Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee. (b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time. (c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program. (d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share. (e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule. (f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs. (g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith. (h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8. (i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 2 contracts
Samples: Merger Agreement (Extra Space Storage Inc.), Merger Agreement (Life Storage Lp)
Employment Matters. (a) During Prior to Closing, Seller shall from time to time provide to Purchaser, to the period commencing on extent permitted by applicable Law, an updated Employee Census (but in no event shall an updated Employee Census be provided more than two (2) times prior to Closing as long as an updated Employee Census is provided reasonably close to the Closing Date allowing reasonably sufficient time for Purchaser to review), that includes the names of the employees that are primarily involved in the Business (which, for the avoidance of doubt, unless otherwise agreed upon by Seller and ending on Purchaser, shall not include employees of Seller or any of its Subsidiaries or Affiliates that hold positions serving primarily executive or general and administrative functions that are not exclusive to the date Business); provided that any Employee Census delivered to Purchaser pursuant to this Section 8.02(a) shall include the Acquired Company that employs such employee, location of employment (city and country), country through which such employee’s payroll is twelve run, status as active or inactive (12) months after the Closing (including layoff status), current annual/hourly rate of salary and target annual bonus/commission, accrued but unused sick and vacation leave or if earlierpaid time off, the whether such employee is a temporary employee, whether such employee is an expatriate, whether such employee is full time or part time, date of hire, length of service, job title, group and function, and business unit (provided that the Continuing Employee’s termination foregoing information may be adjusted or deleted by Seller to the extent consistent with local Law requirements or practices or to the extent such information is inapplicable to employees in a jurisdiction). The Parties acknowledge and agree that Seller shall use commercially reasonable efforts to maintain the accuracy of employment with Parent and the Parent SubsidiariesEmployee Census, including as a result of employee terminations, transfers (within Seller or the Acquired Companies), Parent shallnew hires; provided that the Employee Census shall not be deemed inaccurate for purposes of this Agreement due to inadvertent errors or omissions of non-executive employees which do not, and in the aggregate, exceed a de minimis amount, so long as Seller corrects such errors or omissions within a reasonable time after discovery thereof. Purchaser shall use commercially reasonable efforts to cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary Acquired Companies immediately prior to the Company Merger Effective Time Closing to continue in employment with Purchaser and who remains employed by Parent or any Parent Subsidiary as of its Affiliates (including the Company Merger Effective Time Acquired Companies) immediately following the Closing (each, a “Continuing Employee” and collectivelysuch employees, the “Continuing Employees”). Following the Closing, Purchaser shall honor and perform in accordance with their terms all Plans, including without limitation, all employment, severance, bonus, transaction incentive and other compensation agreements. Prior to the Closing and no later than the deadline set forth in any Plan, the Company shall use commercially reasonable efforts to deliver any and all notices required under any Plan to the Continuing Employees with respect to the transactions contemplated by this Agreement.
(b) with For a period of not less than eighteen (18) months after the Closing Date, Purchaser and its Affiliates shall provide, or shall cause the Acquired Companies to provide, to each Continuing Employee that remains in service to an Acquired Company, (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closingregular hourly wage, as applicable, and bonus opportunity that, when taken as a whole, and (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(aemployee benefits (including health, welfare, retirement and severance benefits) of the Company Disclosure Schedulethat, when clauses (i) and (iiiii) other compensation and employee benefits that are no less favorabletaken together, are substantially equivalent, in the aggregate, than to those provided to such Continuing Employee immediately prior as of the date of this Agreement; provided that, except as may be prohibited by applicable Law, the terms of any Plan or any contractual obligation of Purchaser or its Affiliates (including the Acquired Companies) to any Continuing Employee, Purchaser and its Affiliates may modify such compensation and benefits as appropriate to reflect any material adverse developments in or affecting the ClosingBusiness occurring after the date of this Agreement.
