and ending on the date which is of no less than twelve (12) months from following the ClosingClosing Date, Buyer shall and shall the Purchaser will provide (or cause an Affiliate of the Company Purchaser to provide provide) each employee of who continues in employment with the Surviving Company or any of its Subsidiaries following the Company Subsidiaries who remains employed immediately after the ClosingEffective Time (each, excluding, for the avoidance of doubt, the Indian Employees (a “Company Continuing Employee”), ) with (i) an annual a base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less no lower than that the base salary or hourly wage rate provided to such Company Continuing Employee immediately prior to the ClosingEffective Time, and (ii) eligibility employee benefits, including, without limitation, health, welfare, retirement and severance benefits (other than equity-based awards), that are substantially similar to participate in a Buyer 401(k) Plan on terms not less favorable than those provided by the Company to such Company Continuing Employee under a Seller 401(k) Plan employee immediately prior to the ClosingEffective Time or provided to similarly situated employees of the Purchaser and its Affiliates from time to time. Notwithstanding anything to the contrary in this Section 6.03, and the Purchaser shall have full discretion with respect to bonuses to be paid to employees for fiscal year 2013 (iiisubject to any pre-existing contract arrangements binding on the Purchaser). The Purchaser shall be solely responsible for any obligations arising under Section 4980B of the Code with respect to all “M&A qualified beneficiaries” as defined in Treasury Regulation §54.4980B-9.
(b) other compensation opportunities and employee benefitsFor purposes of determining eligibility, that arevesting, participation and, in the aggregatecase of vacation and severance programs only, substantially comparable benefit accrual under the Purchaser’s and its Affiliates’ plans and programs providing employee benefits (excluding any defined benefit pension plans) to those provided to such Company Continuing Employees after the Closing Date (the “Purchaser Benefit Plans”), each Continuing Employee immediately prior to shall be credited with his or her years of service with the Closing. With respect to any Company Continuing Employee whose employment is terminated without Cause by the Buyer (or and its applicable Subsidiarypredecessors) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of immediately prior to the Closing Date (determined under to the severance practice described on Schedule 3.20 of the Company Disclosure Schedule).
(b) With respect to any employee benefit plan, program, arrangement, agreement, policy or commitment sponsored or maintained by the Buyer, in which any Company same extent as such Continuing Employee participate on was (or after would have been) entitled, before the ClosingClosing Date, the Buyer shall cause the Company and the Company Subsidiaries to: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to credit for such Company Continuing Employeesservice under Plans, except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan in effect immediately prior to the Closing; (ii) provide each such Company Continuing Employee with credit for any co-payments and deductibles paid (to the same extent providing such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service of the Company Continuing Employee with the Company or the Company Subsidiaries, as applicable, for all purposes (including, without limitation, for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay defined benefit pension plan) under any benefit plan, program, arrangement, agreement, policy or commitment in which the Company Continuing Employee may be eligible to participate after the Closing; provided that the foregoing shall not apply to the extent it would result in a any duplication of benefits. This Section 8.01 In addition, the Purchaser shall survive the Closing, is intended to benefit the Company and the employees (or shall cause an Affiliate of the Company and the Company Subsidiaries, and shall be binding on all successors and assigns of the Buyer and the Company.
(cPurchaser to) Effective as of the Closing, Buyer shall establish participation by the Company Continuing Employees in a tax-qualified defined contribution plan (the “Buyer 401(k) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or its Affiliates (collectively, the “Seller 401(k) Plans”). As soon as practicable after the Closing Date, the Seller 401(k) Plans shall, to the extent permitted by Section 401(k)(10) of the Code, make distributions available to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee.
(d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically provided in this Section 8.01, none of Buyer, its Affiliates, the Company or the Company Subsidiaries shall have any liability or obligation with respect to any employee benefit plan or arrangement of the Seller or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to (i) issue offer letters of employment to the Indian Employees, (ii) inform the Indian Employees that, as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order cause: (i) each Continuing Employee to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shallbe eligible to participate, without any waiting time (other than administrative delays expressly required pursuant to the maximum extent possible terms of an applicable Purchaser Benefit Plan), in any and consistent with applicable Law all Purchaser Benefit Plans; (ii) each Purchaser Benefit Plan providing medical, dental, hospital, pharmaceutical or vision benefits to provide that all pre-existing condition exclusions and the terms set forth in this Agreement, transfer the Indian Employees actively-at-work requirements of such Purchaser Benefit Plan are waived for such Continuing Employee and his or her covered dependents (except to the Buyer’s applicable local Subsidiary in India without triggering the right of extent that such employees to separation pay, exclusions or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred requirements applied to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations Continuing Employee under comparable Plans as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and each Purchaser Benefit Plan providing medical, dental, hospital, pharmaceutical or vision benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoinggive effect, in the event of a Deferred Closing pursuant determining any deductible and maximum out-of-pocket limitations, to Section 2.06(b) of this Agreementclaims incurred and amounts paid by, and amounts reimbursed to, the transfer process contemplated by this Section 8.01(f) shall be effectuated as Continuing Employees during the plan year of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to applicable Plan during which the Closing Date deemed occurs with respect to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947similar Purchaser Benefit Plans.
(gc) The Company and Buyer acknowledge and agree that all provisions Nothing contained in this Agreement are included for Section 6.03 shall (i) subject to compliance with the sole benefit of the respective parties. The provisions requirements of this Section 8.01 are not intended to6.03, and shall notbe construed to restrict in any way the ability of the Purchaser, the Surviving Company or any of their Affiliates to (A) amend, terminate or modify the duties, responsibilities or employment of any Continuing Employee, (iB) to amend, terminate or modify any Plan or Purchaser Benefit Plan, compensation or benefit arrangement or any other employee benefit plans or programs maintained by the Purchaser, the Surviving Company or their Affiliates at any time or from time to time, or (C) grant any employee any special right for compensation, (ii) be treated as an establishment, amendment or other modification of any Employee Benefit Plan compensation or any employee benefit plan arrangement of Buyer the Purchaser, the Surviving Company or any of its Affiliates, or shall limit the right of the Buyer or including any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon any Persons other than the Seller and the Buyer (including, without limitation, any Company Continuing Employee, former employee of the Company or any participant in any Employee Purchaser Benefit Plan or any benefit plan of the Buyer or any of its Affiliates, or any dependent or beneficiary thereof), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employmentPlan, or (iii) constitute be construed to create any third-party beneficiary rights in any present or create an employment agreementformer employee, service provider, independent contractor, consultant, any such Person’s alternate payees, dependents or beneficiaries or any other Person.
Appears in 1 contract
Employment and Benefit Arrangements. (a) During the period commencing at Prior to the Closing and ending on the date which is twelve (12) months from the ClosingDate, Buyer shall and shall cause the Company to provide each employee of the Company or the Company Subsidiaries who remains employed immediately after the Closing, excluding, for the avoidance of doubt, the Indian Employees (“Company Continuing Employee”), with (i) an annual base salary or an hourly wage ratethe Company shall terminate the Company’s 401(k) plan, as effective at least one day prior to the Closing Date, and (ii) except with respect to Employee Benefit Plans described in Section 2.11 (which shall be subject to the provisions of Section 2.11) and employment agreements, the Company shall terminate, effective prior to the Effective Time, all other Employee Benefit Plans (or, to the extent applicable, terminate the Company’s and annual cash incentive compensation opportunityits Subsidiaries’ participation in any Employee Benefit Plan sponsored by ADP Totalsource). Prior to the Closing the Company shall present evidence to Parent in a form reasonably satisfactory to Parent that (i) the Company’s 401(k) plan has been terminated pursuant to resolutions of the Company’s Board of Directors, effective at least one day prior to the Closing Date, (ii) the Company will take all actions as are necessary to complete the termination of the Company’s 401(k) plan in each casecompliance with its terms and the requirements of applicable Law, that is and (iii) except with respect to Employee Benefit Plans described in Section 2.11 and employment agreements, the Company’s other Employee Benefit Plans (or, to the extent applicable, its and its Subsidiaries’ participation in any Employee Benefit Plan sponsored by ADP Totalsource) have been properly terminated in accordance with the requirements of such Employee Benefit Plans arid the requirements of applicable Law effective not less later than that provided to such Company Continuing Employee immediately prior to the ClosingEffective Time.
