Employment and Benefits Arrangements. With respect to any Company Employee who is subject to a collective bargaining agreement, this Section 5.9 only shall apply to those employment terms, compensation and employee benefits to the extent they are (i) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargaining, but are intended to be equivalent to the employment terms, compensation and employee benefits of Company Employees who are not subject to a collective bargaining agreement; provided that, in all events, the employment terms, compensation and employee benefits set forth in the applicable collective bargaining agreement (as in effect from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For the avoidance of doubt, nothing in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement following the Closing Date. (a) For a period of two years following the Closing Date (the “Continuation Period”), Parent shall provide, or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide (A) compensation (including any annual incentive compensation opportunities and bonuses) to the Company Employees that, in the aggregate, is no less favorable than the compensation provided to the Company Employees immediately prior to the Closing Date and (B) benefits (including pension and retiree medical benefits) to the Company Employees that, in the aggregate, are no less favorable than the benefits provided to the Company Employees immediately prior to the Closing Date. The foregoing shall not prohibit Parent from causing the Company and the Company Subsidiaries to adopt employment or other policies substantially similar to those applicable to employees of Parent and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion). (b) During the Continuation Period, Parent shall provide or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide each former employee of the Company or any Company Subsidiary who, immediately prior to the Closing Date, is receiving long-term disability payments or benefits (which shall be deemed to include medical benefits) or retiree medical benefits from the Company or any Company Subsidiary retiree medical benefits or long-term disability payments or benefits (as applicable) at a level that is substantially comparable to the level of such payments or benefits provided to such individuals immediately prior to the Closing Date. (c) Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, cause any “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) maintained by Parent or any of its subsidiaries (including the Company and the Company Subsidiaries) (including any vacation, paid time-off and severance plans) to recognize each Company Employee’s service with the Company or any of the Company Subsidiaries (as well as service with any predecessor of the Company or any Company Subsidiary, to the extent service with such predecessor is recognized by the Company or such Company Subsidiary at Closing), for all purposes, including determining eligibility to participate, level of benefits, vesting, benefit accruals and early retirement subsidies; provided, however, that such sd-625790 service need not be recognized to the extent that such recognition would result in any duplication of benefits. (d) During the calendar year in which the Closing Date occurs, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, waive, or cause to be waived, any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by Parent or any of its Subsidiaries in which Company Employees (and their eligible dependents) will be eligible to participate from and after the Closing Date, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable benefit plan of the Company immediately prior to the Closing Date. Parent shall, or shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, recognize, or cause to be recognized, the dollar amount of all co-payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) during the calendar year in which the Closing Date occurs for purposes of satisfying such year’s deductible and co-payment limitations under the relevant welfare benefit plans in which such Company Employee (and his or her eligible dependents ) will be eligible to participate from and after the Closing Date. (e) From and after the Closing Date, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, provide any required notice under WARN, and any similar state or local law, and otherwise comply with such laws with respect to the Company Employees. Notwithstanding the foregoing, no provision of this Agreement shall create any right in any employee to continued employment by the Company, Parent, or any respective Subsidiary or Affiliate thereof, or preclude the ability of the Company, Parent, or any respective Subsidiary or Affiliate thereof to terminate the employment of any employee for any reason, except as set forth in Section 5.9(a). This Section 5.9 shall be binding upon and shall inure solely to the benefit of the parties hereto (it being understood that other than the Shareholders’ Representative, no Company shareholder, including any shareholder that is also a Company Employee, is a party to this Agreement), and nothing in this Section 5.9, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Section 5.9 or is intended to be, shall constitute or be construed as an amendment to or modification of any employee benefit plan, program, arrangement or policy of the Company, Parent, or any respective Subsidiary or Affiliate thereof. No Company Employee (including any beneficiary or dependent thereof) shall be regarded for any purpose as a third-party beneficiary of this Agreement pursuant to this Section 5.9 and this Section 5.9 shall not create such rights in any such person. (f) Parent shall, for at least the first two years following the Closing, maintain the Company’s existing corporate offices in Juneau, Alaska and maintain the artifacts and property contained therein, continue the charitable contribution practices of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790
Appears in 1 contract
Samples: Merger Agreement (Avista Corp)
Employment and Benefits Arrangements. With respect to any Company Employee who is subject to a collective bargaining agreement, this Section 5.9 only shall apply to those employment terms, compensation and employee benefits to the extent they are (i) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargaining, but are intended to be equivalent to the employment terms, compensation and employee benefits of Company Employees who are not subject to a collective bargaining agreement; provided that, in all events, the employment terms, compensation and employee benefits set forth in the applicable collective bargaining agreement (as in effect from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For the avoidance of doubt, nothing in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement following the Closing Date.
(a) For Within a reasonable period of two years following time after the Closing Date Effective Time, the Buyer shall enroll the Continuing Employees and Non-Signing Employees in the Buyer’s employee benefit plans (including any severance plans) for which such employees are eligible (the “Continuation PeriodBuyer Plans”), Parent shall provide, or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide (A) compensation (including any annual incentive compensation opportunities and bonuses) to the Company Employees providing for benefits that, in the aggregateBuyer’s discretion, is no less favorable than the compensation provided to the Company Employees immediately prior to the Closing Date and (B) benefits (including pension and retiree medical benefits) to the Company Employees that, are substantially similar in the aggregate, are no less favorable than aggregate to the benefits provided by the Buyer to its employees (excluding the Continuing Employees and Non-Signing Employees) who are generally similarly situated (i.e. regular full time, part-time, temporary, intern) to such Employees, and the Buyer shall, to the Company Employees immediately extent permissible under such Buyer Plan, recognize the prior to the Closing Date. The foregoing shall not prohibit Parent from causing the Company and the Company Subsidiaries to adopt employment or other policies substantially similar to those applicable to employees of Parent and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion).
(b) During the Continuation Period, Parent shall provide or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide each former employee of the Company or any Company Subsidiary who, immediately prior to the Closing Date, is receiving long-term disability payments or benefits (which shall be deemed to include medical benefits) or retiree medical benefits from the Company or any Company Subsidiary retiree medical benefits or long-term disability payments or benefits (as applicable) at a level that is substantially comparable to the level of such payments or benefits provided to such individuals immediately prior to the Closing Date.
(c) Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, cause any “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) maintained by Parent or any of its subsidiaries (including the Company and the Company Subsidiaries) (including any vacation, paid time-off and severance plans) to recognize each Company Employee’s service with the Company or any of each of such Employees for purposes of eligibility to participate and vesting (but not benefit accruals) under the Company Subsidiaries (as well as service with any predecessor of the Company or any Company SubsidiaryBuyer Plans. Buyer shall cause each applicable Buyer Plan to waive, to the extent service with such predecessor is recognized permitted by the Company or such Company Subsidiary at Closing), for all purposes, including determining eligibility to participate, level of benefits, vesting, benefit accruals and early retirement subsidies; provided, however, that such sd-625790 service need not be recognized to the extent that such recognition would result in any duplication of benefits.
(d) During the calendar year in which the Closing Date occurs, Parent shall, and shall cause its Subsidiaries (including the Company applicable Law and the Company Subsidiaries) torelevant insurance carriers, waiveeligibility waiting periods, or cause to be waived, any evidence of insurability requirements and pre-existing condition limitations, exclusions, actively-at-work requirements . To the extent permitted by applicable Law and waiting periods under any welfare benefit plan maintained by Parent or any of its Subsidiaries in which Company Employees (the relevant insurance carriers and their eligible dependents) will be eligible to participate from and after the Closing Date, except to the extent applicable in the plan year that such precontains the Closing Date and subject to the timing of the addition of the Continuing Employees and Non-existing condition limitationsSigning Employees to the Buyer Plans and subject to the reasonable cooperation of the applicable Employee, exclusions, activelythe Continuing Employees and Non-at-work requirements and waiting periods would not have been satisfied or waived Signing Employees shall be given credit under the comparable benefit plan of the Company immediately prior to the Closing Date. Parent shall, or shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, recognize, or cause to be recognized, the dollar amount of all co-payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) applicable Buyer Plan for amounts paid during the calendar year in which the Closing Date occurs under a corresponding benefit plan of the Company for purposes of satisfying such year’s deductible and applying deductibles, co-payment limitations payments and out-of-pocket maximums, as though such amounts had been paid in accordance with the terms and conditions of the Buyer Plan. Notwithstanding the forgoing, the provisions of this Section 5.6(a) shall not apply to the employees of the German Sub.
(b) After prior consultation with the Company, the Hiring Affiliate may contact the Signing Employees in connection with preparing, making or determining whether to make offers of new employment with the Hiring Affiliate, on terms and conditions that the Hiring Affiliate determines in its sole discretion; provided that the Company may require, as a condition to the Hiring Affiliate making such contact with a Signing Employee, that a member of the Company’s management team or human resources department be allowed to participate in any call or meeting with such Signing Employee. The Company shall cooperate with and use its commercially reasonable efforts to assist the Hiring Affiliate in its efforts to secure satisfactory employment arrangements with the Signing Employees and to obtain executed Offer Package Agreements from each such Signing Employee receiving an offer of employment with the Hiring Affiliate. Each Signing Employee (excluding, for the sake of clarity, the Non-Signing Employees) who accepts an offer of employment with the Hiring Affiliate, executes and delivers each Offer Package Agreement and actually becomes employed with the Hiring Affiliate is hereafter referred to as a “Continuing Employee”. The employment by the Surviving Corporation of the Signing Employees who are Continuing Employees shall continue following the Closing and end on a date to be designated by the Hiring Affiliate and the employment by the Hiring Affiliate of the Signing Employees who are Continuing Employees shall commence at 12:01 A.M. on the day after such date. The employment of the Non-Signing Employees shall continue following the Closing. All Continuing Employees will be employed by the Hiring Affiliate on an at-will basis (terminable with or without cause and with or without notice) except for Continuing Employees located in a jurisdiction that does not recognize the “at will” employment concept and with respect to the Signing Employees who are Continuing Employees on terms of employment determined by the Hiring Affiliate as set forth in the Offer Package Agreements.
(c) Each Signing Employee who is a Continuing Employee shall be required, as a condition to employment with the Hiring Affiliate, to execute and deliver to the Buyer, such Signing Employee’s Offer Package Agreement.
(d) Buyer or an Affiliate of the Buyer will distribute the aggregate amounts, if any, payable under the relevant welfare benefit plans Carve-Out Plan on the terms and conditions set forth in the Carve-Out Plan and as set forth in Section 1.9(c). Notwithstanding the foregoing, solely with respect to the distributions under the Carve-Out Plan that have been submitted for approval of the Stockholders under Section 280G(b)(5)(B) and for which approval was not obtained, such distributions shall not be paid to the extent they would result in a “disqualified individual’s” (as defined in Section 280G(c) of the Code) receipt of “parachute payments” under Section 280G(b)(2) of the Code. The Company Employee will use its commercially reasonable efforts to obtain from each recipient of an award under the Carve-Out Plan an acknowledgement of receipt and waiver (the “Carve-Out Waiver Agreement”) in form and his substance satisfactory to the Buyer. Without the prior written consent of Buyer, the Company will not amend, cancel, modify or her eligible dependents ) will be eligible to participate from and after terminate the Closing DateCarve-Out Plan or any Carve-Out Waiver Agreement.
(e) From Buyer shall pay, or cause the Hiring Affiliate to pay, to each Continuing Employee and after Non-Signing Employee an annual cash bonus for the Closing 2014 calendar year at the time such annual cash bonus would otherwise have been paid by the Company in the ordinary course of business in accordance with the terms of the applicable Company Benefit Plan existing as of the Agreement Date, Parent shallbased on the performance level actually achieved; provided, and however, that such aggregate bonus amount shall cause its Subsidiaries (including not be less than the Company and the Company Subsidiaries) to, provide any required notice under WARN, and any similar state or local law, and otherwise comply with such laws with respect to the Company Employeesamount set forth on Schedule 5.6(e). Notwithstanding the foregoingforgoing, no provision the provisions of this Agreement Section 5.6(e) shall create any right in any employee not apply to continued employment by the Company, Parent, or any respective Subsidiary or Affiliate thereof, or preclude the ability employees of the Company, Parent, or any respective Subsidiary or Affiliate thereof to terminate the employment of any employee for any reason, except as set forth in Section 5.9(a). This Section 5.9 shall be binding upon and shall inure solely to the benefit of the parties hereto German Sub.