(c) Effective as of the Closing and thereafter, provided, however, that no post-retirement medical, equity-based compensation, deferred compensationPurchaser and its Affiliates shall recognize, or retentionshall cause the Acquired Companies to recognize, change-in-control each Continuing Employee’s continuous employment or other special service with the Acquired Companies (including any current or non-recurring compensation former Affiliate of the Acquired Companies or benefits provided any predecessor of the Acquired Companies) prior to the Closing shall be taken into account for purposes of Parent’s obligations determining, as applicable, eligibility for participation and vesting of the Continuing Employee under this Section 7.8(a)all employee benefit plans maintained by the Acquired Companies, Purchaser or an Affiliate of Purchaser, including vacation plans or arrangements, 401(k) or other retirement plans and any severance or welfare plans, except to the extent such recognition would result in a duplication of benefits. For the avoidance of doubt, nothing in this Agreement respect of any Plan that provides for any “defined benefit” accruals and calculations, the service credit shall require Parent apply with respect to eligibility and not for purposes of benefit accrual calculations. In addition, and without limiting the generality of the foregoing, effective as of the Closing and thereafter, to the extent Purchaser is permitted by Law and the terms of the applicable benefit plan, Purchaser and its Affiliates shall, or shall cause the Acquired Companies to use reasonable best efforts to, (i) cause any Parent Subsidiary pre-existing conditions or limitations, eligibility waiting periods, evidence of insurability requirements or required physical examinations under any health or similar plan of the Acquired Companies, Purchaser or an Affiliate of Purchaser to employ be waived with respect to Continuing Employees and their eligible dependents, except to the extent that any Personwaiting period, nor exclusions or requirements still applied to such Continuing Employee under the comparable Plan in which such Continuing Employee participated immediately before the Closing, and (ii) to the extent applicable and comparable, fully credit each Continuing Employee with all deductible payments, co-payments and other out-of-pocket expenses incurred and paid by such Continuing Employee and his or her covered dependents under the medical, dental, pharmaceutical or vision benefit plans of the Acquired Companies or their Affiliates prior to the Closing during the plan year in which the Closing occurs for the purpose of determining the extent to which such Continuing Employee has satisfied the deductible, co-payments, or maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for such plan year under any medical, dental, pharmaceutical or vision benefit plan of the Acquired Companies, Purchaser or an Affiliate of Purchaser in which such Continuing Employees are eligible to participate in after the Closing, as if such amounts had been paid in accordance with such plan. The Seller and Acquired Companies shall it alter ensure that, pursuant to Section 12.2 of the at-will employment Caesar’s Entertainment Corporation Savings & Retirement Plan (the “Caesars 401(k) Plan”), the status of any Continuing EmployeeAcquired Company as a Participating Employer in the Caesars 401(k) Plan under Section 12.1 of the Caesars 401(k) Plan will be automatically terminated upon the Closing as a result of such Acquired Company ceasing to be an Affiliate (as defined under Section 1.3 of the Caesars 401(k) Plan), and the Acquired Companies shall take all other steps necessary to terminate participation in the Caesars 401(k) Plan as of the Closing.
(bd) From Purchaser and after the Company Merger Effective Time, Parent Seller shall, and shall cause each Parent Subsidiarytheir respective Affiliates to, cooperate to take all steps, on a timely basis, as applicableare required under applicable Law to notify or consult with employees, employee representatives, trade unions notices or works councils notices, information sharing or other similar obligations required in connection with the transactions contemplated by this Agreement and, to honorthe extent permitted by applicable Law, in accordance provide the other party hereto with their termsall information reasonably necessary for satisfaction of its notice, all severance and separation pay plansinformation sharing or other similar obligations to employees, agreements and arrangementsemployee representatives, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company trade unions or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Timeworks councils.
(ce) Parent shall, and No provision of this Agreement shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results create any third-party beneficiary or other rights in a duplication any current or former employee, director or other service provider of benefitsthe Company, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated construed as an amendment, modification, adoption, suspension waiver or termination creation of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementPlan.