(b) As of the Closing Date, and for a period of at least 12 months thereafter (iiexcept as set forth on Section 3.19 of the Disclosure Schedule), Parent shall provide, or shall cause its Subsidiaries (including the Surviving Corporation) or Affiliates to provide, the employees of the Surviving Corporation who were active employees of the Company and its Subsidiaries immediately prior to the Closing (each, a “Company Employee,” and, collectively, the “Company Employees”) with compensation (including base salary, commission, and applicable bonus arrangements) and employee benefits (other than any equity-based compensation or benefits) that are no less favorable in the aggregate than the compensation and employee benefits (other than any equity-based compensation or benefits) provided to the Company Employees immediately prior to the Closing (assuming, for this purpose, the Employee Benefit Plans had not been terminated pursuant to Section 6.05(a)) or, at Parent’s discretion, to similarly situated employees of Parent and its Subsidiaries and Affiliates. Parent and its Subsidiaries (including the Surviving Corporation) and Affiliates shall recognize all service with the Company and its Subsidiaries and Affiliates (and their respective predecessor employers) for purposes of determining eligibility to participate and vesting under each benefit plan, program, practice, policy and arrangement (other than any equity-based plans or arrangements) maintained by Parent or any of its Subsidiaries or Affiliates after the Closing and in which any Company Employee participates or becomes eligible to participate after the Closing (each, a Buyer 401(k“Parent Benefit Plan”) Plan on terms not less favorable than those provided to the same extent such Company Continuing service was recognized for such purposes under the analogous Employee under a Seller 401(k) Benefit Plan immediately prior to the ClosingClosing (assuming, for this purpose, such Employee Benefit Plan had not been terminated pursuant to Section 6.05(a)) except where such service crediting would result in duplicate benefits. Parent and (iii) other compensation opportunities its Subsidiaries and employee Affiliates shall use commercially reasonable efforts to cause each Parent Benefit Plan providing health benefits, that are, after the Closing and in the aggregate, substantially comparable to those provided to such Company Continuing Employee immediately prior to the Closing. With respect to any Company Continuing Employee whose employment is terminated without Cause by the Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, plan year in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of immediately prior to which the Closing Date occurs, (determined under the severance practice described on Schedule 3.20 of the Company Disclosure Schedule).
(ba) With respect to any employee benefit plan, program, arrangement, agreement, policy or commitment sponsored or maintained by the Buyer, in which any Company Continuing Employee participate on or after the Closing, the Buyer shall cause the Company and the Company Subsidiaries to: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing EmployeesEmployees (and their eligible spouses, domestic partners and dependents) to the extent allowable under the terms of the plan and applicable Law and except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan analogous Employee Benefit Plan in effect which such Company Employee participated immediately prior to the Closing; and (iib) to provide each such Company Continuing Employee (and their eligible spouses, domestic partners and dependents) with credit for any co-co- payments and deductibles paid (to the same extent such credit was given for the year under the similar plan analogous Employee Benefit Plan in effect which such Company Employee (or such Company Employee’s spouse, domestic partner or dependents) participated immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service of the Company Continuing Employee with the Company or the Company Subsidiaries, as applicable, for all purposes (including, without limitation, for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay defined benefit pension plan) under any benefit plan, program, arrangement, agreement, policy or commitment in which the Company Continuing Employee may be eligible to participate after the Closing; provided that the foregoing shall not apply to the extent it would result in a duplication of benefits. This Section 8.01 shall survive the Closing, is intended to benefit the Company and the employees of the Company and the Company Subsidiaries, and shall be binding on all successors and assigns of the Buyer and the Company.
(c) Effective Except to the extent ADP Totalsource has contractually agreed to be responsible for providing continuation coverage under COBRA, Parent and the buying group (as defined in Treasury Regulation Section 54.4980B-9, Q&A-2(c)) of the Closing, Buyer shall establish participation by the Company Continuing Employees in which it is a tax-qualified defined contribution plan part (the “Buyer 401(k) PlanBuying Group”) shall be solely responsible for providing COBRA continuation coverage pursuant to (i) Section 4980B(f) of the benefit Code, Part 6 of each Company Continuing Employee whoSubtitle B of Title I of ERISA and similar state Law to those individuals who are M&A qualified beneficiaries (as defined in Treasury Regulation Section 54.4980B-9, as of immediately prior Q&A-4(b)) with respect to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained transactions contemplated by Seller or its Affiliates this Agreement (collectively, the “Seller 401(k) PlansM&A Qualified Beneficiaries”). As soon , and (ii) Title III of Division B of the American Recovery and Reinvestment Act of 2009, as practicable after the Closing Dateamended, the Seller 401(k) Plans shalland all guidance promulgated thereunder, to the extent permitted by Section 401(k)(10) of the Code, make distributions available applicable with respect to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing EmployeeM&A Qualified Beneficiaries.
(d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically provided Nothing contained in this Section 8.01, none of Buyer, its Affiliates, the Company or the Company Subsidiaries shall have any liability or obligation with respect to any employee benefit plan or arrangement of the Seller 6.05 or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) provision of this Agreement shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to (i) issue offer letters limit the ability of Parent, the Surviving Corporation, or any of their Subsidiaries or Affiliates to terminate the employment to the Indian Employeesof any employee (including any Company Employee) at any time and for any or no reason, (ii) inform the Indian Employees that, as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary construed to create any third-party beneficiary rights in India and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947.
(g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, and shall not, (i) be treated as an establishment, amendment or other modification of any Employee Benefit Plan or any employee benefit plan of Buyer or any of its Affiliates, or shall limit the right of the Buyer or any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon any Persons other than the Seller and the Buyer (including, without limitation, any Company Continuing Employee, former employee (including any dependent thereof) of the Company or any participant in any Employee Benefit Plan of its Subsidiaries or Affiliates or any Person other than the parties to this Agreement or any right to employment or continued employment for any specified period or to a particular term or condition of employment with Parent, the Surviving Corporation or any of their Subsidiaries or Affiliates, (iii) require Parent, the Surviving Corporation or any of their Subsidiaries or Affiliates to maintain or continue any specific benefit plan or compensation plans, programs, agreements or arrangements, (iv) be construed to establish, amend or modify any benefit or compensation plan, program, agreement or arrangement, or (v) limit the ability of the Buyer Parent or any of its Subsidiaries or Affiliates, or any dependent or beneficiary thereof), any rights or remedies, including to continued employment with following the Buyer Closing the Surviving Corporation or any of its Subsidiaries or Affiliates to amend, modify or to terminate any particular term benefit or compensation plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of condition of employment, or (iii) constitute or create an employment agreementthem.
Appears in 1 contract
Samples: Merger Agreement (Bankrate, Inc.)
Employment and Benefit Arrangements. (a) During the period commencing at From and after the Closing Date, Buyer shall cause the Company and ending its Subsidiaries to comply in all material respects with the terms of all legally binding employment, severance, termination, consulting, retirement and other compensation and benefit plans, arrangements and agreements to which the Company or any Subsidiary is a party and which are disclosed on Schedule 4.13, as such plans, arrangements and agreements are in effect on the date which is hereof. For the period of twelve (12) months from after the ClosingClosing Date, Buyer shall and shall cause the Company and its Subsidiaries to provide each their non-union-represented employees who were employed with the Company or its Subsidiaries as of the Closing Date with wages, bonus opportunities and employee benefits that are no less favorable in the aggregate to the wages, bonus opportunities and employee benefits in effect in the aggregate for such persons as of the Closing Date (excluding any equity-based compensation and excluding any defined benefit pension and retiree medical benefits). With respect to union-represented employees, Buyer shall cause the Company and its Subsidiaries to comply with the terms and conditions of all applicable collective bargaining agreements, as may be modified from time-to-time. Nothing in this Article 7.03 is intended to represent a guarantee of employment or otherwise restrict the authority of the Company or any of its Subsidiaries to terminate the Company Subsidiaries who remains employed immediately after the Closingemployment of any of their employees or, excluding, for the avoidance of doubt, the Indian Employees (“Company Continuing Employee”), with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Company Continuing Employee immediately prior subject to the Closingexpress provisions set forth in this Article 7.03, (ii) eligibility terminate or modify any individual Plan, subject to participate in a Buyer 401(k) Plan on terms not less favorable than those provided to such Company Continuing Employee under a Seller 401(k) Plan immediately prior to the Closing, and (iii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Company Continuing Employee immediately prior to the Closingapplicable law. With respect to any Company Continuing Employee whose employment is terminated without Cause by the Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of immediately prior to the Closing Date (determined under the severance practice described on Schedule 3.20 of the Company Disclosure Schedule).