(it being understood that other than the Shareholders’ Representative, no Company shareholder, including any shareholder that is also a Company Employee, is a party to this Agreement), and nothing f) Nothing in this Section 5.95.6, express expressed or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Section 5.9 or is intended to be5.6. Without limiting the foregoing, shall constitute or be construed as an amendment to or modification no provision of this Section 5.6 will create any employee benefit plan, program, arrangement or policy of the Company, Parent, or any respective Subsidiary or Affiliate thereof. No Company Employee (including any beneficiary or dependent thereof) shall be regarded for any purpose as a third-third party beneficiary of this Agreement pursuant to this Section 5.9 and this Section 5.9 shall not create such rights in any such personcurrent or former employee, director or consultant of Company in respect of continued employment (or resumed employment) or any other matter. Nothing in this Section 5.6 is intended (i) to amend any Company Benefit Plan or any benefit plans or programs of Buyer or the Hiring Affiliate, (ii) interfere with Buyer’s or the Hiring Affiliate’s right from and after the Closing Date to amend or terminate any Company Benefit Plan or benefit plan or program of Buyer or the Hiring Affiliate, or (iii) interfere with Buyer’s or the Hiring Affiliate’s right from and after the Effective Time to terminate the employment or provision of services by any director, employee, independent contractor or consultant.
(f) Parent shall, for at least the first two years following the Closing, maintain the Company’s existing corporate offices in Juneau, Alaska and maintain the artifacts and property contained therein, continue the charitable contribution practices of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790
Appears in 1 contract
Employment and Benefits Arrangements. With respect to any Company Employee who is subject to a collective bargaining agreement, this Section 5.9 only (a) Continuing Employees shall apply to those employment terms, compensation and receive standard employee benefits offered by Parent to the extent they are (i) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargaining, but are intended to be equivalent to the employment terms, compensation and employee benefits its employees of Company Employees who are not subject to a collective bargaining agreementcomparable status; provided that, until such time as Continuing Employees participate in all events, employee benefit plans provided by the employment terms, compensation Buyer and employee benefits set forth in the applicable collective bargaining agreement (as in effect its Affiliates from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For the avoidance of doubt, nothing Continuing Employees shall continue to participate in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement following the Closing Date.
(a) For a period of two years following the Closing Date (the “Continuation Period”), Parent shall provide, or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide (A) compensation (including any annual incentive compensation opportunities and bonuses) to the Company Employees that, in the aggregate, is no less favorable than the compensation provided to the Company Employees immediately prior to the Closing Date and (B) benefits (including pension and retiree medical benefits) to the Company Employees that, in the aggregate, are no less favorable than the benefits provided to the Company Employees immediately prior to the Closing Date. The foregoing shall not prohibit Parent from causing the Company and the Company Subsidiaries to adopt employment or other policies substantially similar to those applicable to employees of Parent and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion)Benefit Plans.
(b) During Buyer shall or shall cause the Continuation Period, Parent shall provide or cause its Subsidiaries (including the Company and the Company Subsidiaries) Surviving LLC to provide each former employee recognize as of the Company or any Company Subsidiary whoClosing all accrued but unused vacation and sick pay of the Employees on Schedule 5.6(b); provided, immediately such time shall be utilized by such Employee prior to the end of Parent’s current fiscal year. For purposes of eligibility and vesting under the employee benefit plans of the Buyer and their respective Affiliates providing benefits to any Continuing Employees after the Closing Dateother than the Company Benefit Plans (the “New Plans”), is receiving long-term disability payments or and for purposes of accrual of vacation and severance benefits (which under applicable New Plans, each Continuing Employee shall be deemed to include medical benefits) credited with his or retiree medical benefits from her years of service recognized by the Company or any Company Subsidiary retiree medical benefits or long-term disability payments or benefits (as applicable) at a level that is substantially comparable before the Closing, to the level same extent as such Continuing Employee was entitled, before the Closing, to credit for such service under any similar Company Benefit Plan to the extent permitted by law. In addition, and without limiting the generality of the foregoing: (i) each Continuing Employee shall be immediately eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a comparable Company Benefit Plan in which such Continuing Employee participated immediately before the replacement; and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Continuing Employee, the Buyer shall take commercially reasonable efforts to: (A) cause all pre-existing condition exclusions and actively-at-work requirements of such payments New Plan to be waived for such Continuing Employee and his or benefits provided her covered dependents, and (B) cause any eligible expenses incurred by such Continuing Employee and his or her covered dependents under a Company Benefit Plan during the plan year in which the Closing occurs to be taken into account under any corresponding New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such individuals immediately prior to Continuing Employee and his or her covered dependents for the Closing Date.applicable plan year as if such amounts had been incurred under and in accordance with such New Plan. DB3/200169974.12
(c) Neither Parent shallnor Buyer is under any obligation to retain any Employee, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) toindependent contractor or consultant, cause or provide any “employee benefit plan” (as defined in Section 3(3) of ERISAEmployee, whether independent contractor or not subject to ERISA) maintained by Parent or any of its subsidiaries (including the Company and the Company Subsidiaries) (including any vacation, paid time-off and severance plans) to recognize each Company Employee’s service with the Company or any of the Company Subsidiaries (as well as service consultant with any predecessor of the Company or any Company Subsidiary, to the extent service with such predecessor is recognized by the Company or such Company Subsidiary at Closing), for all purposes, including determining eligibility to participate, level of benefits, vesting, benefit accruals and early retirement subsidies; provided, however, that such sd-625790 service need not be recognized to the extent that such recognition would result in any duplication of particular benefits.
(d) During the calendar year in which the Closing Date occurs, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, waive, This Section 5.6 is not intended to amend any benefit plans or cause to be waived, any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by programs of Parent or any of its Subsidiaries in which Company Employees (and their eligible dependents) will be eligible to participate from and after the Closing Date, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable benefit plan of the Company immediately prior to the Closing Date. Parent shall, or shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, recognize, or cause to be recognized, the dollar amount of all co-payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) during the calendar year in which the Closing Date occurs for purposes of satisfying such year’s deductible and co-payment limitations under the relevant welfare benefit plans in which such Company Employee (and his or her eligible dependents ) will be eligible to participate from and after the Closing DateBuyer.
(e) From and after the Closing Date, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, provide any required notice under WARN, and any similar state or local law, and otherwise comply with such laws with respect to the Company Employees. Notwithstanding the foregoing, no provision of this Agreement shall create any right in any employee to continued employment by the Company, Parent, or any respective Subsidiary or Affiliate thereof, or preclude the ability of the Company, Parent, or any respective Subsidiary or Affiliate thereof to terminate the employment of any employee for any reason, except as set forth in Section 5.9(a). This Section 5.9 shall be binding upon and shall inure solely to the benefit of the parties hereto (it being understood that other than the Shareholders’ Representative, no Company shareholder, including any shareholder that is also a Company Employee, is a party to this Agreement), and nothing in this Section 5.9, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Section 5.9 or is intended to be, shall constitute or be construed as an amendment to or modification of any employee benefit plan, program, arrangement or policy of the Company, Parent, or any respective Subsidiary or Affiliate thereof. No Company Employee (including any beneficiary or dependent thereof) shall be regarded for any purpose as a third-party beneficiary of this Agreement pursuant to this Section 5.9 and this Section 5.9 shall not create such rights in any such person.
(f) Parent shall, for at least the first two years following the Closing, maintain the Company’s existing corporate offices in Juneau, Alaska and maintain the artifacts and property contained therein, continue the charitable contribution practices of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790
Appears in 1 contract
Samples: Merger Agreement (PTC Inc.)
Employment and Benefits Arrangements. With respect Prior to any the Closing, Seller shall transfer to the Company Employee the employment of each employee who primarily performs services for the Business but who is subject not employed by the Company or its Subsidiaries and shall take such actions as are necessary to a collective bargaining agreement, this Section 5.9 only fully vest all Employees’ account balances under the Orthofix Deferred Compensation Plan; provided that the employment of the direct sales representatives employed by Orthofix Limited (formerly known as Intavent Orthofix Limited) who primarily sell Breg products shall apply to those employment terms, compensation and employee benefits not be transferred to the extent they are (i) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargaining, but are intended to be equivalent Company prior to the employment termsClosing. Buyer agrees to use commercially reasonable efforts so that, compensation during the period commencing at the Closing and employee benefits ending on first anniversary of Company the Closing Date, the Employees who are salaried employees and not subject to a collective bargaining agreement; provided that, in all events, the employment terms, compensation and employee benefits set forth in the applicable collective any collective-bargaining agreement (as in effect from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For the avoidance of doubt, nothing in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement following the Closing Date.
(a) For a period of two years following the Closing Date (the “Continuation PeriodSalaried Employees”)) will, Parent shall providewhile employed by Buyer or its Subsidiaries, or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide (A) compensation (including any annual incentive be provided with compensation opportunities and bonuses) welfare benefits which are substantially comparable in the aggregate to the Company Employees that, in the aggregate, is no less favorable than the compensation those (excluding equity-based compensation) provided to such Salaried Employees as of the Company Employees immediately prior date of this Agreement. If permitted under the terms of each applicable plan, after the Closing, Buyer shall use commercially reasonable efforts to the Closing Date and (B) benefits (including pension and retiree medical benefits) to the Company Employees that, cause any employee benefit plan of Buyer in the aggregate, are no less favorable than the benefits provided to the Company Employees immediately prior to the Closing Date. The foregoing shall not prohibit Parent from causing the Company and the Company Subsidiaries to adopt employment or other policies substantially similar to those applicable to which employees of Parent and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion).
(b) During the Continuation Period, Parent shall provide or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide each former employee of the Company or any Company Subsidiary who, immediately prior to the Closing Date, is receiving long-term disability payments or benefits (which shall be deemed to include medical benefits) or retiree medical benefits from the Company or any Company Subsidiary retiree medical benefits or long-term disability payments or benefits (as applicable) at a level that is substantially comparable to the level of such payments or benefits provided to such individuals immediately prior to the Closing Date.
(c) Parent shall, and shall cause its Subsidiaries (including “Employees”) are eligible to participate to credit, for purposes of eligibility and vesting thereunder (other than vesting of future equity awards), and for purposes of determination of levels of benefits for any vacation and severance benefits (but not for purposes of benefit accrual under defined benefit pension or similar plans), service by the Company Employees with Seller and the Company Subsidiaries) to, cause any “employee benefit plan” (Seller Affiliates as defined in Section 3(3) of ERISA, whether or not subject to ERISA) maintained by Parent or any of its subsidiaries (including the Company and the Company Subsidiaries) (including any vacation, paid time-off and severance plans) to recognize each Company Employee’s if such service were with the Company or any of the Company Subsidiaries (as well as service with any predecessor of the Company or any Company SubsidiaryBuyer, to the same extent such service with was credited under a comparable Plan. Notwithstanding anything herein to the contrary, no such predecessor is recognized by the Company or such Company Subsidiary at Closing), for all purposes, including determining eligibility to participate, level crediting of benefits, vesting, benefit accruals and early retirement subsidies; provided, however, that such sd-625790 service need not shall be recognized required to the extent that such recognition it would result in any a duplication of benefits.
(d) During . As of the calendar year Closing, the Employees shall cease to participate in which the Closing Date occurs, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, waive, or cause to be waived, any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods accrue benefits under any welfare benefit plan maintained by Parent or any of its Subsidiaries Plan that is not a Company Plan. Nothing contained in which Company Employees (and their eligible dependents) will be eligible to participate from and after the Closing Date, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable benefit plan of the Company immediately prior to the Closing Date. Parent shall, or shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, recognize, or cause to be recognized, the dollar amount of all co-payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) during the calendar year in which the Closing Date occurs for purposes of satisfying such year’s deductible and co-payment limitations under the relevant welfare benefit plans in which such Company Employee (and his or her eligible dependents ) will be eligible to participate from and after the Closing Date.