Appears in 2 contracts
Samples: Stock Purchase Agreement (CAESARS ENTERTAINMENT Corp), Stock Purchase Agreement (Caesars Acquisition Co)
Employment Matters. (a) During the period commencing on On or before the Closing Date, Buyer may contact and ending on the date that is twelve (12) months after have discussions with any employee of Seller and offer employment to any such employee, effective as of the Closing (or if earlierDate, as Buyer may elect on terms acceptable to Buyer. Between the date of the Continuing Employee’s termination of employment with Parent this Agreement and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) Buyer shall offer conditional employment to each Business Employee. Buyer’s offers of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior conditional employment to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided Business Employees shall be “at will” and with responsibilities and duties comparable to the responsibilities and duties of those individuals employment with Seller prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For Date and with base salary and benefits, on a going-forward basis, that are substantially comparable in the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary aggregate to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From base salary and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately benefits provided by Seller prior to the Company Merger Effective Time.
(c) Parent shallClosing Date, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which provided that such Continuing Employee is employees will be eligible to participate in incentive compensation and bonus plans on the same terms as provided to similarly situated employees of Buyer. Any offer of conditional employment by Buyer to a Business Employee shall be contingent on such employee satisfactorily completing Buyer’s ordinary course employee pre-hire process. Seller shall cooperate with and assist Buyer in such efforts, including providing access to the Business Employees as requested by Buyer (but any such Business Employee that accepts employment with Buyer, a “Transferred Employee”). Seller hereby agrees to terminate and consents to the hiring of the Transferred Employees by Buyer and waives in perpetuity, with respect to the employment or engagement by Buyer of the Transferred Employees, any claims or rights Seller may have against Buyer, any of its Affiliates or any such Transferred Employees under any non-competition, confidentiality, employment, assignment of inventions or similar Contract (other than such rights that are assigned to Buyer pursuant to this Agreement). Seller acknowledges and agrees that Buyer shall not for purposes have any liability relating to or arising out of the employment of any benefit accrual under any defined benefit pension plan) employee of Seller up to Closing and with respect to the same extent that termination of any employee of Seller on or before the Closing Date. Buyer shall not have any liability with respect to any current or former employee of Seller, including any Transferred Employee, arising from such service was recognized under a similar plan, program, policy, agreement employee’s employment or arrangement engagement with Seller or the termination of the Company such employee’s employment or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) engagement with Seller. Without limiting the generality of Section 7.8(a)the foregoing, (i) cash incentive bonuses from and after the Closing Date, Seller shall retain liability and remain responsible for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, any and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment all liabilities in respect of the Change employees of Seller and their beneficiaries and dependents relating to or arising in Control Price (connection with or as defined in the Company’s 2015 Award and Option Plan as in effect on the date a result of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions the employment or engagement or the termination of employment or engagement of any such employee by Seller (including in connection with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses consummation of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, ); (ii) give Parent a reasonable period the participation in or accrual of time benefits or compensation under, or the failure to review participate in or to accrue compensation or benefits under, or the operation and comment on the communication administration of, any Employee Benefit Plan; and (iii) consider accrued but unpaid salaries, wages, bonuses, commissions, incentive compensation, vacation or sick pay or other compensation or payroll items (including, without limitation, deferred compensation) relating to such individual’s employment by or engagement with Seller. Further, Seller shall remain responsible for the payment of any such comments and all retention, change in good faithcontrol, severance or other similar compensation or benefits which are or may become payable in connection with the consummation of the transactions contemplated by this Agreement. Nothing in this Agreement shall obligate Buyer to retain any Transferred Employee in its employ for any specific time period. Buyer may (i) unilaterally change the salary (either by increase or decrease) and/or the title and duties of any Transferred Employee at any time on or after the Closing Date and (ii) at Buyer’s sole discretion, change or eliminate any of the plans, policies or arrangements of Buyer applicable to the Transferred Employees.
(hb) During Seller shall be responsible for timely compliance with all federal, state and local Laws with respect to the Interim Period, effect to any of its employees of the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed transactions contemplated by this Section 7.8Agreement or by any Related Agreement, including the Worker Adjustment and Retraining and Notification Act of 1988, as amended (“WARN”). Seller agrees that it will not take any action that causes the notice provisions of WARN or any state or local analog to WARN to be applicable to the transactions contemplated by this Agreement or by any Related Agreement.