(b) With respect to any employee benefit plan, program, arrangement, agreement, policy or commitment sponsored or maintained by the Buyer, plans in which any employees of the Company Continuing Employee or its Subsidiaries participate on or after the Closing, the Buyer shall cause the Company and the Company its Subsidiaries to: (ia) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employeesemployees, except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan in effect immediately prior to the Closing; (iib) provide each such Company Continuing Employee employee with credit for any co-payments and deductibles paid (to the same extent such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iiic) recognize all continuous service of the Company Continuing Employee Company’s and each of its Subsidiaries’ employees with the Company or any of its Subsidiaries (including continuous service with an entity that was previously acquired by the Company SubsidiariesCompany), as applicable, for all purposes (including, without limitation, including for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay defined benefit pension plan) under any employee benefit plan, program, arrangement, agreement, policy or commitment plan in which the Company Continuing Employee such employees may be eligible to participate after the Closing; provided that the foregoing shall not apply to the extent it would result in a duplication of benefits. This Section 8.01 shall survive the Closing, Article 7.03 is intended to solely for the benefit the Company and the employees of the Company and parties to this Agreement and, except as expressly set forth in Article 11.15, no current or former employee, director or independent contractor or any other individual associated therewith shall be regarded for any purpose as a third-party beneficiary of the Company SubsidiariesAgreement, and nothing herein shall be binding on all successors and assigns of construed as an amendment to any Plan or other employee benefit plan for any purpose.
(b) After the date hereof, the Buyer and the Company.
(c) Effective Company shall cooperate in good faith to determine whether to, effective as of the Closing, Buyer shall establish participation by the Company Continuing Employees in maintain or terminate any and all Plans intended to include a tax-qualified defined contribution plan Code Section 401(k) arrangement (the each a “Buyer 401(k) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or its Affiliates (collectively, the “Seller 401(k) Plans”). As soon as practicable after the Closing Date, the Seller 401(k) Plans shall, to the extent permitted by Section 401(k)(10) of the Code, make distributions available to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee.
(d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically provided in this Section 8.01, none of Buyer, its Affiliates, the Company or the Company Subsidiaries shall have any liability or obligation with respect to any employee benefit plan or arrangement of the Seller or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to (i) issue offer letters of employment to the Indian Employees, (ii) inform the Indian Employees that, as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which Company shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date)required, Buyer shall, or shall cause without its applicable Subsidiaryconsent, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947.
(g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, and shall not, (i) be treated as an establishment, amendment or other modification of any Employee Benefit Plan or any employee benefit plan of Buyer or terminate any of its Affiliates, or shall limit the right of the Buyer or any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon any Persons other than the Seller and the Buyer (including, without limitation, any Company Continuing Employee, former employee of the Company or any participant in any Employee Benefit Plan or any benefit plan of the Buyer or any of its Affiliates, or any dependent or beneficiary thereof401(k), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Pinnacle Foods Finance LLC)
Employment and Benefit Arrangements. (a) During the period commencing For at the Closing and ending on the date which is least twelve (12) months from following the ClosingClosing Date, Buyer shall and the Purchaser shall cause the Company to provide each continuing employee of the Company or the Company and its Subsidiaries who remains employed immediately after the Closing, excluding, for the avoidance of doubt, the Indian Employees (“Company Continuing Employee”), with (i) an annual a base salary or an hourly base wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that equivalent to the base salary or base wage rate, as applicable, provided to such Company Continuing Employee immediately prior to the Closing, (ii) eligibility to participate in a Buyer 401(k) Plan on terms not less favorable than those provided to such Company Continuing Employee under a Seller 401(k) Plan immediately employee prior to the Closing, and (iiiii) all other compensation opportunities and employee benefits, benefits (other than any equity-based compensation) that are, are substantially comparable in the aggregate, substantially comparable aggregate to those the other compensation and employee benefits (excluding equity-based compensation) provided to such Company Continuing Employee immediately prior to the Closing. With respect to any Company Continuing Employee whose employment is terminated without Cause by the Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as similarly situated employees of immediately prior to the Closing Date (determined under the severance practice described on Schedule 3.20 of the Company Disclosure Schedule)Purchaser.
(b) With respect Employees of the Company and its Subsidiaries participating in The Gores Group, LLC 401(k) Plan (the “Seller 401(k) Plan”) and any Gores Group, LLC welfare plans (the “Seller Welfare Plans”) shall cease active participation in the Seller 401(k) Plan and Seller Welfare Plans effective as of the Closing Date. Without limiting the generality of the other provisions of this Section 7.03, the Purchaser shall cause such employees of the Company and its Subsidiaries to any employee benefit plan, program, arrangement, agreement, policy or commitment become immediately eligible to participate in a 401(k) plan and welfare plans sponsored or maintained by the BuyerPurchaser or any of its Affiliates. For a period of six (6) months following the Closing Date, in which at the election of such employees of the Company and its Subsidiaries, Purchaser shall cause its 401(k) plan (or a 401(k) plan maintained by any Company Continuing Employee participate on or after of its Affiliates) to accept any “eligible rollover distributions” (as defined under Section 402(c)(4) of the Code) made from the Seller 401(k) Plan to such employees. Prior to the Closing, the Buyer Seller shall, and shall cause its Affiliates (including the Company and its Subsidiaries) to, provide all cooperation reasonably requested by the Company Subsidiaries to: Purchaser to effectuate the Purchaser’s obligations under this Section 7.03(b); provided that such cooperation shall not require the Seller to make any payments or otherwise expend funds.
(ic) waive The Purchaser shall take all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employees, except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan in effect immediately prior to the Closing; (ii) provide each such Company Continuing Employee with credit for any co-payments and deductibles paid (to the same extent such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service actions necessary so that employees of the Company Continuing Employee with the Company or the Company Subsidiaries, as applicable, and its Subsidiaries shall receive service credit for all purposes (including, without limitation, other than for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay defined benefit pension plan) under any compensation or benefit planplans, programprograms, arrangementarrangements, agreement, policy agreements and policies sponsored by the Purchaser or commitment any of its Affiliates in which the Company Continuing Employee may be such employees are eligible to participate after the Closing; provided that the foregoing shall not apply participate, except to the extent it would result in a duplication of benefitsbenefits would result. This Section 8.01 shall survive To the Closing, is intended to extent that the Purchaser modifies any welfare benefit the Company and coverage or plan under which the employees of the Company and the Company Subsidiaries, and shall be binding on all successors and assigns of the Buyer and the Company.
(c) Effective as of the Closing, Buyer shall establish participation by the Company Continuing Employees in a tax-qualified defined contribution plan (the “Buyer 401(k) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or its Affiliates (collectivelySubsidiaries participate, the “Seller 401(k) Plans”). As soon as practicable after the Closing Date, the Seller 401(k) Plans shall, to the extent permitted by Section 401(k)(10) of the Code, make distributions available to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee.
(d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically provided in this Section 8.01, none of Buyer, its Affiliates, the Company or the Company Subsidiaries shall have any liability or obligation with respect to any employee benefit plan or arrangement of the Seller or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to (i) issue offer letters of employment to the Indian Employees, (ii) inform the Indian Employees that, as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller Purchaser shall use commercially reasonable efforts to cooperate waive any applicable waiting periods, pre-existing conditions or actively-at-work requirements and shall give such employees credit under the new coverages or benefit plans for deductibles, co-insurance and out-of-pocket payments that have been paid during the year in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth which such welfare benefit coverage or plan modification occurs.
(d) Nothing in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees Section 7.03 shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary construed to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary establish, amend, or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947.
(g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, and shall not, (i) be treated as an establishment, amendment or other modification of modify any Employee Benefit Plan or any employee other benefit plan or compensation plan, program, agreement or arrangement of Buyer the Purchaser, the Company or any of its their respective Affiliates, (ii) alter or shall limit Purchaser’s, the right of the Buyer Company’s or any of its Affiliates their Affiliates’ ability to amend, modify or terminate or otherwise modify any such Employee Benefit Plan or other benefit plan following the Closingor compensation plan, program, agreement or arrangement in accordance with their terms, (iiiii) confer upon give any Persons other than the Seller and the Buyer (includingthird party, without limitation, including any Company Continuing Employee, former employee employees of the Company or any participant in any Employee Benefit Plan of its Subsidiaries or any benefit plan of the Buyer beneficiaries or any of its Affiliates, or any dependent or beneficiary dependents thereof), any rights or remediesright to enforce the provisions of this Section 7.03 as a third-party beneficiary, including with respect to a right to employment or continued employment with the Buyer or for any period of its Affiliates or to any particular term time by reason of condition of employment, or (iii) constitute or create an employment agreementthis Agreement.