(e) From and after the Closing Date, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, provide any required notice under WARN, and any similar state or local law, and otherwise comply with such laws with respect to the Company Employees. Notwithstanding the foregoing, no provision of this Agreement shall create (i) constitute or be deemed an amendment to any right in Plan or Company Plan or any employee to continued employment by other compensation or benefit plan, program or arrangement, (ii) shall alter or limit Buyer’s, the Company’s or its Subsidiaries’ ability to amend, Parentmodify or terminate any particular benefit plan, program, agreement or any respective Subsidiary or Affiliate thereofarrangement, or preclude the ability of the Company, Parent, or any respective Subsidiary or Affiliate thereof to terminate the employment of any employee for any reason, except as set forth in Section 5.9(a). This Section 5.9 shall be binding upon and shall inure solely to the benefit of the parties hereto (it being understood that other than the Shareholders’ Representative, no Company shareholder, including any shareholder that is also a Company Employee, is a party to this Agreement), and nothing in this Section 5.9, express or implied, iii) is intended to confer upon any other person current or former employee any rights right to employment or remedies continued employment for any period of any nature whatsoever under or time by reason of this Section 5.9 Agreement, or any right to a particular term or condition of employment, or (iv) is intended to beconfer upon any individual (including employees, shall constitute or be construed as an amendment to or modification of any employee benefit plan, program, arrangement or policy of the Company, Parentretirees, or dependents or beneficiaries of employees or retirees) any respective Subsidiary or Affiliate thereof. No Company Employee (including any beneficiary or dependent thereof) shall be regarded for any purpose right as a third-party beneficiary of this Agreement pursuant to this Section 5.9 and this Section 5.9 shall not create such rights in any such personAgreement.
(f) Parent shall, for at least the first two years following the Closing, maintain the Company’s existing corporate offices in Juneau, Alaska and maintain the artifacts and property contained therein, continue the charitable contribution practices of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790
Appears in 1 contract
Samples: Stock Purchase Agreement (Orthofix International N V)
Employment and Benefits Arrangements. With respect to any Company Employee who is subject to a collective bargaining agreement, this Section 5.9 only shall apply to those employment terms, compensation and employee benefits to the extent they are (i) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargaining, but are intended to be equivalent to the employment terms, compensation and employee benefits of Company Employees who are not subject to a collective bargaining agreement; provided that, in all events, the employment terms, compensation and employee benefits set forth in the applicable collective bargaining agreement (as in effect from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For the avoidance of doubt, nothing in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement following the Closing Date.
(a) For a period of two years following the Closing Date (the “Continuation Period”)Except as specifically provided herein, Parent shall provide, or Buyer will cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide (A) compensation (including any annual incentive compensation opportunities and bonuses) to the Company Employees that, in the aggregate, is no less favorable than the compensation provided to the Company Employees immediately service rendered prior to the Closing Date by Covered Employees to be recognized for all purposes under all employee benefit plans, programs, policies and arrangements (Bincluding, but not limited to, paid time off and severance) benefits of Buyer (including, following the Closing, the Acquired Companies), to the same extent that such service was recognized under the corresponding plans of Seller (including pension and retiree medical benefitsthe Acquired Companies) to the Company Employees thatfor those purposes; provided, that nothing herein shall result in the aggregateduplication of any benefits. Without in any way limiting the foregoing, are no less favorable than Covered Employees will not be subject to any pre-existing condition limitation or waiting period under any health plan of Buyer or its Affiliates for any condition for which they would have been entitled to coverage, or satisfied any waiting period, under the benefits provided to corresponding plan of the Company Employees Seller (including the Acquired Companies) in which they participated immediately prior to the Closing Date. The foregoing shall not prohibit Parent from causing the Company Buyer will cause such Covered Employees to be given credit under such health plans of Buyer for co-payments made and the Company Subsidiaries to adopt employment or other policies substantially similar to those applicable to employees of Parent deductibles and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion).
(b) During the Continuation Period, Parent shall provide or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide each former employee of the Company or any Company Subsidiary who, immediately prior to the Closing Date, is receiving longout-term disability payments or benefits (which shall be deemed to include medical benefits) or retiree medical benefits from the Company or any Company Subsidiary retiree medical benefits or longof-term disability payments or benefits (as applicable) at a level that is substantially comparable to the level of such payments or benefits provided to such individuals immediately pocket expenses satisfied prior to the Closing Date.
(cb) Parent shallEach Acquired Company shall be responsible for and continue to pay, whether before (assuming the completion of the Pre-Closing Restructuring) or after the Closing Date, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, cause any “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) maintained by Parent or any of its subsidiaries (including the Company and the Company Subsidiaries) (including any vacation, paid time-off and severance plans) to recognize each Company Employee’s service with the Company or any of the Company Subsidiaries (as well as service with any predecessor of the Company or any Company Subsidiary, to the extent service with such predecessor is recognized by the Company or such Company Subsidiary at Closing), for all purposes, including determining eligibility to participate, level of benefits, vesting, benefit accruals and early retirement subsidies; provided, however, that such sd-625790 service need not be recognized to the extent that such recognition would result in any duplication of benefits.
(d) During the calendar year in which the Closing Date occurs, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, waive, or cause to be waived, any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by Parent or any of its Subsidiaries in which Company Employees (and their eligible dependents) will be eligible to participate from on and after the Closing Date, except Buyer shall bear and shall cause to be paid, all expenses and benefits under Benefits Plans and other employee benefit plans that are sponsored by any Acquired Company for Covered Employees, former employees of any Acquired Company and the dependents and beneficiaries thereof (to the extent that such pre-existing condition limitationsCovered Employees, exclusions, actively-at-work requirements former employees and waiting periods would dependents and beneficiaries thereof are entitled to participate in such Benefits Plans) and Seller shall not have been satisfied any liability or waived under the comparable benefit plan of the Company immediately prior to the Closing Date. Parent shall, obligations on or shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, recognize, or cause to be recognized, the dollar amount of all co-payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) during the calendar year in which after the Closing Date occurs for purposes of satisfying with respect to expenses and benefits under such year’s deductible Benefits Plans and co-payment limitations under the relevant welfare other employee benefit plans in which such Company Employee (and his or her eligible dependents ) will be eligible to participate from and after the Closing Dateplans.
(ec) From Each of Buyer and after Seller acknowledge and agree that all provisions contained in this Section 5.13(c) are included for the Closing Date, Parent shallsole benefit of Buyer and Seller, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, provide any required notice under WARN, and any similar state or local law, and otherwise comply with such laws with respect to the Company Employees. Notwithstanding the foregoing, no provision of this Agreement shall create any right in any employee to continued employment by the Company, Parent, or any respective Subsidiary or Affiliate thereof, or preclude the ability of the Company, Parent, or any respective Subsidiary or Affiliate thereof to terminate the employment of any employee for any reason, except as set forth in Section 5.9(a). This Section 5.9 shall be binding upon and shall inure solely to the benefit of the parties hereto (it being understood that other than the Shareholders’ Representative, no Company shareholder, including any shareholder that is also a Company Employee, is a party to this Agreement), and nothing in this Section 5.9Agreement, whether express or implied, is intended to confer upon shall (i) create any third party beneficiary or other rights in any other person person, including any rights Covered Employee or remedies former employee of the Acquired Companies, or any nature whatsoever dependent or beneficiary thereof under or by reason of this Section 5.9 or is intended to be5.13(c), shall constitute (ii) amend or be construed as an amendment deemed to amend any Benefits Plan or modification of any employee other compensation or benefit plan, program, policy or arrangement or policy of (iii) entitle any Employee to continued employment with the Company, Parent, Acquired Companies or restrict any respective Subsidiary or Affiliate thereof. No Company Employee (including any beneficiary or dependent thereof) shall be regarded for any purpose as a third-party beneficiary of this Agreement pursuant to this Section 5.9 and this Section 5.9 shall not create such rights in any such person.
(f) Parent shall, for at least the first two years following the Closing, maintain the Acquired Company’s existing corporate offices in Juneau, Alaska and maintain ability to terminate the artifacts and property contained therein, continue the charitable contribution practices employment of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790any Employee.
Appears in 1 contract
Samples: Quotas Purchase Agreement (Compass Minerals International Inc)
Employment and Benefits Arrangements. With respect to any Company Employee who is subject to a collective bargaining agreement, this Section 5.9 only shall apply to those employment terms, compensation and employee benefits to the extent they are (i) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargaining, but are intended to be equivalent to the employment terms, compensation and employee benefits of Company Employees who are not subject to a collective bargaining agreement; provided that, in all events, the employment terms, compensation and employee benefits set forth in the applicable collective bargaining agreement (as in effect from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For the avoidance of doubt, nothing in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement following the Closing Date.
(a) For a period Each Acquired Group Company Employee employed as of two years following the Closing Date (the “Continuation Period”), Parent shall provide, or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide (A) compensation (including any annual incentive compensation opportunities and bonuses) to the Company Employees that, in the aggregate, is no less favorable than the compensation provided to the Company Employees immediately prior to the Closing Date and (Bthe “Continuing Employees”) benefits (including pension and retiree medical benefits) to shall continue employment with the applicable Acquired Group Company Employees that, in immediately following the aggregate, are no less favorable than the benefits provided to the Company Employees immediately prior to the Closing Date. The foregoing shall not prohibit Parent from causing the Company and the Company Subsidiaries to adopt employment or other policies substantially similar to those applicable to employees of Parent and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion)Closing.
(b) During the Continuation period commencing on the Closing Date and ending on the first anniversary of the Closing Date, or such shorter period as a Continuing Employee continues employment with Buyer, the Acquired Companies, the Acquired Group Companies or their Affiliates following the Closing Date (such period, the “Protected Period”), Parent Buyer shall provide or cause its Subsidiaries (including the Company and the Company SubsidiariesAcquired Group Companies) to provide each former Continuing Employee with an annual base salary, short term cash incentive compensation opportunity (excluding any equity or equity based, severance, retention or nonqualified deferred compensation arrangements), and employee benefits (excluding any defined benefit pension, equity or equity-based, nonqualified deferred compensation, or post-termination or retiree health or welfare benefits) that, in each case, are (i) no less favorable in the aggregate than the annual base salary, short-term cash incentive compensation opportunity (excluding any equity or equity based, severance, retention or nonqualified deferred compensation arrangements) and employee benefits, (excluding any defined benefit pension, equity or equity-based, nonqualified deferred compensation, or post-termination or retiree health or welfare benefits) respectively (together “Compensation”), provided to similarly situated employees of the Company Buyer or any Company Subsidiary who, immediately prior to (ii) no less favorable than the Closing Date, is receiving long-term disability payments or benefits (which shall be deemed to include medical benefits) or retiree medical benefits from the Company or any Company Subsidiary retiree medical benefits or long-term disability payments or benefits (as applicable) at a level that is substantially comparable to the level of such payments or benefits Compensation provided to such individuals immediately Continuing Employee prior to the Closing Date.
(c) Parent shallDuring the plan year in which the Closing occurs, and with respect to any Continuing Employees or dependents of such employees (collectively the “Affected Participants”) commencing participation in any employee benefit plans, programs or policies (excluding any plans, programs or policies providing for defined benefit pension, equity or equity-based, nonqualified deferred compensation, or post-termination or retiree health or welfare benefits) maintained by Buyer (each, a “Buyer Plan”), Buyer shall or shall cause its Subsidiaries (including the Company Acquired Group Companies) to use commercially reasonable efforts to (i) waive any evidence of insurability and waiting periods with respect to participation by and coverage in connection with the Company Subsidiariesparticipation and coverage requirements in connection with the medical, dental and vision benefits that the Affected Participants may be eligible to receive pursuant to such Buyer Plan after the Closing; (ii) tohonor any deductible, co-payment and out-of-pocket maximums incurred by the Affected Participants under the health plans in which they participated immediately prior to the Closing Date during the portion of the calendar year prior to the Closing Date in satisfying any deductibles, co-payments or out-of-pocket maximums under Buyer Plans in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any preexisting condition limitations otherwise applicable to Affected Participants under any Buyer Plan that provides health benefits in which the Affected Participants may be eligible to participate following the Closing. Seller shall cooperate with Buyer in providing such information as is reasonably necessary for Buyer to effect the terms of this Section 5.12(c).