(ic) Nothing Seller and its respective ERISA Affiliates (if any) shall provide COBRA coverage to all “M&A qualified beneficiaries” associated with the transactions contemplated by this Agreement in accordance with Treasury Regulation §54.4980B-9.
(d) None of the provisions of this Section 7.8 shall (i) confer 6.12 are intended to be for the benefit of, or otherwise enforceable by, any rights upon third party, including, without limitation, any Person, including any Continuing Employee or former employee of the Company or the Company SubsidiariesSeller, other than the Parties to this Agreement and their respective successors and permitted assigns, no employee of Seller (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iiidependents of such employees) constitute or will be treated as an amendment, modification, adoption, suspension third party beneficiaries in or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementunder this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Ballard Power Systems Inc.)
Employment Matters. (a) During the period commencing on the Closing and ending on As soon as practicable following the date that is twelve hereof, FMCTI and Technip shall appoint a cooperative compensation integration committee comprised of an equal number of representatives from each of FMCTI and Technip (12the “Compensation Integration Committee”) months after to develop a compensation and benefits framework for management of Topco and its Subsidiaries (the Closing (or if earlier“Compensation Integration Program”), which shall be determined by the date Compensation Integration Committee and approved by the compensation committee of the Continuing Employee’s termination of employment with Parent and Topco Board, provided that the Parent Subsidiaries), Parent shall, and Compensation Integration Program shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with be (i) except as otherwise mutually agreed between Parent developed in accordance with, and such Continuing Employeesubject to, a base salary applicable Law and any applicable Labor Agreements or base wage rate that is not less than the base salary any existing contractual obligations or base wage rate provided to such Continuing Employee immediately prior to the Closing, rights and (ii) target annual subject in all respects to any employee representative bodies, works council or other short-term periodic cash incentive opportunities that are not less than the target annual legally required notification or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeeconsultation rights.
(b) As part of the Compensation Integration Program, the Compensation Integration Committee shall develop, and the Topco Board (or a committee thereof) shall adopt, an equity incentive plan for the benefit of Service Providers of Topco, the Technip Group and the FMCTI Group from and after the Merger Effective Date. As soon as practicable following the Merger Effective Date, Topco shall (i) file a registration statement on Form S-8 (or any successor or other appropriate forms) with the SEC with respect to the Topco Shares reserved under such equity incentive plan and (ii) grant Topco Stock Awards to Technip employees with (A) an aggregate value and (B) terms and conditions, in each case, that are no less favorable than the aggregate value and terms and conditions applicable to the 2017 FMCTI Awards (as defined in Section 5.1(d) of the FMCTI Disclosure Letter) (the “2017 Technip Awards”), as applicable (it being understood that in connection with the grant of the 2017 Technip Awards, the Topco Board (or an applicable committee thereof) shall undertake to allocate the value of the 2017 Technip Awards among Technip employees in a manner that is consistent with the treatment of similarly situated FMCTI employees who received 2017 FMCTI Awards, taking into account each such employee’s respective aggregate compensation package).