Appears in 1 contract
Employment and Benefit Arrangements. (a) During the period commencing For at the Closing and ending on the date which is least twelve (12) months from following the Closing, Buyer shall and the Purchaser shall cause the Company Surviving Corporation to either (i) provide each employee compensation to employees of the Company or the Company and its Subsidiaries who remains employed immediately after the Closing, excluding, for the avoidance of doubt, the Indian Employees (“Company Continuing Employee”), with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Company Continuing Employee immediately prior to the Closing, (ii) eligibility to participate in a Buyer 401(k) Plan on terms not less favorable than those provided to such Company Continuing Employee under a Seller 401(k) Plan immediately prior to the Closing, and (iii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those the compensation provided to such Company Continuing Employee immediately prior to the Closing. With respect to any Company Continuing Employee whose employment is terminated without Cause by the Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of immediately prior to the Closing Date (determined under the severance practice described and maintain in effect on Schedule 3.20 behalf of employees of the Company Disclosure Schedule).
(b) With respect to any employee benefit plan, program, arrangement, agreement, policy or commitment sponsored or maintained by the Buyer, in which any Company Continuing Employee participate on or after the Closing, the Buyer shall cause and its Subsidiaries the Company and the Company Subsidiaries to: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employees, except to the extent such pre-existing conditions, exclusions Employee Plans or waiting periods applied under the similar plan in effect immediately prior to the Closing; (ii) provide each such Company Continuing Employee with credit for any co-payments and deductibles paid (to the same extent such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service employees of the Company Continuing Employee and its Subsidiaries with compensation (other than equity incentives) and benefit plans, programs, arrangements, agreements and policies as are in the aggregate not substantially less favorable than the compensation and aggregate level of benefits provided under the Company Employee Plans provided to such employees as of the Closing; provided, however, that nothing in this Section 7.04 shall prevent the Surviving Corporation from terminating any employee or, subject to compliance with this Section 7.04, from amending, suspending or terminating any Company Employee Plans or agreement to the extent permitted by their respective terms of any such Company Employee Plan or agreement. The Purchaser shall take all actions required so that eligible employees of the Company Subsidiaries, as applicable, and its Subsidiaries shall receive service credit for all purposes (including, without limitation, other than for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual accruals under a final average pay any “defined benefit pension plan) under any benefit plan, program, arrangement, agreement, policy ,” or commitment in which the Company Continuing Employee may be eligible to participate after the Closing; provided accruals that the foregoing shall not apply to the extent it would result in a duplication of any benefits) under any successor employee benefit plans and arrangements sponsored by the Purchaser. To the extent that the Purchaser modifies any coverage or benefit plans under which the employees of the Surviving Corporation and its Subsidiaries participate, the Purchaser shall waive any applicable waiting periods, pre-existing conditions or actively-at-work requirements and shall give such employees credit under the new coverages or benefit plans for deductibles, co-payments and out-of-pocket payments that have been paid during the year in which such coverage or plan modification occurs. If the employment of any employee of the Company or any of its Subsidiaries is terminated within twelve (12) months following the Closing, the Purchaser shall pay (or cause the Surviving Corporation to pay) such employee a severance benefit that shall in no event be less than, or paid later than, the severance benefit, if any, to which such employee would have been entitled pursuant to the severance practice set forth on the attached Severance Schedule. The Purchaser shall be solely responsible for any obligations arising under Section 4980B of the Code with respect to all “M&A qualified beneficiaries” as defined in Treasury Regulation §54.4980B-9. This Section 8.01 7.04 shall survive the Closingconsummation of the Merger at the Effective Time, is intended to benefit the Company Company, the Surviving Corporation, and the employees of the Company Company, its Subsidiaries and the Company SubsidiariesSurviving Corporation, and shall be binding on all successors and assigns of the Buyer Purchaser and the Company.
(c) Surviving Corporation. Effective as of the Closingday immediately preceding the Closing Date, Buyer shall establish participation by the Company Continuing Employees in shall adopt a tax-qualified defined contribution plan board resolution stating that any and all Company Employee Plans intended to include a Code Section 401(k) arrangement (the each, a “Buyer Company 401(k) Plan”) for the benefit of each Company Continuing Employee who, are terminated effective as of the day immediately preceding the Closing Date (but contingent on the occurrence of the Closing), unless the Purchaser provides written notice to the Company at least three (3) Business Days prior to the ClosingClosing Date that such 401(k) plan(s) need not be terminated. Unless the Purchaser provides such written notice to the Company, was the Company shall provide the Purchaser with copies of such board resolutions. As of the Effective Time, all employees of the Company eligible to participate in any such Company 401(k) Plan(s) shall be eligible to participate in a tax-qualified defined contribution plan Code Section 401(k) arrangement maintained by Seller or its Affiliates the Purchaser (collectively, the “Seller Purchaser 401(k) PlansPlan”). As soon as practicable after the Closing Date, the Seller The Purchaser shall cause such Purchaser 401(k) Plans shall, Plan to accept direct rollover contributions (within the extent permitted by meaning of Section 401(k)(10401(a)(31) of the Code), make distributions available to including promissory notes for participant loans so that such loans do not default as a consequence of the applicable termination of the Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loansPlan(s), from the Company 401(k) as a rollover contribution if so requested by any Company Continuing Employee.
(dPlan(s) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically provided in this Section 8.01, none of Buyer, its Affiliates, the Company or the Company Subsidiaries shall have any liability or obligation with respect to any employee benefit plan or arrangement of the Seller or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to (i) issue offer letters of employment to the Indian Employees, (ii) inform the Indian Employees that, as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947.
(g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, and shall not, (i) be treated as an establishment, amendment or other modification of any Employee Benefit Plan or any employee benefit plan of Buyer or any of its Affiliates, or shall limit the right of the Buyer or any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon any Persons other than the Seller and the Buyer (including, without limitation, any Company Continuing Employee, former employee of the Company or any participant in any Employee Benefit Plan or any benefit plan of the Buyer or any of its Affiliates, or any dependent or beneficiary thereof), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreementSubsidiaries.
Appears in 1 contract
Samples: Merger Agreement (Vantiv, Inc.)
Employment and Benefit Arrangements. (a) During the period commencing at From the Closing and ending on Date until December 31, 2018, the date which is twelve (12) months from the Closing, Buyer shall and Purchaser shall cause the Company to provide each employee employees of the Company or and its Subsidiaries who were employed by the Company and its Subsidiaries who remains employed immediately after following the Closing, excluding, for Closing (the avoidance of doubt, the Indian Employees (“Company Continuing EmployeeTransferred Employees”), ) with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash target incentive compensation opportunity, in each case, (other than equity-based compensation) that is not no less than that the base salary and target incentive compensation (other than equity-based compensation) provided to such Company Continuing Employee immediately employees prior to the Closing, Closing and (ii) eligibility subject to participate in Section 8.03(b), benefit plans, programs, arrangements, agreements and policies that provide a Buyer 401(klevel of benefits (other than equity based compensation) Plan on terms not less favorable than those provided to such Company Continuing Employee under a Seller 401(k) Plan immediately prior to the Closing, and (iii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those the aggregate level of benefits provided to such Company Continuing Employee immediately prior to under the Plans as of the Closing. With respect to any Company Continuing Employee whose employment is terminated without Cause by the Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary The Purchaser shall provide cash severance benefits take all actions necessary so that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of immediately prior to the Closing Date (determined under the severance practice described on Schedule 3.20 employees of the Company Disclosure Schedule).
(b) With respect to any employee benefit plan, program, arrangement, agreement, policy or commitment sponsored or maintained by the Buyer, in which any Company Continuing Employee participate on or after the Closing, the Buyer and its Subsidiaries shall cause the Company and the Company Subsidiaries to: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employees, except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan in effect immediately prior to the Closing; (ii) provide each such Company Continuing Employee with receive service credit for any co-payments and deductibles paid (to the same extent such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service of the Company Continuing Employee with the Company or the Company Subsidiaries, as applicable, for all purposes (including, without limitation, other than for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay any defined benefit pension plan) under any compensation or benefit planplans, programprograms, arrangementarrangements, agreementagreements and policies sponsored by the Purchaser or any of its Affiliates (other than any equity-based arrangements and severance), policy or commitment in which the Company Continuing Employee may be eligible to participate after the Closing; provided that the foregoing shall not apply except to the extent it would result in a duplication of benefitsbenefits would result.