(d) Following the Closing Date, Buyer shall or shall cause any “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) maintained by Parent or any of its subsidiaries Subsidiaries (including the Company and the Company Subsidiaries) (including any vacation, paid time-off and severance plansAcquired Group Companies) to recognize cause each Company EmployeeContinuing Employee to receive credit for such employee’s service with the Company or Acquired Companies, the Acquired Group Companies and Seller and any of their respective predecessors (including, for the Company Subsidiaries avoidance of doubt, entities that were acquired by Seller, the Acquired Companies or the Acquired Group Companies) for purposes of eligibility, vesting and (as well as service with for vacation) benefit accruals, under any predecessor of the Company or Buyer Plans in which any Company Subsidiary, such Continuing Employee participates to the same extent service with such predecessor is and for the same purpose recognized by the Company Acquired Group Companies under the analogous Benefit Plans or such Company Subsidiary at Closing), for all purposes, including determining eligibility Group Benefit Plans immediately prior to participate, level of benefits, vesting, benefit accruals and early retirement subsidiesthe Closing Date; provided, however, that such sd-625790 service need shall not be recognized to the extent that such recognition would result in any a duplication of benefitsbenefits with respect to the same period of service.
(de) During Except for the calendar Benefit Plans set forth on Section 3.14(a) of the Seller Disclosure Schedules, Seller and its Affiliates (other than any Acquired Group Company) shall assume or retain the sponsorship of and be solely responsible for all liabilities relating to or at any time arising under or in connection with or pursuant to any Group Benefit Plan or any other benefit or compensation plan, program, policy, agreement or arrangement or any kind at any time maintained, sponsored, contributed to or required to be contributed to by Seller or any of its Affiliates (including the Acquired Group Companies) or otherwise under or with respect to which any such Person has any liability. As of the Closing Date, each Continuing Employee shall cease participation in the health and welfare benefit plans of Seller and its Affiliates that are not sponsored or maintained by Acquired Group Companies (each a “Seller Welfare Plan”) and shall commence or continue participation in the health and welfare plans maintained by Buyer and its Affiliates. Seller shall be responsible for providing benefits in respect of claims incurred under a Seller Welfare Plan for Continuing Employees and their beneficiaries and dependents on or prior to the Closing Date, regardless of when such claims are reported. Benefits in respect of all welfare plan claims incurred by Continuing Employees after the Closing Date shall be provided by Buyer and its Affiliates. For purposes of this Section 5.12(e), the following claims shall be deemed to be incurred as follows: (i) life, accidental death and dismemberment and business travel accident insurance benefits, upon the death or accident giving rise to such benefits and (ii) health or medical, dental, vision care or prescription drug benefits, upon provision of the applicable services, materials or supplies. Seller shall be solely responsible for complying with the requirements of Section 4980B of the Code with respect to any “M&A qualified beneficiary,” as that term is defined in Treasury Regulation Section 54.4980B-9, with respect to any Group Benefit Plan.
(f) Seller and Buyer hereby agree that any Continuing Employee who as of the Closing Date (i) is receiving or entitled to receive short-term disability benefits and who subsequently becomes eligible to receive long-term disability benefits under a Group Benefit Plan or (ii) is receiving or entitled to receive long-term disability benefits under any Group Benefit Plan, shall become eligible or continue to be eligible, as applicable, to receive long-term disability benefits under a Group Benefit Plan maintained by Seller or one of its Affiliates (other than any of the Acquired Group Companies) that is a long-term disability plan unless and until such employee is no longer disabled in accordance with the terms of such plan.
(g) As of the Closing Date, the account balances of the Continuing Employees under the medical and dependent care account plans of Seller or its Affiliates (each a “Seller FSA Plan”) shall be transferred to a flexible spending account plan qualified under Section 125 of the Code established or designated by Buyer, and such plan of Buyer (or its applicable Affiliate, including any Acquired Group Company) shall be responsible for reimbursing the Continuing Employees for claims submitted to such plan of Buyer following the Closing Date. Each Continuing Employee shall be permitted to continue to have payroll deductions made as most recently elected by such Continuing Employee under the Seller FSA Plan for the plan year in which the Closing Date occurs.
(h) Notwithstanding anything to the contrary set forth in this Agreement with respect to the 2020 fiscal year bonus plans in which the Continuing Employees participate (the “Bonus Plans”), Parent shall, and the Buyer shall (or shall cause its Subsidiaries Affiliates to) recognize and assume all liabilities with respect to such plans pursuant to the applicable terms and conditions of such Bonus Plans.
(including i) Buyer shall (or shall cause its Affiliates to) recognize and assume the Company liability with respect to accrued but unused vacation time and sick leave for all Continuing Employees as accrued in respect of the Company Subsidiaries) toperiod prior to the Closing Date in accordance with the Acquired Companies’ policies in effect on the date of this Agreement to the extent reflected in Net Working Capital; provided that in any jurisdiction in which the payment of the value of accrued but unused vacation time is required by applicable Law as of the Closing Date, waivethe Seller will pay, or cause to be waivedpaid, any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by Parent or any of its Subsidiaries in which Company all accrued but unused vacation time to such Continuing Employees (and their eligible dependents) will be eligible to participate from and after the Closing Date, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable benefit plan of the Company immediately prior to the Closing Date. Parent shall, or shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, recognize, or cause to be recognized, the dollar amount of all co-payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) during the calendar year in which the Closing Date occurs for purposes of satisfying such year’s deductible and co-payment limitations under the relevant welfare benefit plans in which such Company Employee (and his or her eligible dependents ) will be eligible to participate from and as soon as reasonably practicable after the Closing Date.
(ej) From and after At least one Business Day prior to the Closing Date, Parent shall, and the Seller shall cause the applicable Acquired Group Company to cease contributions to and adopt written resolutions to terminate the Virtual Radiologic Corporation 401(k) Profit Sharing Plan (the “vRad 401(k) Plan”) and to one hundred percent (100%) vest all participants under the vRad 401(k) Plan, such termination and vesting to be effective no later than the Business Day preceding the Closing Date. With respect to each Continuing Employee who, as of immediately prior to the Closing Date, participates in a defined contribution plan that is intended to qualify under Section 401(a) of the Code and that is sponsored by the Seller or its Subsidiaries Affiliates (a “Seller DC Plan”), Buyer shall (or shall cause one of its Affiliates to), as soon as practicable following the Closing Date, (i) cover such Continuing Employee under a defined contribution plan that is intended to qualify under Section 401(a) of the Code and that is sponsored by Buyer or one of its Affiliates (a “Buyer DC Plan”) and (ii) cause a Buyer DC Plan to accept participant rollovers in cash (as opposed to in-kind) of the full value of the accounts (including participant loans), if so elected by any Continuing Employee.
(k) Following the Company Closing, Seller will retain all liabilities for any and all claims incurred prior to the Company SubsidiariesClosing for workers compensation benefits in respect of matters that are covered by Seller’s retained insurance policies and Seller shall have the sole discretion and authority to defend and direct the defense of any and all such claims.
(l) to, provide any required notice under WARN, and any similar state or local law, and otherwise comply with such laws The parties will reasonably cooperate with respect to any communications to Acquired Group Company Employees regarding the Company Employees. Notwithstanding transactions contemplated by this Agreement.
(m) The parties hereto acknowledge and agree that all provisions contained in this Section 5.12 are included for the foregoing, no provision sole benefit of this Agreement the respective parties hereto and shall not create any right (i) in any employee other person, including any employees, former employees, any participant in any Benefit Plan or Buyer Plan or any beneficiary thereof or (ii) to continued employment by (or any particular term of employment) with the CompanySeller, ParentAcquired Group Companies or Buyer, or particular benefits or coverage in any respective Subsidiary Benefit Plan or Affiliate thereof, Buyer Plan. The provisions of this Section 5.12 shall not constitute the establishment of or preclude an amendment to any Benefit Plan or Buyer Plan. Nothing in this Section 5.12 is intended to or shall be construed to prohibit or otherwise limit the ability of Buyer or its Affiliates (including, following the CompanyClosing Date, Parentthe Acquired Group Companies) to (x) establish, adopt, modify, amend or terminate any respective Subsidiary benefit or Affiliate thereof to terminate the employment of any employee for any reason, except as set forth in Section 5.9(a). This Section 5.9 shall be binding upon and shall inure solely to the benefit of the parties hereto (it being understood that other than the Shareholders’ Representative, no Company shareholder, including any shareholder that is also a Company Employee, is a party to this Agreement), and nothing in this Section 5.9, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Section 5.9 or is intended to be, shall constitute or be construed as an amendment to or modification of any employee benefit compensation plan, program, arrangement policy, agreement or policy of the Company, Parentarrangement, or (y) modify or terminate the employment or engagement of any respective Subsidiary or Affiliate thereof. No Company Employee (including Person at any beneficiary or dependent thereof) shall be regarded time for any purpose as a third-party beneficiary of this Agreement pursuant to or no reason. Notwithstanding any other provision in this Section 5.9 and 5.12, Buyer’s obligations under this Section 5.9 5.12 shall not create such rights limit Buyer’s right, in its sole discretion, to furlough, temporarily layoff, terminate the employment of, or reduce the hours or benefits of, any such personemployee because of, in whole or in part, COVID-19 related circumstances.
(f) Parent shall, for at least the first two years following the Closing, maintain the Company’s existing corporate offices in Juneau, Alaska and maintain the artifacts and property contained therein, continue the charitable contribution practices of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790
Appears in 1 contract
Employment and Benefits Arrangements. With respect to any (a) Each Acquired Group Company Employee who is subject to a collective bargaining agreement, this Section 5.9 only shall apply to those employment terms, compensation and employee benefits employed as of immediately prior to the extent they are (i) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargainingClosing, but are intended to be equivalent to the employment termsincluding, compensation and employee benefits of Company Employees who are not subject to a collective bargaining agreement; provided that, in all events, the employment terms, compensation and employee benefits set forth in the applicable collective bargaining agreement (as in effect from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For for the avoidance of doubt, nothing in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement following the Closing Date.
Transferring Employees (aas defined below) For a period of two years following the Closing Date (the “Continuation PeriodContinuing Employees”), Parent ) shall provide, or cause its Subsidiaries (including continue employment with the applicable Acquired Group Company and immediately following the Company Subsidiaries) to provide (A) compensation (including any annual incentive compensation opportunities and bonuses) to the Company Employees that, in the aggregate, is no less favorable than the compensation provided to the Company Employees immediately prior to the Closing Date and (B) benefits (including pension and retiree medical benefits) to the Company Employees that, in the aggregate, are no less favorable than the benefits provided to the Company Employees immediately prior to the Closing Date. The foregoing shall not prohibit Parent from causing the Company and the Company Subsidiaries to adopt employment or other policies substantially similar to those applicable to employees of Parent and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion)Closing.
(b) During Except as specifically set forth in the Continuation PeriodTransition Services Agreement, Seller, Seller Parent, and their Subsidiaries and Affiliates other than the Acquired Group Companies shall assume, retain, and shall be solely responsible for, and shall indemnify and hold harmless Buyer and its Affiliates against, any and all Liabilities and obligations relating to or at any time arising under or in connection with any Group Benefit Plan and any other compensation or benefit plan, program, agreement, policy or arrangement of any kind at any time maintained, sponsored or contributed to or required to be contributed to by Seller, Seller Parent shall provide or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide each former employee of the Company or any Company Subsidiary who, immediately prior to of their Subsidiaries or Affiliates (other than the Closing Date, is receiving long-term disability payments or benefits (which shall be deemed to include medical benefitsAcquired Group Companies) or retiree medical benefits from the Company under or with respect to which Seller, Seller Parent, or any Company Subsidiary retiree medical benefits of their Subsidiaries or long-term disability payments or benefits Affiliates (as applicableother than the Acquired Group Companies) at a level that is substantially comparable to the level of such payments or benefits provided to such individuals immediately prior to the Closing Datehas any Liability.