(c) From and after the Company Merger Technip Effective Time, Parent shallTopco shall honor, or cause to be honored, all obligations or commitments set forth on Section 5.18(c) of the Technip Disclosure Letter. Subject to the Compensation Integration Program, from and after the FMCTI Effective Time or the Technip Effective Time, Topco shall honor, or cause to be honored, all contractual obligations under Benefit Plans and Labor Agreements. For all purposes under the employee benefit plans of Topco and its Subsidiaries providing benefits to any current or former employee of FMCTI or Technip or any of their respective Subsidiaries after the FMCTI Effective Time or the Technip Effective Time, as applicable, (the “New Plans”), and subject to applicable Law and obligations under applicable Labor Agreements, each such employee shall cause each Parent Subsidiarybe credited with his or her years of service with FMCTI or Technip or any of their respective Subsidiaries (or any predecessor employers of any such entity), as the case may be, before the FMCTI Effective Time or the Technip Effective Time, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that as such employee was entitled, before the FMCTI Effective Time or the Technip Effective Time, as applicable, to credit for such service was recognized under a similar planany comparable FMCTI Benefit Plan or Technip Benefit Plan, program, policy, agreement or arrangement of the Company or any Company Subsidiaryas applicable, except that no such prior service credit will be required or provided to the extent that (i) it results such credit would result in a duplication of benefits. In addition, and without limiting the generality of the foregoing, and subject to applicable Law and obligations under applicable Labor Agreements: (i) each employee of FMCTI or Technip or any of their respective Subsidiaries shall be immediately eligible to participate, without any waiting time, in any and all New Plans which are welfare benefit plans to the extent coverage under such New Plan replaces coverage under a comparable FMCTI Benefit Plan or Technip Benefit Plan, as applicable, in which such employee participated immediately before the FMCTI Effective Time or the Technip Effective Time, as applicable (such plans, collectively, the “Old Plans”); and (ii) for purposes of each New Plan that is a welfare benefit plan (including those providing for medical, dental, pharmaceutical and/or vision benefits), Topco shall cause all pre-existing condition exclusions, actively-at-work requirements, evidence of insurability and other similar limitations or requirements of such service was not recognized under New Plan to be waived for such employee (and his or her eligible dependents), and to the extent that an Old Plan is terminated and an employee becomes covered by a New Plan prior to the completion of the plan year for the Old Plan, then Topco shall recognize and cause any eligible co-payments, deductibles and other similar expenses incurred by such employee (and his or her eligible dependents) during the portion of the plan year of the Old Plan ending on the date such employee’s participation in the corresponding Company Employee ProgramNew Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance, maximum out-of-pocket requirements and similar limitations applicable to such employee (and his or her eligible dependents) for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(d) Technip and FMCTI, if applicable, shall comply with their respective obligations to notify and consult with the relevant employee representative bodies, works councils, unions, labor boards and relevant Governmental Entities in connection with the transactions contemplated by this Agreement, as the case may be, in accordance with applicable Law to the extent such notifications and consultations have not occurred pursuant to the MOU, which such notifications and consultations shall be conducted in accordance with Sections 1(b)-1(e) of the MOU, mutatis mutandis. The parties agree to work together in good faith to further inform and/or consult with, or obtain the consent or formal advice of, any labor or trade union, works council or other employee representative body as may be required or appropriate to consummate the transactions contemplated by this Agreement.
(e) At least ten Business Days prior to the Technip Effective Time, the parties shall disclose to each other their good-faith estimates of any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) of such party that would, individually or in combination with any other such payment, reasonably be expected to constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code) as a result of the consummation of the transactions contemplated by this Agreement, either alone or in combination with another event.
(f) Without limiting the generality of Section 7.8(a)8.9, (i) cash incentive bonuses for calendar year 2023 this Section 5.18 shall be treated as binding upon and inure solely to the benefit of the parties to this Agreement, and nothing in this Section 5.18, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.18. Nothing in this Agreement, express or implied, is or shall be construed to establish, amend or modify any Benefit Plan, Labor Agreement or any other employee or director compensation or benefit plan. The terms set forth in this Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that 5.18 shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee FMCTI or Technip Service Provider or any employee of their respective Subsidiaries or any other Person to any continued employment with Topco, FMCTI, Technip or service with their respective Subsidiaries or for, or any right to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program nature or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementkind whatsoever.