(b) Effective as of the later of the Closing Date or the date such Transferred Employees would otherwise lose coverage under any Seller Plan that is a group health plan, Seller shall offer to such Transferred Employees continued coverage in such group health plan and their eligible dependents as if they had incurred a qualifying event under Code Section 4980B and Part 6 of Subtitle B of Title I of ERISA (“COBRA”) as of the Closing Date (the “Continued Coverage”). This Section 8.01 Seller shall survive cause all offers, notices, elections, premium payments and duration of Continued Coverage to be provided in accordance with the Closingrequirements of COBRA, is intended including the inclusion of an administrative charge of up to benefit 2% of the monthly premium. Purchaser shall (or shall cause the Company to) make available a group health plan for medical, dental and vision, coverage effective no later than January 1, 2019, to Transferred Employees who are then employed by the employees Company or its Subsidiaries and Seller may terminate the Continued Coverage for Transferred Employees when they become eligible for group health coverage through Purchaser or the Company. From the Closing Date through the earlier of the Company (1) effective date the Purchaser or its Affiliate makes medical, dental and vision coverage available to the Transferred Employees, or (2) the date such Transferred Employee’s Continued Coverage ceases (e.g., Transferee Employee’s non-payment of premium), the Company Subsidiariesshall reimburse 80% of each Transferred Employee’s Continued Coverage premiums as soon as practicable following such Transferred Employee providing evidence of premium payment. The Company shall reimburse Seller, as soon as reasonably practicable following delivery of a notice therefor and shall be binding on all successors and assigns reasonable evidence thereof, for any reasonable out-of-pocket costs or expenses not reimbursable through insurance or otherwise it directly incurs in connection with complying with this Section 8.03(b), including with respect to the provision of health reimbursement accounts or HRAs to the Buyer and the CompanyTransferred Employees.
(c) Effective as of the Closing, Buyer shall establish participation by the Company Continuing Employees in a tax-qualified defined contribution plan (the “Buyer 401(k) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or its Affiliates (collectively, the “Seller 401(k) Plans”). As soon as reasonably practicable after the Closing Date, the Seller 401(k) Plans shall, to the extent permitted by Section 401(k)(10) of the Code, make distributions available to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee.
(d) Promptly following the Closing Date, Seller and Purchaser shall pay cause a Code Section 414(l) trust-to-trust transfer of the account balances (and related assets and liabilities including participant loan notes) of Transferred Employees in the AMAG Pharmaceuticals, Inc. 401(k) Retirement Plan (the “Seller 401(k) Plan”) to the 401(k) plan adopted by Purchaser or its Affiliate (the “Purchaser 401(k) Plan”). Prior to such transfer, each Company Continuing Employee all amounts in respect Party shall provide the other Party with evidence that it has duly approved corporate and Plan documents that reasonably enable the transfer to occur as of vacation days a mutually agreeable date. As a condition precedent to any transfer of assets from the Seller 401(k) Plan to the Purchaser 401(k) Plan, each Party shall provide the other Party with (i) reasonable evidence that its 401(k) plan is tax-qualified within the meaning of sections 401(a) and 401(k) of the Code, and (ii) any other paid time off accrued prior duly executed corporate or plan documents that the other may reasonably require through advance notice to the other Party. From the Closing Date but not taken by until completion of the plan-to-plan transfer contemplated herein, Seller agrees to cause the plan administrator of the Seller 401(k) Plan to implement reasonable measures to prevent deemed distribution of Transferred Employee loan balances in the Seller 401(k) Plan, such Company Continuing Employee, as for example and Buyer without limitation extending the maximum cure period for loan defaults (subject to the maximum limitations of Code Section 72(p) and its associated regulations) and/or accepting loan repayments from Transferred Employees via check.
(d) Seller agrees that the Seller and its Affiliates shall have no commitment, Liability be solely responsible for satisfying the continuation coverage requirements of Section 4980B of the Code for all individuals who are “M&A qualified beneficiaries” as such term is defined in Treasury Regulation Section 54.4980B-9 who incur a qualifying event under any Seller Plan prior to or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after following the Closing. After As of and following the ClosingClosing Date, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; except as provided that, consistent with in Section 8.01(b8.03(c), Buyer the Company and its Subsidiaries shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with not have any liability or obligation under any Seller for such purposesPlan.
(e) Except as otherwise specifically provided in this Notwithstanding anything herein to the contrary, including without limitation Section 8.01, none of Buyer, its Affiliates7.01, the Company shall or the Company shall cause its Subsidiaries shall have to, refund any liability or obligation with respect amounts required to any employee benefit plan or arrangement be paid under Seller’s Employee Stock Purchase Plan as a result of the Seller or any Affiliate other than Closing to the appropriate employees in accordance with the terms of the Seller’s Employee Benefit Plans Stock Purchase Plan, and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) no such amounts shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retainbe taken into account as Current Liabilities, as applicable, all liabilities and obligations in respect items of the Employee Benefit PlansIndebtedness or as Transaction Expenses hereunder.
(f) On or immediately prior to the Closing Date, the Buyer Nothing in this Section 8.03 shall cause its applicable local Subsidiary in India to (i) issue offer letters confer upon any Person any right to continue in the employ or service of employment Purchaser, the Company or any of its Subsidiaries or any of their respective Affiliates, or interfere with or restrict in any way the rights of Purchaser, the Company or any of its Subsidiaries or any of their respective Affiliates, which rights are hereby expressly reserved, to discharge or terminate the Indian Employeesservices of any employee at any time for any reason whatsoever, with or without cause, (ii) inform subject to compliance with this Section 8.03, restrict Purchaser’s or the Indian Employees thatCompany’s or its Subsidiaries’ right to amend, as of the Closingmodify or terminate any Company Plan, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed or construed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947.
(g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, and shall not, (i) be treated as an establishment, amendment or other modification of any Employee Benefit Plan or any Purchaser employee benefit plan of Buyer or any of its Affiliatesplan, or shall limit the right of the Buyer or (iv) give any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon any Persons Person other than the Seller and the Buyer (includingparties to this Agreement, without limitation, including any Company Continuing Employee, former employee employees of the Company or any participant in any Employee Benefit Plan or any benefit plan of the Buyer or any of its Affiliates, or any dependent or beneficiary thereof)Subsidiaries, any rights or remedies, including right to continued employment with enforce the Buyer or any provisions of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreementthis Section 8.03 as a third-party beneficiary.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Employment and Benefit Arrangements. (a) During the period commencing at the Closing and ending on the date which is twelve (12) months from the Closing, Buyer shall and cause Precision to offer employment to the Transferred Employees, which offer shall cause be delivered to the Company to provide each employee of the Company or the Company Subsidiaries who remains employed immediately after the Closing, excluding, for the avoidance of doubt, the Indian Transferred Employees (“Company Continuing Employee”), with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Company Continuing Employee immediately prior to the Closing; and Sellers shall cooperate with and shall make available to Buyer, (ii) eligibility to participate in a Buyer 401(k) Plan on terms not less favorable than those provided to such Company Continuing Employee under a Seller 401(k) Plan immediately prior to the Closingextent permitted by applicable Laws, all information and (iii) other compensation opportunities documents as may be necessary to assist and employee benefits, coordinate Precision’s employment of the Transferred Employees. Buyer shall cause Precision to offer such employees salary and bonus packages that are, in the aggregate, substantially comparable to those provided to such Company Continuing Employee immediately the salary and bonus packages in place prior to the Closing. With respect Precision shall cause the Transferred Employees to any Company Continuing Employee whose employment is terminated without Cause by be covered under the Buyer (MasTec’s benefit plans, arrangements or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary agreements and shall provide cash severance benefits that aresuch employees with credit for service with PPL thereunder for purposes of eligibility and vesting. The Buyer shall waive any applicable waiting periods, in the aggregate, no less favorable pre-existing conditions or actively-at-work requirements (other than those severance benefits applicable to such Company Continuing Employee as of immediately prior to under MasTec’s 401(k) plan) and shall give the Closing Date (determined Transferred Employees and their eligible dependants credit under the severance practice described on Schedule 3.20 of new coverage or benefit plans for deductibles, co-payments and out-of-pocket payments that have been paid during the Company Disclosure Schedule).