(c) Parent shallExcept as specifically set forth in this Section 5.5 or as specifically set forth in the Transition Services Agreement, Seller, Seller Parent, and shall cause its their Subsidiaries (including and Affiliates other than the Company Acquired Group Companies will retain all Liabilities for any and the Company Subsidiaries) to, cause any “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) maintained by Parent or any of its subsidiaries (including the Company and the Company Subsidiaries) (including any vacation, paid time-off and severance plans) to recognize each Company Employee’s service with the Company or any of the Company Subsidiaries (as well as service with any predecessor of the Company or any Company Subsidiary, all claims relating to the extent service with such predecessor is recognized by Continuing Employees that arise out of actions taken or events occurring prior to the Company or such Company Subsidiary at Closing), for all purposes, including determining eligibility for workers compensation benefits in respect of matters that are covered by Seller’s retained insurance policies, and Seller shall have the sole discretion and authority to participate, level defend and direct the defense of benefits, vesting, benefit accruals any and early retirement subsidies; provided, however, that all such sd-625790 service need not be recognized to the extent that such recognition would result in any duplication of benefitsclaims.
(d) During As of the calendar year in which Closing, Seller shall have caused each individual listed on Section 5.5(d)(i) of the Closing Date occurs, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, waive, or cause Seller Disclosure Schedules to be waivedemployed by an Acquired Group Company either through the transfer of such individuals employment or through other means (the “Transferring Employees”). On or before the date hereof, any pre-existing condition limitationsSeller shall also issue a notice of assignment assigning the employment agreement for each individual listed on Section 5.5(d)(ii) of the Seller Disclosure Schedules to an Acquired Group Company (with the effective date of such assignment being the date on which such notice is effective pursuant to the terms of the Transferring Employee’s employment agreement); provided that, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by Parent or any of its Subsidiaries in which Company Employees (and their eligible dependents) will be eligible to participate from and after the Closing Date, except to the extent any such Transferring Employee asserts a claim for breach of an employment agreement assigned pursuant to this Section 5.5(d) that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied arises out of actions taken or waived under the comparable benefit plan of the Company immediately events occurring prior to the Closing Date. Parent shalldate hereof, or shall cause its Subsidiaries (including the Company Seller agrees to defend, indemnify, and hold Buyer and the applicable Acquired Group Company Subsidiariesto which such employment agreement was assigned harmless against any such claim for breach. To the extent that any Transferring Employee is party to an employment agreement or an employment agreement amendment with Seller or any Acquired Group Company that includes severance obligations and, within ninety (90) to, recognize, or cause to be recognizeddays following the date hereof, the dollar amount of all co-paymentsAcquired Group Company terminates such Transferring Employee’s employment in a way that triggers such severance obligation, deductibles and similar expenses incurred by each such Acquired Group Company Employee shall make any severance payments required (and his or her eligible dependents) during shall obtain a separation agreement and general release from such Transferring Employee to the calendar year in which the Closing Date occurs for purposes of satisfying extent such year’s deductible and co-payment limitations Transferring Employee is required under the relevant welfare benefit plans applicable employment agreement to sign such a separation agreement and general release in which connection with and prior to any such Company Employee (severance payment) and his or her eligible dependents ) will be eligible provide proof thereof to participate from and after the Closing DateSeller [***]. [***].
(e) From and after the Closing Date, Parent shall, and Buyer shall cause its Subsidiaries the Acquired Group Companies to continue to recognize the accrued but unused vacation time and sick leave for all Acquired Group Company Employees as accrued in respect of the period prior to the date hereof solely to the extent reflected in Net Working Capital.
(including the Company and the Company Subsidiariesf) to, provide any required notice under WARN, and any similar state or local law, and otherwise comply with such laws The parties will reasonably cooperate with respect to any communications to Acquired Group Company Employees regarding the Company Employees. Notwithstanding the foregoing, no provision transactions contemplated by this Agreement.
(g) Nothing contained in this Section 5.5 (whether express or implied) is intended to (i) confer upon any Continuing Employee or any other employee of this Agreement shall create Seller or any of its Affiliates or any other Person any right in any employee to employment or engagement, continued employment by the Companyor engagement for any period, Parentreceipt of any specific benefit or compensation, or any respective Subsidiary particular term or Affiliate thereofcondition of employment or engagement, (ii) be treated as the establishment, modification, termination, or preclude the ability amendment of the Companyany particular Group Benefit Plan, ParentBenefit Plan, or any other benefit or compensation plan, program, policy, agreement, arrangement, or contract, (iii) prevent Buyer or Seller or any of their respective Subsidiary Subsidiaries or Affiliate thereof to terminate Affiliates from amending, modifying, or terminating any Group Benefit Plan, Benefit Plan, or any benefit or compensation plan, program, policy, agreement, arrangement, or contract at any time assumed, established, sponsored or maintained by any of them, (iv) prevent Seller or Buyer or any of their respective Subsidiaries or Affiliates from terminating the employment of any employee Continuing Employee or any other Person at any time and for any or no reason, except as set forth in Section 5.9(a). This Section 5.9 shall be binding upon and shall inure solely to the benefit of the parties hereto or (it being understood that other than the Shareholders’ Representative, no Company shareholder, including any shareholder that is also a Company Employee, is a party to this Agreement), and nothing in this Section 5.9, express or implied, is intended to confer upon any other person v) create any rights or remedies of any nature whatsoever under or by reason of this Section 5.9 or is intended to benature, shall constitute or be construed as an amendment to or modification of including third-party beneficiary rights, in any employee benefit planContinuing Employee, program, arrangement or policy of the Company, Parent, or any respective Subsidiary or Affiliate thereof. No Company Employee (including any beneficiary or dependent thereof) shall be regarded for , or any purpose as a third-party beneficiary of this Agreement pursuant to this Section 5.9 and this Section 5.9 shall not create such rights in any such person.
(f) Parent shall, for at least the first two years following the Closing, maintain the Company’s existing corporate offices in Juneau, Alaska and maintain the artifacts and property contained therein, continue the charitable contribution practices of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790representative thereof, or any Person other than the Parties.
Appears in 1 contract
Employment and Benefits Arrangements. With respect to any Company Employee who is subject to a collective bargaining agreement, this Section 5.9 only shall apply to those employment terms, compensation and employee benefits to the extent they are (i) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargaining, but are intended to be equivalent to the employment terms, compensation and employee benefits of Company Employees who are not subject to a collective bargaining agreement; provided that, in all events, the employment terms, compensation and employee benefits set forth in the applicable collective bargaining agreement (as in effect from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For the avoidance of doubt, nothing in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement following the Closing Date.
(a) For a period Each Acquired Company Employee employed as of two years following the Closing Date (the “Continuation Period”), Parent shall provide, or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide (A) compensation (including any annual incentive compensation opportunities and bonuses) to the Company Employees that, in the aggregate, is no less favorable than the compensation provided to the Company Employees immediately prior to the Closing Date and (Bthe “Continuing Employees”) benefits (shall continue employment with the Company immediately following the Closing. Continuing Employees shall include Acquired Company Employees who are on an approved leave of absence under any of the Company’s leave policies for any reason including pension and retiree medical benefits) disability. Prior to the Closing, Seller shall cause each of the Acquired Company Employees, which list of Acquired Company Employees thatmay be amended prior to Closing as mutually agreed upon by Seller and Buyer, in the aggregate, are no less favorable other than the benefits provided to the Company Employees immediately those individuals who resign or whose employment may be terminated by Seller prior to the Closing Date. The foregoing shall not prohibit Parent from causing in a manner compliant with Section 5.1, to be employed by the Company and either through the Company Subsidiaries to adopt transfer of such individuals’ employment or through other policies substantially similar to those applicable to employees of Parent and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion)means.
(b) During the Continuation Period, Parent shall provide or cause its Subsidiaries (including period commencing on the Company Closing Date and ending on the Company Subsidiaries) to provide each former employee first anniversary of the Company or any Company Subsidiary who, immediately prior to the Closing Date, is receiving long-term disability payments or benefits (which shall be deemed to include medical benefits) or retiree medical benefits from such shorter period as a Continuing Employee continues employment with Buyer, the Company or any Company Subsidiary retiree medical benefits or long-term disability payments or benefits (as applicable) at a level that is substantially comparable to the level of such payments or benefits provided to such individuals immediately prior to their Affiliates following the Closing Date.
Date (c) Parent shallsuch period, and the “Protected Period”), the Buyer shall or shall cause its Subsidiaries (including the Company Company) (the “Employing Affiliate”) to provide each Continuing Employee with an annual base salary, target bonus opportunity, and employee benefits that, in each case, are at least substantially similar in the aggregate to the annual base salary, target bonus opportunity and employee benefits, respectively, provided to similarly situated employees of the Employing Affiliate. If any Continuing Employee is on a leave of absence due to disability, Buyer shall or shall cause its Employing Affiliate to use commercially reasonable efforts to provide a substantially similar level of disability benefits as provided by the Company Subsidiariesas of immediately before the Closing for the period of the disability. Notwithstanding the foregoing, nothing contained herein, express or implied, (y) toshall be construed to alter or limit the ability of the Employing Affiliate in its sole and absolute discretion, to terminate the employment relationship of any Continuing Employee at any time and for any reason, including without cause (subject to the terms of any applicable employment Contract) or (z) is intended to confer upon any current or former employee any right to employment or continued employment for any period of time by reason of this Agreement.
(c) Following the Closing, with respect to any Continuing Employees or dependents of such employees (collectively the “Affected Participants”) commencing participation in any employee benefit plan” (as defined in Section 3(3) of ERISAplans, whether programs or not subject to ERISA) policies maintained by Parent the Employing Affiliate (each, a “Buyer Plan”), Buyer shall cause its Employing Affiliate to use commercially reasonable efforts to (i) waive any evidence of insurability and waiting periods with respect to participation by and coverage in connection with the participation and coverage requirements in connection with the medical, dental and vision benefits that the Affected Participants may be eligible to receive pursuant to such Buyer Plan after the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by the Affected Participants under the health plans in which they participated immediately prior to the Closing Date during the portion of the calendar year prior to the Closing Date in satisfying any deductibles, co-payments or out-of-pocket maximums under Buyer Plans in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred; and (iii) waive any preexisting condition limitations otherwise applicable to Affected Participants under any Buyer Plan that provides health benefits in which the Affected Participants may be eligible to participate following the Closing. Seller shall cooperate with Buyer in providing such information as is reasonably necessary for Buyer to effect the terms of its subsidiaries this Section 5.12(c).
(including d) Following the Company and the Company Subsidiaries) (including any vacationClosing Date, paid time-off and severance plans) Buyer shall cause each Continuing Employee to recognize each Company Employeereceive full credit for such employee’s service with the Company or and Seller and any of their respective predecessors (including, for the Company Subsidiaries (as well as service with avoidance of doubt, entities that were acquired by Seller or the Company) for purposes of eligibility, vesting and benefit accruals, under any predecessor of the Company or Buyer Plans in which any Company Subsidiary, such Continuing Employee participates to the same extent service with such predecessor is recognized by the Company or such Company Subsidiary at Closing), for all purposes, including determining eligibility and/or Benefit Plans and/or Group Benefit Plans immediately prior to participate, level of benefits, vesting, benefit accruals and early retirement subsidiesthe Closing Date; provided, however, that such sd-625790 service need shall not be recognized to the extent that such recognition would result in any a duplication of benefitsbenefits with respect to the same period of service.
(de) During As of the calendar Closing Date, each Continuing Employee shall cease participation in the health and welfare benefit plans of Seller and its Affiliates that are not sponsored or maintained by the Company (each a “Seller Welfare Plan”) and shall commence or continue participation in the health and welfare plans maintained by the Employing Affiliate. Seller shall be responsible for providing benefits in respect of claims incurred under a Seller Welfare Plan for Continuing Employees and their beneficiaries and dependents prior to the Closing Date. Benefits in respect of all welfare plan claims incurred by Continuing Employees on or after the Closing Date shall be provided by Buyer or one of its Affiliates. For purposes of this Section 5.12(e), the following claims shall be deemed to be incurred as follows: (i) life, accidental death and dismemberment and business travel accident insurance benefits, upon the death or accident giving rise to such benefits and (ii) health or medical, dental, vision care and/or prescription drug benefits, upon provision of the applicable services, materials or supplies.