Appears in 2 contracts
Samples: Business Combination Agreement (FMC Technologies Inc), Business Combination Agreement (FMC Technologies Inc)
Employment Matters. (a) During For at least one (1) year following the period commencing on Effective Time (or until termination of the relevant employee, if earlier), Buyer shall provide or cause the Surviving Corporation to provide, and the Surviving Corporation immediately following the Closing and ending on the date that is twelve (12) months after the Closing (or if earlieragrees to provide, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee to all employees of the Company or any Company Subsidiary immediately prior to and the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of Subsidiaries at the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Company Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate level that is not less than reasonably comparable to the base salary or base wage rate provided level to such Continuing Employee immediately prior to which they were entitled at the ClosingEffective Time, (ii) target annual or other short-term periodic cash incentive opportunities benefits and perquisites that are not less than reasonably comparable in the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) aggregate to the benefits and perquisites that similarly situated employees of Buyer were entitled to receive at the Company Disclosure Schedule, Effective Time and (iii) other compensation terms and employee benefits conditions of employment that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior reasonably comparable to the Closingterms and conditions applicable to similarly situated employees of Buyer at the Effective Time. To the extent permitted under Law, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing each Company Employee shall be taken into account for purposes subject to a background check and drug screening as a condition of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeecontinued employment.
(b) From and after Following the Company Merger Effective Time, Parent shallBuyer shall take commercially reasonable efforts to cause the Surviving Corporation to ensure, and shall the Surviving Corporation immediately following the Closing agrees to take commercially reasonable efforts to ensure, or cause each Parent Subsidiaryto ensure, that, except as applicablerequired by the insurance company, no limitations or exclusions as to honorpre-existing conditions, in accordance with their termsevidence of insurability or good health, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) waiting periods or actively-at-work exclusions or other limitations or restrictions on coverage are applicable to any Company Employees or their dependents or beneficiaries under any welfare benefit plans in which such employees may be eligible to participate, other than those in place for similarly situated employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective TimeBuyer.
(c) Parent shallWith respect to each employee benefit plan, policy or practice, including vacation and paid time off plans, policies or practices, sponsored or maintained by the Surviving Corporation or its Affiliates, but without duplication of benefits, Buyer shall cause the Parent Subsidiaries toSurviving Corporation to grant or cause to be granted, provide and the Surviving Corporation immediately following the Closing agrees to grant, or cause to be granted, to all Company Employees from and after the Effective Time credit for each Continuing Employee’s length of all service with the Company and its predecessors, prior to the Company Subsidiaries Effective Time for all purposes (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibilityincluding eligibility to participate, vesting credit, eligibility to commence benefits and benefit level under any employee vacationaccrual, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any with respect to defined benefit pension plan) plans or retirement medical plans), subject to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement terms of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Programplans.
(d) Without limiting the generality No provision of Section 7.8(a), this Agreement shall (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth create any right in Section 7.8(d)(i) of the any Company Disclosure Schedule, and (ii) with respect Employee to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Timecontinued employment by Buyer, the right Surviving Corporation or any of their Affiliates, or preclude the holder thereof to any payment in respect ability of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the MergerBuyer, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash Corporation or any of their Affiliates to terminate the employment of any employee for any reason (and including, for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with during the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days one-year period immediately following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication), (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Periodrequire Buyer, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee Surviving Corporation or any other Person of their Affiliates to continue any continued employment Employee Benefit Plans or service with prevent the amendment, modification or for, or to receive any compensation or benefits from, termination thereof after the Company, the Company Subsidiaries, Parent or the Parent SubsidiariesEffective Time, (iii) constitute or be treated as an amendmentconfer upon any employee of Buyer, modification, adoption, suspension or termination of any Company Employee Program the Surviving Corporation or any Parent Employee Programof their Affiliates any rights or remedies under or by reason of this Agreement, or (iv) alter or limit the ability be treated as an amendment to any particular employee benefit plan of the CompanyBuyer, the Company Subsidiaries, Parent Surviving Corporation or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementtheir Affiliates.