(b) With respect to any employee benefit plan, program, arrangement, agreement, policy or commitment sponsored or maintained by the Buyer, year in which any Company Continuing Employee participate on such coverage or other plan modification occurs. Within ten (10) days after the Closing, the Sellers shall provide Buyer shall cause the Company and the Company Subsidiaries to: (i) waive all pre-existing conditionswith a schedule that reflects those deductibles, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employees, except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan in effect immediately prior to the Closing; (ii) provide each such Company Continuing Employee with credit for any co-payments and deductibles paid out of those pocket payments. MasTec shall cause MasTec’s 401(k) plan (or the 401(k) Plan of Buyer or an Affiliate of MasTec) to accept eligible rollover contributions from PPL’s 401(k) plan from the Transferred Employees who become participants in MasTec’s 401(k) plan (or the 401(k) plan of Buyer or an Affiliate of MasTec), subject to and conditioned upon Sellers providing MasTec with evidence satisfactory to MasTec that the failures in PPL’s 401(k) Plan reflected on Schedule 2.17(c) have been corrected, and MasTec’s otherwise being able to reasonably conclude in accordance with Treas. Reg. §1.401(a)(31)-1 A-14, that such amounts would constitute valid rollover contributions. Notwithstanding anything to the same extent such credit was given contrary in this Agreement (other than, for clarity, the year under Principals Employment Agreements), nothing in this Agreement shall require Buyer, MasTec or either Company to retain any Transferred Employee for any period of time after the similar plan in effect immediately prior Closing Date and subject to the Closing) in satisfying any requirements of applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service of the Company Continuing Employee with the Company or the Company SubsidiariesLaw, as applicableBuyer, for all purposes (including, without limitation, for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay defined benefit pension plan) under any benefit plan, program, arrangement, agreement, policy or commitment in which the Company Continuing Employee may be eligible to participate after the Closing; provided that the foregoing shall not apply to the extent it would result in a duplication of benefits. This Section 8.01 shall survive the Closing, is intended to benefit the Company MasTec and the employees of Companies reserve the Company and the Company Subsidiariesright, and shall be binding on all successors and assigns of the Buyer and the Company.
(c) Effective as of the Closing, Buyer shall establish participation by the Company Continuing Employees in a tax-qualified defined contribution plan (the “Buyer 401(k) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or its Affiliates (collectively, the “Seller 401(k) Plans”). As soon as practicable at any time after the Closing Date, to terminate such employment and to amend, modify or terminate any terms or conditions of employment, including any Employee Plan, program, policy, practice or arrangement or the Seller 401(k) Plans shall, to the extent permitted by Section 401(k)(10) compensation or working conditions of the Code, make distributions available to the applicable Company Continuing Transferred Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee.
(d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, . MasTec and Buyer shall have no commitment, Liability or obligation for any such amounts payable agree to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically provided in this Section 8.01, none of Buyer, its Affiliates, the Company or the Company Subsidiaries shall have any liability or obligation with respect to any employee benefit plan or arrangement of the Seller or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to Precision (i) issue offer letters to pay the Transferred Employees 2009 bonuses in an amount of employment to the Indian Employeesat least $500,000, (ii) inform the Indian Employees thatto pay field employees 2009 bonuses in an amount equal to at least $2,000,000, as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required to effectuate the transfer provide Transferred Employees with aggregate accrued vacations with a value of the Indian Employees at least $25,000 as of their date of hire, (iv) to provide to the Buyer’s applicable local Subsidiary in India as employees 2009 profit sharing payments of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date)least $200,000, and (iiiv) any other compensation and benefits required by Law and reasonably necessary to effectuate pay the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, stand-by-pay accrued as a current Liability in the event of a Deferred Actual Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947Balance Sheet.
(g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, and shall not, (i) be treated as an establishment, amendment or other modification of any Employee Benefit Plan or any employee benefit plan of Buyer or any of its Affiliates, or shall limit the right of the Buyer or any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon any Persons other than the Seller and the Buyer (including, without limitation, any Company Continuing Employee, former employee of the Company or any participant in any Employee Benefit Plan or any benefit plan of the Buyer or any of its Affiliates, or any dependent or beneficiary thereof), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Mastec Inc)
Employment and Benefit Arrangements. (a) During the period commencing at From and after the Closing and ending on Date, the date which is twelve (12) months from the Closing, Buyer shall and Purchaser shall cause the Company and its Subsidiaries to provide each employee honor all employment, severance, termination, consulting, retirement and other compensation and benefit plans, arrangements and agreements to which the Company and/or its Subsidiaries is a party with respect to employees of the Company or and its Subsidiaries, as such plans, arrangements and agreements are in effect on the date hereof (it being understood that this Section 6.07 shall not be deemed to prohibit the Purchaser, the Company or any of its Subsidiaries who remains employed immediately after from amending, modifying, suspending, replacing or terminating such arrangements in accordance with their terms). The Purchaser shall take all actions required so that eligible employees of the Closing, excluding, for the avoidance of doubt, the Indian Employees (“Company Continuing Employee”), and its Subsidiaries shall receive service credit with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Company Continuing Employee immediately prior to the Closing, (ii) eligibility to participate in a Buyer 401(k) Plan on terms not less favorable than those provided to such Company Continuing Employee under a Seller 401(k) Plan immediately prior to the Closing, and (iii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Company Continuing Employee immediately prior to the Closing. With respect to any service with the Company Continuing Employee whose employment is terminated without Cause by the Buyer and its Subsidiaries (or its applicable Subsidiarytheir predecessors) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of immediately prior to the Closing Date (determined for purposes of eligibility and vesting under the severance practice described on Schedule 3.20 of the Company Disclosure Schedule).
(b) With respect to any employee benefit plan, program, arrangement, agreement, policy plans and arrangements (excluding any defined benefit pension plans and equity or commitment sponsored or maintained by the Buyer, equity-related plans and arrangements) in which any Company Continuing Employee each such employee is eligible to participate on or after following the ClosingClosing Date; provided that no retroactive contributions will be required and provided, the Buyer shall cause the Company and the Company Subsidiaries to: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employeesfurther, except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan in effect immediately prior to the Closing; (ii) provide each such Company Continuing Employee with credit for any co-payments and deductibles paid (to the same extent such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service of the Company Continuing Employee with the Company or the Company Subsidiaries, as applicable, for all purposes (including, without limitation, for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay defined benefit pension plan) under any benefit plan, program, arrangement, agreement, policy or commitment in which the Company Continuing Employee may be eligible to participate after the Closing; provided that the foregoing shall not apply to the extent it would result in a the duplication of benefits. This Section 8.01 shall survive To the Closing, is intended to extent that the Purchaser modifies any coverage or benefit the Company and plans under which the employees of the Company and its Subsidiaries participate, the Company SubsidiariesPurchaser shall waive any applicable waiting periods, pre-existing conditions or actively-at-work requirements and shall give such employees credit under the new coverages or benefit plans for deductibles, co-insurance and out-of-pocket payments that have been paid during the year in which such coverage or plan modification occurs. This Section 6.07 shall survive the Closing, and shall be binding on all successors and assigns of the Buyer Purchaser, the Company and its Subsidiaries. Through December 31, 2015, Purchaser shall take all actions required so that each employee of the Company.
Company and its Subsidiaries (c) Effective determined as of the Closing, Buyer shall establish participation Closing Date) (i) receives base compensation and bonus opportunities (excluding any equity or equity-related opportunities) that are no less favorable than that provided by the Company Continuing Employees in a tax-qualified defined contribution plan (the “Buyer 401(k) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or its Affiliates (collectively, the “Seller 401(k) Plans”). As soon as practicable after the Closing Date, the Seller 401(k) Plans shall, Subsidiaries to the extent permitted by Section 401(k)(10) of the Code, make distributions available to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee.
(d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically provided in this Section 8.01, none of Buyer, its Affiliates, the Company or the Company Subsidiaries shall have any liability or obligation with respect to any employee benefit plan or arrangement of the Seller or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to (i) issue offer letters of employment to the Indian Employees, (ii) inform the Indian Employees receives benefits that, as of in the Closingaggregate, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required are substantially comparable to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; those benefits provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, Company or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided Subsidiaries to such Indian Employee employee immediately prior to the Closing Date and (which shall not be deemed to refer iii) to the Deferred Closing Date)extent that any such employee is terminated for other than “cause” following the Closing, (ii) other compensation opportunities and employee benefits, receives severance pay that are, in is no less than the aggregate, substantially comparable to those provided severance pay that would have been payable to such Indian Employee employee under the severance policy in effect immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947.