(f) As of the Closing Date, the account balances of the Continuing Employees under the dependent care account plan of Seller or its Affiliates (each a “Seller FSA Plan”) shall be transferred to a flexible spending account plan qualified under Section 125 of the Code established or designated by the Employing Affiliate, and the Employing Affiliate shall be responsible for the obligations of the Seller FSA Plan to provide benefits to the Continuing Employees with respect to such transferred account balances on and after the Closing Date. Each Continuing Employee shall be permitted to continue to have payroll deductions made as most recently elected by such Continuing Employee under the Seller FSA Plan for the plan year in which the Closing Date occurs. In the event that the aggregate amount withheld from the Continuing Employees’ compensation with respect to the Seller FSA Plan is less than the amount reimbursed to the Continuing Employees, Parent shallBuyer shall remit to the Seller the amount of the unfunded reimbursements.
(g) Notwithstanding anything to the contrary set forth in this Agreement with respect to the bonus plans in which the Continuing Employees participate (the “Bonus Plans”), (i) the Seller shall retain any accrued, but unpaid, liabilities with respect to such plans pursuant to the applicable terms and conditions of such Bonus Plans for all periods of time commencing prior to and ending on the Closing Date (except for amounts actually included in the calculation of Final Transaction Expenses for such liabilities and also except for accrued, but unpaid commissions assigned by Seller or an Affiliate of Seller to Buyer pursuant to the Contribution and Assignment Agreement and actually included in the calculation of Final Net Working Capital) (the “Pre-Closing Bonus Amounts”) and (ii) the Buyer shall (or shall cause its Subsidiaries Affiliates to) assume all liabilities with respect to such plans pursuant to the applicable terms and conditions of such Bonus Plans for all periods of time commencing (including A) prior to and ending on the Company Closing Date to the extent of such amounts actually included in the calculation of Final Transaction Expenses for such liabilities and the Company Subsidiaries(B) to, waive, or cause to be waived, any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by Parent or any of its Subsidiaries in which Company Employees (and their eligible dependents) will be eligible to participate from and after the Closing DateDate and thereafter. On or as promptly as practicable following the Closing Date (but, except in any event, within five (5) Business Days), Seller shall pay the Pre-Closing Bonus Amounts to each of the respective Persons entitled to receive such Pre-Closing Bonus Amount in full satisfaction of its obligations set forth above. Notwithstanding any provision to the extent that such pre-existing condition limitationscontrary herein, exclusions, actively-at-work requirements and waiting periods would Buyer shall not have been satisfied or waived under the comparable benefit plan be required to continue any of the Company Bonus Plans after the Closing.
(h) With respect to each Continuing Employee who, as of immediately prior to the Closing Date. Parent shall, participates in a defined contribution plan that is intended to qualify under Section 401(a) of the Code and that is sponsored by the Seller or its Affiliates (a “Seller DC Plan”), Buyer shall cause its Subsidiaries the Employing Affiliate, effective as of the Closing Date, to (i) cover such Continuing Employee under a defined contribution plan that is intended to qualify under Section 401(a) of the Code and that is sponsored by the Employing Affiliate (a “Buyer DC Plan”), (ii) provide in the Buyer DC Plan the same level of fully vested matching contribution as in the Seller DC Plan, and (iii) cause a Buyer DC Plan to accept participant rollovers of the full value of the accounts (including participant loans), if so elected by any Continuing Employee. Buyer shall cause the Company Buyer DC Plan to permit and accept the Company Subsidiaries) to, recognize, or cause to be recognized, the dollar amount rollover of all co-payments, deductibles cash and similar expenses incurred participant loan notes by each Company Continuing Employee (and his or her eligible dependents) during from the calendar year in which Seller DC Plan to the Closing Date occurs for purposes Buyer DC Plan. For the avoidance of satisfying such year’s deductible and co-payment limitations under doubt, after the relevant welfare benefit plans in which such Company Employee (and his or her eligible dependents ) Closing, Continuing Employees will no longer be eligible to participate from in the Seller DC Plan, and after Seller will retain all Liabilities related to the Closing DateSeller DC Plan.
(ei) From Following the Closing, Seller will retain all liabilities for any and all claims incurred prior to the Closing for workers compensation benefits in respect of matters that are covered by Seller’s retained insurance policies and Seller shall have the sole discretion and authority to defend and direct the defense of any and all such claims.
(j) Buyer will be responsible for discharging all obligations in respect of the Continuing Employees under the WARN Act and similar applicable state or local Laws for the notification of any “employment loss” within the meaning of the WARN Act and similar applicable state or local Laws which occurs after the Closing DateClosing. Seller shall be responsible for complying with the WARN Act and similar applicable state or local Laws for the notification of any “employment loss” within the meaning of the WARN Act and similar state or local Laws with respect to any employees of the Company experiencing an employment loss within the meaning of the WARN Act occurring on or before the Closing; provided, Parent shallhowever, that for at least ninety (90) days following the Closing, Buyer will not, and shall it will cause its Subsidiaries Affiliates (including including, after the Closing, the Company) not to, conduct any mass layoffs, plant closings, relocations, or other reductions in force following the Closing that would, either alone or when aggregated with any actions taken by the Seller or the Company and prior to the Closing, result in any liability to Seller or the Company Subsidiaries) to, provide any required notice under WARN, and the WARN Act or any similar state or local law, Laws.
(k) Seller will be solely responsible for offering and otherwise comply with such laws providing COBRA continuation coverage required with respect to all individuals who experience a qualifying event on or before the Closing. Buyer or one of its Affiliates will be solely responsible for offering and providing any COBRA continuation coverage required with respect to any Continuing Employee who experiences a qualifying event after the Closing. “Qualifying event” and “continuation coverage” are as defined in Section 4980B of the Code and the regulations promulgated thereunder.
(l) The parties will reasonably cooperate with respect to any communications to Acquired Company Employees. Notwithstanding Employees regarding the foregoing, no provision transactions contemplated by this Agreement.
(m) The parties hereto acknowledge and agree that all provisions contained in this Section 5.12 are included for the sole benefit of this Agreement the respective parties hereto and shall not create any right (i) in any employee other person, including any employees, former employees, any participant in any Benefit Plan or Buyer Plan or any beneficiary thereof or (ii) to continued employment by with the CompanySeller, Parentthe Company or Buyer or any Affiliate, or particular benefits or coverage in any respective Subsidiary Benefit Plan or Affiliate thereof, or preclude the ability of the Company, Parent, or any respective Subsidiary or Affiliate thereof to terminate the employment of any employee for any reason, except as set forth in Section 5.9(a)Buyer Plan. This Section 5.9 shall be binding upon and shall inure solely to the benefit of the parties hereto (it being understood that other than the Shareholders’ Representative, no Company shareholder, including any shareholder that is also a Company Employee, is a party to this Agreement), and nothing in this Section 5.9, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason The provisions of this Section 5.9 or is intended to be, 5.12 shall not constitute or be construed as an amendment to any Benefit Plan or modification of any employee benefit plan, program, arrangement or policy of the Company, Parent, or any respective Subsidiary or Affiliate thereof. No Company Employee (including any beneficiary or dependent thereof) Buyer Plan and no Person shall be regarded for any purpose as considered a third-third party beneficiary of this Agreement pursuant to the provisions of this Section 5.9 and this Section 5.9 shall not create such rights in any such person5.12.
(f) Parent shall, for at least the first two years following the Closing, maintain the Company’s existing corporate offices in Juneau, Alaska and maintain the artifacts and property contained therein, continue the charitable contribution practices of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790
Appears in 1 contract
Employment and Benefits Arrangements. With respect to any Company Employee who is subject to a collective bargaining agreement, this Section 5.9 only shall apply to those employment terms, compensation and employee benefits to the extent they are (i) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargaining, but are intended to be equivalent to the employment terms, compensation and employee benefits of Company Employees who are not subject to a collective bargaining agreement; provided that, in all events, the employment terms, compensation and employee benefits set forth in the applicable collective bargaining agreement (as in effect from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For the avoidance of doubt, nothing in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement following the Closing Date.
(a) For a period of two years following As promptly as reasonably practicable after the Closing Date Effective Time, the Buyer shall enroll the Continuing Employees in the Buyer’s employee benefit plans (including any severance plans) for which such employees are eligible (the “Continuation PeriodBuyer Plans”), Parent shall provide, or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide (A) compensation (including any annual incentive compensation opportunities and bonuses) to the Company Employees providing for benefits that, in the aggregateBuyer’s discretion, is no less favorable than the compensation provided to the Company Employees immediately prior to the Closing Date and (B) benefits (including pension and retiree medical benefits) to the Company Employees that, are substantially similar in the aggregate, are no less favorable than aggregate to the benefits provided by the Buyer to its employees (excluding the Continuing Employees) who are generally similarly situated to such Continuing Employees, and the Buyer shall, to the Company Employees immediately extent permissible under such Buyer Plan, recognize the prior to the Closing Date. The foregoing shall not prohibit Parent from causing the Company and the Company Subsidiaries to adopt employment or other policies substantially similar to those applicable to employees of Parent and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion).
(b) During the Continuation Period, Parent shall provide or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide each former employee of the Company or any Company Subsidiary who, immediately prior to the Closing Date, is receiving long-term disability payments or benefits (which shall be deemed to include medical benefits) or retiree medical benefits from the Company or any Company Subsidiary retiree medical benefits or long-term disability payments or benefits (as applicable) at a level that is substantially comparable to the level of such payments or benefits provided to such individuals immediately prior to the Closing Date.
(c) Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, cause any “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) maintained by Parent or any of its subsidiaries (including the Company and the Company Subsidiaries) (including any vacation, paid time-off and severance plans) to recognize each Company Employee’s service with the Company or any of each of the Company Subsidiaries Continuing Employees for purposes of eligibility to participate and vesting (as well as service with any predecessor of but not benefit accruals) under the Company or any Company SubsidiaryBuyer Plans. Each applicable Buyer Plan shall waive, to the extent service with such predecessor is recognized permitted by the Company or such Company Subsidiary at Closing), for all purposes, including determining eligibility to participate, level of benefits, vesting, benefit accruals and early retirement subsidies; provided, however, that such sd-625790 service need not be recognized to the extent that such recognition would result in any duplication of benefits.
(d) During the calendar year in which the Closing Date occurs, Parent shall, and shall cause its Subsidiaries (including the Company applicable Law and the Company Subsidiaries) torelevant insurance carriers, waiveeligibility waiting periods, or cause to be waived, any evidence of insurability requirements and pre-existing condition limitations, exclusions, actively-at-work requirements . To the extent permitted by applicable Law and waiting periods under any welfare benefit plan maintained by Parent or any of its Subsidiaries in which Company Employees (the relevant insurance carriers and their eligible dependents) will be eligible to participate from and after the Closing Date, except to the extent applicable in the plan year that such pre-existing condition limitationscontains the Closing Date and subject to the reasonable cooperation of the applicable Continuing Employee, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived the Continuing Employees shall be given credit under the comparable benefit plan of the Company immediately prior to the Closing Date. Parent shall, or shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, recognize, or cause to be recognized, the dollar amount of all co-payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) applicable Buyer Plan for amounts paid during the calendar year in which the Closing Date occurs under a corresponding benefit plan of the Company for purposes of satisfying such year’s deductible and applying deductibles, co-payment limitations under payments and out of pocket maximums, as though such amounts had been paid in accordance with the relevant welfare benefit plans in which such Company Employee (terms and his or her eligible dependents ) will be eligible to participate from and after conditions of the Closing DateBuyer Plan.