Appears in 2 contracts
Samples: Merger Agreement (Majesco), Merger Agreement (Majesco)
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and or shall cause each a Parent Subsidiary, as applicable, to, to take the actions specified in Section 7.8(a) of the Company Disclosure Letter and provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by continues in employment with Parent or any Parent Subsidiary as of following the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with with, unless (iA) except as otherwise mutually agreed between Parent and such Continuing EmployeeEmployee or (B) relating to any Continuing Employee who receives a change in control-related severance benefit pursuant to Section 7.8(c), (i) a base salary or base wage rate that is not less than the base salary or base wage rate rate, as applicable, provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities bonus opportunity that are is not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) bonus opportunity provided to such Continuing Employee as of immediately prior to the Company Disclosure ScheduleClosing, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the ClosingClosing or to similarly situated employees of Parent or a Parent Subsidiary, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(gc) Parent acknowledges and agrees that the change in control-related severance benefits payable to certain officers and vice presidents of the Company and its Subsidiaries pursuant to Section 6(c) of the employment agreements and Section 1(c) of the change in control agreements, in each case, as set forth in Section 7.8(c) of the Company Disclosure Letter shall become payable in full as of the Company Merger Effective Time, subject to the terms and conditions thereof (including such officer’s obligation to comply with the covenants described therein and such officer’s execution, timely return and non-revocation of the release of claims described therein (the “Release”)), irrespective of whether the officers or vice presidents party to such agreements are Continuing Employees; provided, however, that such severance benefits shall only become payable if such officer or vice president acknowledges and agrees in writing, in a form reasonably prescribed by Pxxxxx (including in the Release if so determined by Parent), that such officer or vice president shall have no further right or entitlement to any additional severance payments or benefits from Parent, the Company or any Subsidiary thereof, and that any provision(s) of such agreements providing for further severance payments or benefits shall cease to have any force or effect.
(d) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(he) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(if) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee ProgramProgram or other benefit plan or program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 2 contracts
Samples: Merger Agreement (Healthpeak Properties, Inc.), Merger Agreement (Physicians Realty Trust)
Employment Matters. (a) During From the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing Effective Time through December 31, 2024 (or if earliershorter, during the date period of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiariesemployment), Parent shall, and or shall cause the Parent Subsidiaries (including the Surviving Corporation and its Subsidiaries) to provide to each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any and the Company Subsidiary Subsidiaries as of immediately prior to the Company Merger Effective Time and who remains continues to be employed by Parent or any and the Parent Subsidiary as of Subsidiaries (including the Company Merger Surviving Corporation and its Subsidiaries) after the Effective Time (each, a “Continuing Company Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a at least the same annual base salary or base wage rate that is not less than the base salary or base wage rate rate, as applicable, as provided to such Continuing Company Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, Effective Time; provided, however, that, in the event there is a reduction in base salaries or wage rates that no post-retirement medicalaffect substantially all employees of Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) after the Effective Time, equity-based compensationthe annual base salary or wage rate of similarly situated Continuing Company Employees may be commensurately reduced. In order to further an orderly transition and integration, deferred compensationand subject to applicable law, Parent and the Company shall cooperate in good faith in reviewing, evaluating and analyzing the Parent Benefit Plans and Company Benefit Plans with a view towards developing appropriate new benefit plans, or retentionselecting the Parent Benefit Plans or Company Benefit Plans, change-in-control or other special or non-recurring compensation or benefits provided prior as applicable, that will apply with respect to employees of Parent and the Parent Subsidiaries (including the Surviving Corporation and its Subsidiaries) after the Effective Time (collectively, the “New Benefit Plans”), which New Benefit Plans will, to the Closing shall be taken extent permitted by applicable law, and among other things, (i) treat similarly situated employees on a substantially equivalent basis, taking into account for purposes of Parent’s obligations under this Section 7.8(a). For all relevant factors, including duties, geographic location, tenure, qualifications and abilities, and (ii) not discriminate between employees who were covered by Parent Benefit Plans, on the avoidance of doubtone hand, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Personand those covered by Company Benefit Plans, nor shall it alter on the at-will employment status of any Continuing Employeeother hand, at the Effective Time.