(gb) The Company and Buyer acknowledge and agree that all provisions Nothing contained in this Agreement are included for Section 6.07 shall obligate Purchaser, the sole benefit Company, or any of the respective parties. The provisions Company’s Subsidiaries to continue the employment of this Section 8.01 are not intended any employee of, or the service relationship of any other service provider to, and shall not, (i) be treated as an establishment, amendment or other modification of any Employee Benefit Plan or any employee benefit plan of Buyer the Company or any of its AffiliatesSubsidiaries for any period of time after the Closing, and this Section 6.07 shall not be construed to limit the ability of Purchaser, the Company, or shall limit the right any of the Buyer Company’s Subsidiaries to terminate the employment of any employee of, or the service relationship of any other service provider to, the Company or any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan Subsidiaries following the ClosingClosing in accordance with applicable Law and any pre-existing contractual relationship. Further, (ii) this Section 6.07 shall be binding upon and inure solely to the benefit of the parties to this Agreement, and nothing in this Section 6.07, express or implied, shall confer upon any Persons other than the Seller and the Buyer (includingPerson any rights or remedies of any nature whatsoever under or by reason of this Section 6.07 or be construed as an amendment, without limitationwaiver, any Company Continuing Employeetermination, former employee or creation of the Company or any participant in any Employee Benefit Plan or any benefit plan or compensation plan, program, agreement, Contract, policy, or arrangement of Purchaser, the Buyer Company, or any of its Affiliates, or any dependent or beneficiary thereof), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreementCompany’s Subsidiaries.
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Employment and Benefit Arrangements. (a) During the period commencing at the Closing and ending on the date which is twelve (12) months from the Closing, Buyer shall and shall cause the Company to continue to maintain all Employee Benefit Plans that provide each employee of the Company medical, surgical, hospitalization, dental, disability, life insurance, death or the Company Subsidiaries who remains employed immediately after the Closingsimilar benefits, excludingor to provide comparable benefits under new or existing Employee Benefit Plans, or under benefit plans maintained by Buyer or its Affiliates (“Buyer Benefit Plans”), for the avoidance remainder of doubt, the Indian Employees (“Company Continuing Employee”), with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, applicable plan year that is not less than that provided to such Company Continuing Employee immediately prior to includes the Closing, (ii) eligibility to participate in a Buyer 401(k) Plan on terms not less favorable than those provided to such Company Continuing Employee under a Seller 401(k) Plan immediately prior to the Closing, and (iii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Company Continuing Employee immediately prior to the ClosingClosing Date. With respect to any Company Continuing new Employee whose employment is terminated without Cause by the Benefit Plans or Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, Benefit Plans in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of immediately prior to the Closing Date (determined under the severance practice described on Schedule 3.20 which any employees of the Company Disclosure Schedule).
(b) With respect to any employee benefit plan, program, arrangement, agreement, policy or commitment sponsored or maintained by the Buyer, in which any Company Continuing Employee participate on or after the Closing, the Buyer shall, or shall cause the Company and the Company Subsidiaries to: (i) waive all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Company Continuing Employeesemployees, except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan in effect immediately prior to the Closing; (ii) use commercially reasonable efforts to provide each such Company Continuing Employee employee with credit for any co-payments and deductibles paid (to the same extent such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service of the Company Continuing Employee employees with the Company or the Company SubsidiariesCompany, as applicable, for all purposes (including, without limitation, for the purposes of eligibility to participate, vesting credit and entitlement to benefits, vacation and severance benefits (but excluding any benefit accrual under a final average pay defined benefit pension plan) under any benefit plan, program, arrangement, agreement, policy Employee Benefit Plan or commitment Buyer Benefit Plans in which the Company Continuing Employee such employees may be eligible to participate after the Closing; provided provided, that the {N0221423 } 61 foregoing shall not apply to the extent it would result in a duplication of benefits. This Section 8.01 7.13(a) shall survive the Closing, is intended to benefit the Company and the employees of the Company and the Company Subsidiaries, Closing and shall be binding on all successors and assigns of the Buyer and the Company.
(cb) Effective as The employees shall not be third party beneficiaries of the Closing, Buyer shall establish participation by the Company Continuing Employees in a tax-qualified defined contribution plan (the “Buyer 401(k) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or its Affiliates (collectively, the “Seller 401(k) Plans”)this Section 7.13. As soon as practicable after the Closing Date, the Seller 401(k) Plans shall, Except to the extent permitted by Section 401(k)(10) of the Code, make distributions available to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee.
(d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically expressly provided in this Section 8.017.13, none of Buyer, its Affiliates, the Company this Agreement shall not be deemed to amend or the Company Subsidiaries shall have modify any liability or obligation with respect to any employee benefit plan or arrangement of the Seller or any Affiliate other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately prior to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to (i) issue offer letters of employment to the Indian Employees, (ii) inform the Indian Employees that, as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India Company. The parties acknowledge and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and agree that the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which Section 7.13 shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, create any right in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947.
(g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, and shall not, (i) be treated as an establishment, amendment or other modification of any Employee Benefit Plan or any employee benefit plan of Buyer or any of its Affiliates, or shall limit the right of the Buyer or any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon any Persons other than the Seller and the Buyer (including, without limitation, any Company Continuing Employee, former employee of the Company or any participant in other Person to any Employee Benefit Plan or any benefit plan of continued employment with the Company, the Buyer or any of its their respective Affiliates, or any dependent or beneficiary thereof), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreement.
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Employment and Benefit Arrangements. (a) During the period commencing For at the Closing and ending on the date which is least twelve (12) months from following the ClosingClosing Date, Buyer the Purchaser shall and or shall cause the Company Surviving Corporation to provide each employee Employees of the Surviving Corporation and its Subsidiaries with compensation (including base salary, base wage rate and bonus opportunity, but excluding any equity‑based awards where allowed under applicable Law) that is equivalent to the compensation provided to such Employees prior to the Closing and to either (i) maintain in effect on behalf of Employees of the Company and its Subsidiaries all Plans, Foreign Plans and any other employment, severance, termination, consulting, retirement and other compensation and benefit plans, programs, arrangements, agreements and policies (other than any equity‑based plans) of the Company or its Subsidiaries as in effect as of the Company Subsidiaries who remains employed immediately after date hereof (the Closing, excluding, for the avoidance of doubt, the Indian Employees (“Company Continuing EmployeePlans”), with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Company Continuing Employee immediately prior to the Closing, (ii) eligibility to participate in a Buyer 401(kprovide all Employees of the Company and its Subsidiaries with compensation and benefit plans, programs, arrangements, agreements and policies (other than equity-based plans) Plan on terms not that are substantially no less favorable than those to the compensation and benefit plans, programs, arrangements, agreements and policies provided to similarly situated employees of the Purchaser; provided that such benefit plans, programs, arrangements, agreements and policies provide a level of benefits that in the aggregate is substantially equivalent to the aggregate level of benefits provided under the Company Continuing Employee Plans as of the Closing. Notwithstanding anything to the contrary in this Section 8.04, for fiscal year 2015, the Purchaser shall pay or shall cause to be paid in accordance with the terms of the Purchaser’s cash bonus plans (but utilizing the Company’s targets in determining the amount of any bonus payment thereunder) at such time as payment is made under the Purchaser’s cash bonus plan (but provided that such payment shall be made no later than March 15, 2016, to the extent required to avoid the imposition of a Seller 401(kpenalty under Section 409A of the Code) cash bonuses in an amount that at a minimum equals the amount of the bonus accrual reflected on the Latest Financial Statements, provided that such accrual shall have been made consistent with past practices of the Company and such accrual for a month shall not exceed one hundred percent (100%) of the monthly bonus amount for such month. The Purchaser shall take all actions reasonably necessary, to the extent permitted under applicable Law, so that Employees shall receive service credit for all purposes (other than for purposes of benefit accrual in any plans other than severance, termination, vacation, or paid time off plans, policies or arrangements) under any compensation or benefit plans, programs, arrangements, agreements and policies sponsored by the Purchaser or any of its Affiliates, except to the extent duplication of benefits would result. To the extent that the Purchaser modifies any welfare benefit coverage Plan immediately under which the Employees participate, the Purchaser shall waive any applicable waiting periods, pre‑existing conditions or actively‑at‑work requirements to the same extent such waiting periods, pre‑existing conditions or actively‑at‑work requirements would have been waived prior to the Closing, and (iii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to shall give such Company Continuing Employee immediately prior to the Closing. With respect to any Company Continuing Employee whose employment is terminated without Cause by the Buyer (or its applicable Subsidiary) during such 12-month period, Buyer or its applicable Subsidiary shall provide cash severance benefits that are, in the aggregate, no less favorable than those severance benefits applicable to such Company Continuing Employee as of immediately prior to the Closing Date (determined Employees credit under the severance practice described on Schedule 3.20 new coverages or benefit plans for deductibles, co‑insurance and out‑of‑pocket payments that have been paid or satisfied during the plan year in which such welfare benefit coverage or plan modification occurs. The Purchaser shall be solely responsible for any obligations arising under Section 4980B of the Company Disclosure Schedule).