(eb) From and after the Closing Date, Parent shallThis Section 5.6 (i) is not intended, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) tonot be deemed, provide to confer any required notice under WARNrights or remedies upon any Continuing Employee in their capacity as such, and any similar state or local law, and otherwise comply with such laws with respect to the Company Employees. Notwithstanding the foregoing, no provision of this Agreement shall create any right in agreement of employment with any employee Person or to continued employment by the Company, Parent, or otherwise create any respective Subsidiary or Affiliate thereof, or preclude the ability of the Company, Parent, or any respective Subsidiary or Affiliate thereof third-party beneficiary hereto and (ii) shall not be construed to terminate mean the employment of any employee for any reason, except as set forth in Section 5.9(a). This Section 5.9 shall be binding upon and shall inure solely to the benefit of the parties hereto (it being understood that Continuing Employee is other than “at will” and not terminable by the Shareholders’ Representative, no Company shareholder, including Buyer at any shareholder that is also a Company Employee, is a party to this Agreement), and nothing in this Section 5.9, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Section 5.9 or is intended to be, shall constitute or be construed as an amendment to or modification of any employee benefit plan, program, arrangement or policy of the Company, Parent, or any respective Subsidiary or Affiliate thereof. No Company Employee (including any beneficiary or dependent thereof) shall be regarded for any purpose as a third-party beneficiary of this Agreement pursuant to this Section 5.9 and this Section 5.9 shall not create such rights in any such persontime.
(f) Parent shall, for at least the first two years following the Closing, maintain the Company’s existing corporate offices in Juneau, Alaska and maintain the artifacts and property contained therein, continue the charitable contribution practices of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790
Appears in 1 contract
Samples: Exhibit Agreement (PTC Inc.)
Employment and Benefits Arrangements. With respect to any Company Employee who is subject to a collective bargaining agreement, this Section 5.9 only shall apply to those employment terms, compensation and employee benefits to the extent they are (i) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargaining, but are intended to be equivalent to the employment terms, compensation and employee benefits of Company Employees who are not subject to a collective bargaining agreement; provided that, in all events, the employment terms, compensation and employee benefits set forth in the applicable collective bargaining agreement (as in effect from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For the avoidance of doubt, nothing in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement following the Closing Date.
(a) For a period of two years following the Closing Date (the “Continuation Period”), Parent shall provide, or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide (A) compensation (including any annual incentive compensation opportunities and bonuses) to the Company Employees that, in the aggregate, is no less favorable than the compensation provided to the Company Employees immediately prior to the Closing Date and (B) benefits (including pension and retiree medical benefits) to the Company Employees that, in the aggregate, are no less favorable than the benefits provided to the Company Employees immediately prior to the Closing Date. The foregoing shall not prohibit Parent from causing the Company and the Company Subsidiaries to adopt employment or other policies substantially similar to those applicable to employees of Parent and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion).
(b) During the Continuation Period, Parent shall provide or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide each former employee of the Company or any Company Subsidiary who, immediately prior to the Closing Date, is receiving long-term disability payments or benefits (which shall be deemed to include medical benefits) or retiree medical benefits from the Company or any Company Subsidiary retiree medical benefits or long-term disability payments or benefits (as applicable) at a level that is substantially comparable to the level of such payments or benefits provided to such individuals immediately prior to the Closing Date.
(c) Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, cause any “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) maintained by Parent or any of its subsidiaries (including the Company and the Company Subsidiaries) (including any vacation, paid time-off and severance plans) to recognize each Company Employee’s service with the Company or any of the Company Subsidiaries (as well as service with any predecessor of the Company or any Company Subsidiary, to the extent service with such predecessor is recognized by the Company or such Company Subsidiary at Closing), for all purposes, including determining eligibility to participate, level of benefits, vesting, benefit accruals and early retirement subsidies; provided, however, that such sd-625790 service need not be recognized to the extent that such recognition would result in any duplication of benefits.
(d) During the calendar year in which the Closing Date occurs, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, waive, or cause to be waived, any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by Parent or any of its Subsidiaries in which Company Employees (and their eligible dependents) will be eligible to participate from and after the Closing Date, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable benefit plan of the Company immediately prior to the Closing Date. Parent shall, or shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, recognize, or cause to be recognized, the dollar amount of all co-co- payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) during the calendar year in which the Closing Date occurs for purposes of satisfying such year’s deductible and co-payment limitations under the relevant welfare benefit plans in which such Company Employee (and his or her eligible dependents ) will be eligible to participate from and after the Closing Date.
(e) From and after the Closing Date, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, provide any required notice under WARN, and any similar state or local law, and otherwise comply with such laws with respect to the Company Employees. Notwithstanding the foregoing, no provision of this Agreement shall create any right in any employee to continued employment by the Company, Parent, or any respective Subsidiary or Affiliate thereof, or preclude the ability of the Company, Parent, or any respective Subsidiary or Affiliate thereof to terminate the employment of any employee for any reason, except as set forth in Section 5.9(a). This Section 5.9 shall be binding upon and shall inure solely to the benefit of the parties hereto (it being understood that other than the Shareholders’ Representative, no Company shareholder, including any shareholder that is also a Company Employee, is a party to this Agreement), and nothing in this Section 5.9, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Section 5.9 or is intended to be, shall constitute or be construed as an amendment to or modification of any employee benefit plan, program, arrangement or policy of the Company, Parent, or any respective Subsidiary or Affiliate thereof. No Company Employee (including any beneficiary or dependent thereof) shall be regarded for any purpose as a third-party beneficiary of this Agreement pursuant to this Section 5.9 and this Section 5.9 shall not create such rights in any such person.
(f) Parent shall, for at least the first two years following the Closing, maintain the Company’s existing corporate offices in Juneau, Alaska and maintain the artifacts and property contained therein, continue the charitable contribution practices of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790.
Appears in 1 contract
Samples: Merger Agreement
Employment and Benefits Arrangements. With respect (a) During the Pre-Closing Period, in connection with the Pre-Closing Transactions, each Seller may (i) transfer the employment of the current Business Employees that are employed in the positions set forth on Section 5.14(a)(i) of the Sellers’ Disclosure Schedules from any Company to any Seller or any of its Affiliates and/or (ii) transfer the employment of the current Business Employees that are employed in the positions set forth on Section 5.14(a)(ii) of the Sellers’ Disclosure Schedules from any Seller, or any of its Affiliates, to any Company; provided, however, that without limiting the generality of Section 5.1 and except as set forth in Section 5.14(a)(iii) of the Sellers’ Disclosure Schedules, the salaries, benefits and seniority of the Business Employees transferred to the Companies shall not be increased or decreased in connection with the Pre-Closing Transfers other than for any decrease in benefits for a Business Employee if the employment relationship with such Business Employee is terminated prior to such decrease at Sellers’ expense and in accordance with applicable Law and (iii) transfer the employment of the current Business Employees as provided on Section 1.1(b)(7)(c) of the Sellers’ Disclosure Schedules. Notwithstanding anything to the contrary, Sellers shall abstain (and prior to the Closing, shall cause the Companies to abstain) from transferring the employment of any current Business Employee to any operational Company that does not have employees (other than the General Manager). Furthermore, during the Pre-Closing Period, in connection with the Pre-Closing Transactions, each Seller may transfer sponsorship of any Benefit Plan set forth on Section 5.14(a)(iv) of the Sellers’ Disclosure Schedules to any Company Employee who is subject or cause any Company to adopt new Benefit Plans to replace existing Benefit Plans sponsored by any Seller or any of its Affiliates (other than any Company) that are not transferred to a collective bargaining agreementCompany, this Section 5.9 only which new Benefit Plans have substantially similar terms to such replaced Benefit Plans. Within thirty (30) days following the date hereof, Sellers shall apply to those provide Buyer with a complete and correct list of each Business Employee and such Business Employee’s seniority, position, salary, plant at which such Business Employee provides services, unionized status, employment termsstatus (e.g., compensation full-time, part-time or if on leave), and employee benefits to the extent they are whether such Business Employee is employed by Envases xx Xxxxxx de las Américas, S. de X.X. de C.V. or Especialidades Xxxxxxxxxx xx Xxxxxxx, X. xx X.X. xx C.V.
(ib) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargaining, but are intended to be equivalent to the employment terms, compensation and employee benefits of Company Employees who are not subject to a collective bargaining agreement; provided that, in all events, the employment terms, compensation and employee benefits set forth in the applicable collective bargaining agreement (as in effect from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For the avoidance of doubt, nothing in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement two (2) year period immediately following the Closing Date.
, Buyer shall provide or cause to be provided to (ai) For each current Business Employee who is employed by a period of two years Company immediately following the Closing Date (the each such Business Employee, a “Continuation PeriodContinuing Employee”), Parent shall providea base salary or base rate of pay, or cause its Subsidiaries (including the Company annual bonus opportunity and the Company Subsidiaries) to provide (A) compensation (including any annual incentive compensation opportunities and bonuses) to the Company Employees that, in the aggregate, is opportunity that are each no less favorable than the base salary or base rate of pay, annual bonus opportunity and incentive compensation opportunity provided by any Seller or any Company to the Company Employees such Continuing Employee immediately prior to the Closing Date and solely with respect to annual bonus and incentive compensation opportunities, disclosed in Section 3.13(a) of the Sellers’ Disclosure Schedules, and (Bii) benefits (including pension and retiree medical benefits) to the Company Employees thatContinuing Employees, in the aggregate, employee benefits (excluding defined benefit pension benefits or other benefits under the Mexican Pension Plan) that are substantially comparable in the aggregate to the employee benefits (excluding defined benefit pension benefits or other benefits under the Mexican Pension Plan) provided by any Seller and any Company to such Continuing Employee immediately prior to the Closing Date and disclosed in Section 3.13(a) of the Sellers’ Disclosure Schedules (provided, however, that Buyer shall provide or cause to be provided to each Continuing Employee whose primary place of employment is in Mexico and who immediately prior to the Closing Date participated in the Mexican Pension Plan or the Business DB Plan, as applicable, with defined benefit pension benefits that are no less favorable than those in effect for such Continuing Employee immediately prior to the Closing Date); provided, further, that the terms and conditions of employment of Continuing Employees who are covered by any labor or collective bargaining agreement shall be as set out in such collective bargaining agreement until such labor or collective bargaining agreement’s expiration, modification or termination in accordance with its terms or applicable Law.
(c) Without limiting the foregoing, for the five (5) year period immediately following the Closing Date, Buyer shall provide or cause to be provided to each Continuing Employee whose primary place of employment is in Mexico who is eligible to retire (within the meaning of the applicable Benefit Plan) within the five (5) year period immediately following the Closing Date (each such employee, a “Retirement Eligible Employee”), pension and retirement benefits that are no less favorable than the pension and retirement benefits provided by the applicable Seller or the applicable Company to such Retirement Eligible Employee immediately prior to the Closing Date under each Benefit Plan providing for pension and retirement benefits and disclosed in Section 3.13(a) of the Sellers’ Disclosure Schedules.
(d) Without limiting the generality of Section 5.14(b), with respect to each Continuing Employee whose primary place of employment is in the United States, Buyer shall keep or cause to keep in effect for at least two (2) years following the Closing Date the severance plans, practices and policies applicable to such Continuing Employees that are substantially comparable in the aggregate to such plans, practices and policies in effect immediately prior to the date hereof with respect to such Continuing Employees, as set forth on Section 3.13(a) of the Sellers’ Disclosure Schedules.
(e) Following the Closing, Buyer shall permit the Continuing Employees, as well as dependents of such employees, to the extent applicable (collectively, with the Continuing Employees, the “Affected Participants”) to commence participation in the applicable employee benefit plans, programs or policies, if any, maintained by Buyer and its Affiliates (each, a “Buyer Plan”) in accordance with the terms and conditions of each such Buyer Plan and the provisions of this Agreement. Buyer shall use best efforts to: (i) waive any evidence of insurability and waiting periods with respect to participation by and coverage in connection with the participation and coverage requirements in connection with the medical, dental and vision benefits that the Affected Participants may be eligible to receive pursuant to such Buyer Plan after the Closing; (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by the Affected Participants under the health plans in which they participated immediately prior to the Closing Date during the portion of the calendar year prior to the Closing Date in satisfying any deductibles, co-payments or out-of-pocket maximums under Buyer Plans in the same plan year in which such deductibles, co-payments or out-of-pocket maximums were incurred to the extent recognized under the applicable Benefit Plan; and (iii) waive any preexisting condition limitations otherwise applicable to Affected Participants under any Buyer Plan that provides health benefits in which the Continuing Employees may be eligible to participate following the Closing to the extent waived under the applicable Benefit Plan.
(f) Following the Closing Date, Buyer shall cause each Continuing Employee to receive full credit for such Continuing Employee’s service with any Seller, any Company Employees and any of their respective predecessors and Affiliates for purposes of eligibility and vesting under any Buyer Plan, benefit accruals under any Buyer Plan (other than any defined benefit pension plan) and benefit accruals under the Business DB Plan (or any successor or replacement thereof) to the same extent recognized under the applicable Benefit Plan immediately prior to the Closing Date. The foregoing shall not prohibit Parent from causing the Company and the Company Subsidiaries to adopt employment or other policies substantially similar to those applicable to employees of Parent and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion).
(b) During the Continuation Period, Parent shall provide or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide each former employee of the Company or any Company Subsidiary who, immediately prior to the Closing Date, is receiving long-term disability payments or benefits (which shall be deemed to include medical benefits) or retiree medical benefits from the Company or any Company Subsidiary retiree medical benefits or long-term disability payments or benefits (as applicable) at a level that is substantially comparable to the level of such payments or benefits provided to such individuals immediately prior to the Closing Date.
(c) Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, cause any “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) maintained by Parent or any of its subsidiaries (including the Company and the Company Subsidiaries) (including any vacation, paid time-off and severance plans) to recognize each Company Employee’s service with the Company or any of the Company Subsidiaries (as well as service with any predecessor of the Company or any Company Subsidiary, to the extent service with such predecessor is recognized by the Company or such Company Subsidiary at Closing), for all purposes, including determining eligibility to participate, level of benefits, vesting, benefit accruals and early retirement subsidies; provided, however, that such sd-625790 service need shall not be recognized to the extent that such recognition would result in any a duplication of benefitsbenefits with respect to the same period of service.
(dg) During With respect to the Continuing Employees whose primary place of employment is in the United States or who are United States employees on assignment outside if the United States, for the ninety (90) calendar year in which the Closing Date occurs, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, waive, or cause to be waived, any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by Parent or any of its Subsidiaries in which Company Employees (and their eligible dependents) will be eligible to participate from and after day period immediately following the Closing Date, except Buyer will not (i) effectuate a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of its business (relating to the extent Companies) or (ii) cause a “mass layoff” to occur (as defined in the WARN Act) affecting any site of employment or facility of either Company, in each of (i) and (ii) that such pre-existing condition limitations, exclusions, actively-at-work does not comply with the requirements and waiting periods would not have been satisfied or waived under the comparable benefit plan of the Company immediately WARN Act.
(h) Without limiting the generality of Section 10.7, the Parties acknowledge and agree that all provisions contained in this Section 5.14 with respect to employees are included for the sole benefit of the Parties and shall not create any right (i) in any other Person, including any Business Employee, former employees, any participant in any Benefit Plan or Buyer Plan or any beneficiary thereof or (ii) to continued employment with any Company, any Seller, a Buyer or any of their respective Affiliates or particular benefits or coverage in any Benefit Plan or Buyer Plan. The provisions of this Section 5.14 shall not constitute an amendment to any Benefit Plan or Buyer Plan and no provision in this Agreement shall constitute a limitation on rights to amend, modify or terminate after the Closing Date any Benefit Plan or Buyer Plan.
(i) On or prior to the Closing Date. Parent shall, one of Sellers shall or shall cause one of its Subsidiaries (including the Company and the Company Subsidiaries) Affiliates to, recognize, or cause to be recognizedestablish a new defined benefit pension plan with the same terms and conditions as the Mexican Pension Plan (such new plan, the dollar amount “Business DB Plan”), transfer the participation of all co-payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) during the calendar year Business Employees who participate in which the Closing Date occurs for purposes of satisfying such year’s deductible and co-payment limitations under the relevant welfare benefit plans in which such Company Employee (and his or her eligible dependents ) will be eligible to participate from and after the Closing Date.
(e) From and after the Closing Date, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, provide any required notice under WARN, and any similar state or local law, and otherwise comply with such laws with respect Mexican Pension Plan to the Company Employees. Notwithstanding Business DB Plan, establish a trust for the foregoing, no provision of this Agreement shall create any right Business DB Plan and fund in any employee to continued employment by cash or cash equivalents the Company, Parent, or any respective Subsidiary or Affiliate thereof, or preclude the ability of the Company, Parent, or any respective Subsidiary or Affiliate thereof to terminate the employment of any employee for any reason, except as set forth in Section 5.9(a). This Section 5.9 shall be binding upon and shall inure solely Estimated Net Pension Liabilities to the benefit of trust for the parties hereto (it being understood that other than the Shareholders’ Representative, no Company shareholder, including any shareholder that is also a Company Employee, is a party to this Agreement), and nothing in this Section 5.9, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Section 5.9 or is intended to be, shall constitute or be construed as an amendment to or modification of any employee benefit plan, program, arrangement or policy of the Company, Parent, or any respective Subsidiary or Affiliate thereof. No Company Employee (including any beneficiary or dependent thereof) shall be regarded for any purpose as a third-party beneficiary of this Agreement pursuant to this Section 5.9 and this Section 5.9 shall not create such rights in any such personBusiness DB Plan.
(f) Parent shall, for at least the first two years following the Closing, maintain the Company’s existing corporate offices in Juneau, Alaska and maintain the artifacts and property contained therein, continue the charitable contribution practices of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790
Appears in 1 contract
Samples: Stock Purchase Agreement (Owens-Illinois Group Inc)
Employment and Benefits Arrangements. With respect to (a) During the period commencing on the Closing Date and ending on the effective date of an Employee's termination of employment with the Company or its Subsidiaries, Buyer shall, and shall cause the Company and its Subsidiaries to, provide each Employee (other than the Key Employees and any Company other Employee who is subject executes any Offer Package Agreement prior to a collective bargaining agreementthe Agreement Date, for which the terms of this Section 5.9 only shall apply to those employment terms, compensation and not apply) who remains employed immediately after the Closing (each a "Company Continuing Employee") with standard employee benefits offered by Buyer to the extent they are (i) not negotiated pursuant to collective bargaining or (ii) negotiated pursuant to collective bargaining, but are intended to be equivalent to the employment terms, compensation and employee benefits its employees of Company Employees who are not subject to a collective bargaining agreementcomparable status; provided that, until such time as Continuing Employees participate in all events, employee benefit plans provided by the employment terms, compensation and employee benefits set forth in the applicable collective bargaining agreement (as in effect Buyer from time to time) shall be respected by Parent, the Surviving Corporation and their Affiliates. For the avoidance of doubt, nothing Continuing Employees shall continue to participate in this Section 5.9 shall limit the negotiating positions that may be taken in connection with any renegotiation of any collective bargaining agreement following the Closing Date.
(a) For a period of two years following the Closing Date (the “Continuation Period”), Parent shall provide, or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide (A) compensation (including any annual incentive compensation opportunities and bonuses) to the Company Employees that, in the aggregate, is no less favorable than the compensation provided to the Company Employees immediately prior to the Closing Date and (B) benefits (including pension and retiree medical benefits) to the Company Employees that, in the aggregate, are no less favorable than the benefits provided to the Company Employees immediately prior to the Closing Date. The foregoing shall not prohibit Parent from causing the Company and the Company Subsidiaries to adopt employment or other policies substantially similar to those applicable to employees of Parent and its other Subsidiaries provided that such policies don’t prohibit or frustrate the foregoing compensation and benefits obligations during the Continuation Period. During the Continuation Period, Parent and the Surviving Corporation shall not terminate the employment of any Company Employee without “cause” (as determined by Parent in its reasonable discretion)Plans.
(b) During the Continuation Period, Parent Buyer shall provide or cause its Subsidiaries (including the Company and the Company Subsidiaries) to provide each former employee recognize as of the Company or any Company Subsidiary whoClosing all accrued but unused vacation and sick pay of the Employees on Schedule 5.18(b); provided, immediately such time shall be utilized by such Employee prior to the Closing Dateend of Buyer's current fiscal year. For purposes of eligibility and vesting under the employee benefit plans of the Buyer other than the Company Employee Plans (the "New Plans"), is receiving long-term disability payments or and for purposes of accrual of vacation and severance benefits (which under applicable New Plans, each Continuing Employee shall be deemed to include medical benefits) credited with his or retiree medical benefits from her years of service recognized by the Company or any Company Subsidiary retiree medical benefits or long-term disability payments or benefits (as applicable) at a level that is substantially comparable before the Closing, to the level same extent as such Continuing Employee was entitled, before the Closing, to credit for such service under any similar Company Employee Plan to the extent permitted by Law. In addition, and without limiting the generality of the foregoing: (i) each Continuing Employee shall be immediately eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a comparable Company Employee Plan in which such Continuing Employee participated immediately before the replacement; and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Continuing Employee, the Buyer shall take commercially reasonable efforts to: (A) cause all pre-existing condition exclusions and actively-at-work requirements of such payments New Plan to be waived for such Continuing Employee and his or benefits provided her covered dependents, and (B) cause any eligible expenses incurred by such Continuing Employee and his or her covered dependents under a Company Employee Plan during the plan year in which the Closing occurs to be taken into account under any corresponding New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such individuals immediately prior to Continuing Employee and his or her covered dependents for the Closing Dateapplicable plan year as if such amounts had been incurred under and in accordance with such New Plan.
(c) Parent shallBuyer is under no obligation to retain any Employee, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) toindependent contractor or consultant, cause or provide any “employee benefit plan” (as defined in Section 3(3) of ERISAEmployee, whether independent contractor or not subject to ERISA) maintained by Parent or any of its subsidiaries (including the Company and the Company Subsidiaries) (including any vacation, paid time-off and severance plans) to recognize each Company Employee’s service with the Company or any of the Company Subsidiaries (as well as service consultant with any predecessor of the Company or any Company Subsidiary, to the extent service with such predecessor is recognized by the Company or such Company Subsidiary at Closing), for all purposes, including determining eligibility to participate, level of benefits, vesting, benefit accruals and early retirement subsidies; provided, however, that such sd-625790 service need not be recognized to the extent that such recognition would result in any duplication of particular benefits.
(d) During the calendar year in which the Closing Date occurs, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, waive, or cause This Section 5.18 is not intended to be waived, amend any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by Parent or any of its Subsidiaries in which Company Employees (and their eligible dependents) will be eligible to participate from and after the Closing Date, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable benefit plan of the Company immediately prior to the Closing Date. Parent shall, or shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, recognize, or cause to be recognized, the dollar amount of all co-payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) during the calendar year in which the Closing Date occurs for purposes of satisfying such year’s deductible and co-payment limitations under the relevant welfare benefit plans in which such Company Employee (and his or her eligible dependents ) will be eligible to participate from and after the Closing Dateprograms of Buyer.
(e) From and after the Closing Date, Parent shall, and shall cause its Subsidiaries (including the Company and the Company Subsidiaries) to, provide any required notice under WARN, and any similar state or local law, and otherwise comply with such laws with respect to the Company Employees. Notwithstanding the foregoing, no provision of this Agreement shall create any right in any employee to continued employment by the Company, Parent, or any respective Subsidiary or Affiliate thereof, or preclude the ability of the Company, Parent, or any respective Subsidiary or Affiliate thereof to terminate the employment of any employee for any reason, except as set forth in Section 5.9(a). This Section 5.9 shall be binding upon and shall inure solely to the benefit of the parties hereto (it being understood that other than the Shareholders’ Representative, no Company shareholder, including any shareholder that is also a Company Employee, is a party to this Agreement), and nothing in this Section 5.9, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Section 5.9 or is intended to be, shall constitute or be construed as an amendment to or modification of any employee benefit plan, program, arrangement or policy of the Company, Parent, or any respective Subsidiary or Affiliate thereof. No Company Employee (including any beneficiary or dependent thereof) shall be regarded for any purpose as a third-party beneficiary of this Agreement pursuant to this Section 5.9 and this Section 5.9 shall not create such rights in any such person.
(f) Parent shall, for at least the first two years following the Closing, maintain the Company’s existing corporate offices in Juneau, Alaska and maintain the artifacts and property contained therein, continue the charitable contribution practices of the Company and the Company Subsidiaries and community support practices of the Company and the Company Subsidiaries. In addition, Parent shall honor the commitments of the Company and the Company Subsidiaries under existing collective bargaining agreements. sd-625790
Appears in 1 contract
Samples: Stock Purchase Agreement (PTC Inc.)