(b) With respect to any employee benefit plan, program, arrangement, agreement, policy or commitment sponsored or maintained by the Buyer, in which any Company Continuing Employee participate on or after the Closing, the Buyer shall cause the Company and the Company Subsidiaries to: (i) waive all pre-existing conditions, exclusions and waiting periods Code with respect to participation and coverage requirements applicable to such Company Continuing Employees, except to the extent such pre-existing conditions, exclusions or waiting periods applied under the similar plan all “M&A qualified beneficiaries” as defined in effect immediately prior to the Closing; (ii) provide each such Company Continuing Employee with credit for any co-payments and deductibles paid (to the same extent such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out-of-pocket requirements; and (iii) recognize all continuous service of the Company Continuing Employee with the Company or the Company Subsidiaries, as applicable, for all purposes (including, without limitation, for purposes of eligibility to participate, vesting credit and entitlement to benefits, but excluding benefit accrual under a final average pay defined benefit pension plan) under any benefit plan, program, arrangement, agreement, policy or commitment in which the Company Continuing Employee may be eligible to participate after the Closing; provided that the foregoing shall not apply to the extent it would result in a duplication of benefitsTreasury Regulation §54.4980B‑9. This Section 8.01 shall survive the Closing, is intended to benefit the Company and the employees of the Company and the Company Subsidiaries, and shall be binding on all successors and assigns of the Buyer and the Company.
(c) Effective as of the Closing, Buyer shall establish participation by the Company Continuing Employees in a tax-qualified defined contribution plan (the “Buyer 401(k) Plan”) for the benefit of each Company Continuing Employee who, as of immediately prior to the Closing, was eligible to participate in a tax-qualified defined contribution plan maintained by Seller or its Affiliates (collectively, the “Seller 401(k) Plans”). As soon as practicable after the Closing Date, the Seller 401(k) Plans shall, to the extent permitted by Section 401(k)(10) of the Code, make distributions available to the applicable Company Continuing Employees, and the Buyer 401(k) Plan shall accept any such distribution (including loans) as a rollover contribution if so requested by any Company Continuing Employee.
(d) Promptly following the Closing Date, Seller shall pay to each Company Continuing Employee all amounts in respect of vacation days and other paid time off accrued prior to the Closing Date but not taken by such Company Continuing Employee, and Buyer shall have no commitment, Liability or obligation for any such amounts payable to any Continuing Company Employee, nor shall Buyer have any obligation to honor such accrued vacation days or paid time off after the Closing. After the Closing, that Company Continuing Employee’s eligibility for vacation and other paid time off shall be determined under Buyer’s vacation policy; provided that, consistent with Section 8.01(b), Buyer shall give each Company Continuing Employee full credit for such Company Continuing Employee’s service with Seller for such purposes.
(e) Except as otherwise specifically provided Nothing in this Section 8.01, none of Buyer, its Affiliates, the Company or the Company Subsidiaries 8.04 shall have give any liability or obligation with respect to any employee benefit plan or arrangement of the Seller or any Affiliate Third Party other than the Employee Benefit Plans and the Seller and its Affiliates (other than the Company and the Company Subsidiaries) shall retain all such liabilities and obligations on and following the Closing Date. Buyer and its applicable Subsidiaries (including the Company and Company Subsidiaries) shall assume or retain, as applicable, all liabilities and obligations in respect of the Employee Benefit Plans.
(f) On or immediately prior parties to the Closing Date, the Buyer shall cause its applicable local Subsidiary in India to (i) issue offer letters of employment to the Indian Employees, (ii) inform the Indian Employees that, as of the Closing, their employment, for all purposes, shall be with the Buyer’s applicable local Subsidiary in India and (iii) take all other actions required to effectuate the transfer of the Indian Employees to the Buyer’s applicable local Subsidiary in India as of the Closing, pursuant to applicable Law and the terms set forth in this Agreement; provided that the Seller shall use commercially reasonable efforts to cooperate in providing assistance reasonably requested by the Buyer in order to facilitate the transfer of the Indian Employees. The Buyer and the Seller agree that the Indian Employees shall, to the maximum extent possible and consistent with applicable Law and the terms set forth in this Agreement, transfer including any Employees, any right to enforce the Indian Employees to the Buyer’s applicable local Subsidiary in India without triggering the right of such employees to separation pay, or the occurrence of any other obligation or liability on behalf of the Buyer or the Seller that is not otherwise contemplated by this Agreement. The Buyer shall ensure that once the Indian Business has been transferred to the Buyer by the Seller, the Indian Employees shall be the employees of the Buyer’s applicable local Subsidiary in India (as the employer) and there shall be no interruption or break in the Indian Employees’ service, and the Seller shall take such actions necessary to ensure that the accumulations as of the Closing, if any, in respect of any employee benefit in respect of the India Employees that are capable of being transferred, are transferred by the Seller to the Buyer’s account, including to the provident fund and leave encashment (“Buyer India Employee Benefits”). For purposes of making contributions to the Buyer India Employee Benefits and for determination of the India Employees’ entitlement to the Buyer India Employee Benefits, in each case following the Closing, the Buyer shall take into consideration and provide credit to the Indian Employees for their period of service with the Seller and its Affiliates). During the period commencing at the Closing (which shall not be deemed to refer to the Deferred Closing Date) and ending on the date which is twelve (12) months from the Closing (which shall not be deemed to refer to the Deferred Closing Date), Buyer shall, or shall cause its applicable Subsidiary, to provide each Indian Employee continued employment with (i) an annual base salary or an hourly wage rate, as applicable, and annual cash incentive compensation opportunity, in each case, that is not less than that provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), (ii) other compensation opportunities and employee benefits, that are, in the aggregate, substantially comparable to those provided to such Indian Employee immediately prior to the Closing (which shall not be deemed to refer to the Deferred Closing Date), and (iii) any other compensation and benefits required by Law and reasonably necessary to effectuate the transfer of employment contemplated by this paragraph. Notwithstanding the foregoing, in the event of a Deferred Closing pursuant to Section 2.06(b) of this Agreement, the transfer process contemplated by this Section 8.01(f) shall be effectuated as of the Deferred Closing Date, it being understood that all other provisions and obligations of this paragraph shall remain applicable, with references to the Closing Date deemed to refer to the Deferred Closing Date. The Buyer shall comply with the applicable provisions of Section 25FF of the Indian Industrial Disputes Act, 1947 for Indian Employees who accept employment with the Buyer’s applicable local Subsidiary in India and who qualify as “workmen” under the Indian Industrial Disputes Act, 1947.
(g) The Company and Buyer acknowledge and agree that all provisions contained in this Agreement are included for the sole benefit of the respective parties. The provisions of this Section 8.01 are not intended to, 8.04 as a third‑party beneficiary. Nothing herein shall interfere with or otherwise limit the Purchaser’s or its Affiliates’ (including the Surviving Corporation’s and shall not, (iits Subsidiaries’) be treated as an establishment, amendment or other modification right to terminate the employment of any Employee Benefit Plan or at any employee benefit plan of Buyer or any of its Affiliates, or shall limit the right of the Buyer or any of its Affiliates to amend, terminate or otherwise modify any Employee Benefit Plan or other benefit plan following the Closing, (ii) confer upon any Persons other than the Seller and the Buyer (including, without limitation, any Company Continuing Employee, former employee of the Company or any participant in any Employee Benefit Plan or any benefit plan of the Buyer or any of its Affiliates, or any dependent or beneficiary thereof), any rights or remedies, including to continued employment with the Buyer or any of its Affiliates or to any particular term of condition of employment, or (iii) constitute or create an employment agreementtime.
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