(b) From For purposes of eligibility, participation, vesting and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements level of benefits (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
except (c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiaryi) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan or retiree medical plan, (ii) vesting under any equity or equity-based compensation plans, (iii) to the extent that such credit would result in a duplication of benefits, or (iv) under any plan that is grandfathered or frozen) under the Parent Benefit Plans, Company Benefit Plans and the New Benefit Plans, service with or credited by the Company and the Company Subsidiaries or any of their respective predecessors to an employee of the Company and the Company Subsidiaries as of immediately prior to the Effective Time who is or continues to be employed by Parent and the Parent Subsidiaries (including the Surviving Corporation and its Subsidiaries) after the Effective Time (each, a “Continuing Parent Employee”) shall be treated as service with Parent and the Parent Subsidiaries to the same extent that such service was recognized taken into account under a similar plan, program, policy, agreement or arrangement of the analogous Company or any Company Subsidiary, except that no such Benefit Plan prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee ProgramEffective Time.
(dc) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with With respect to each any Company 2015 Benefit Plan, Parent Benefit Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option or New Benefit Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Parent Employee participates that provides health or welfare benefits Continuing Company Employee first becomes eligible to participate on or after the Effective Time, and in which such employees did not participate prior to the Effective Time, Parent shall use commercially reasonable efforts to: (i) waive all limitations as to preexisting conditions, exclusions, exclusions and waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employeessuch employees and their eligible dependents, other than limitations applicable under the corresponding Company Employee Program or except to the extent that such preexisting condition limitationspre-existing conditions, exclusions, actively-at-work requirements and exclusions or waiting periods would not have been satisfied or waived apply under the comparable analogous Parent Benefit Plan or Company Employee Program Benefit Plan, as the case may be, and (ii) honor provide each such employee and his or her eligible dependents with credit for any paymentsco-payments and deductibles paid prior to the Effective Time (or, charges and expenses of Continuing Employees if later, prior to the time such employee commenced participation in the New Benefit Plan) under a Parent Benefit Plan or Company Benefit Plan (and their eligible dependentsto the same extent that such credit was given under the analogous Parent Benefit Plan or Company Benefit Plan) that were applied toward the in satisfying any applicable deductible and or out-of-pocket maximums requirements under the corresponding any Company Employee Program in satisfying any applicable deductiblesBenefit Plan, out-of-pocket maximums Parent Benefit Plan or co-payments under a corresponding Parent Employee Program during the calendar year New Benefit Plan in which such employee first become eligible to participate after the Closing occursEffective Time.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(id) Nothing in this Section 7.8 5.3 shall (i) confer be construed as an amendment or other modification of, or the termination of, any Company Benefit Plan, Parent Benefit Plan or other employee benefit plan or arrangement, (ii) limit the right of Parent, the Company or any of their respective subsidiaries to amend, terminate or otherwise modify any Company Benefit Plan, Parent Benefit Plan or other employee benefit plan or arrangement, (iii) be construed to create any third party beneficiary rights upon any Person, including in any Continuing Employee Parent Employee, the Continuing Company Employee, or any other current or former employee or service provider or any of their respective beneficiaries, or (iv) be construed to limit the right of Parent or the Parent Subsidiaries or the Company or the Company Subsidiaries, other than Subsidiaries to terminate the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in of any Continuing Employee Parent Employee, the Continuing Company Employee, or any other Person to any continued employment employee or service provider, in each case, in accordance with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementapplicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Desktop Metal, Inc.), Merger Agreement (Nano Dimension Ltd.)
Employment Matters. (a) During The Company agrees that, from and after the period commencing date hereof, Purchaser may offer employment, effective as of the Closing, to any Persons employed by the Company, which employment will become effective as of the Closing Date and only if the Closing occurs. Only if the Closing occurs, any such Person who accepts such an offer of employment with Purchaser shall be a Transferred Employee and shall be employed by Purchaser on such terms and conditions as Purchaser and each such Transferred Employee may mutually agree. Upon request of Purchaser, Sellers shall provide Purchaser reasonable access to data (including computer data) regarding the dates of hire, compensation, benefits, and job descriptions of the Transferred Employees.
(b) At Closing, Purchaser shall make available or establish such employee benefit plans, programs and policies for the benefit of the Transferred Employees and their eligible dependents as Purchaser shall elect to make available to the Transferred Employees (the Purchaser Plans). With respect to participation in any Purchaser Plans, Purchaser shall credit (i) each Transferred Employee with his or her service with the Company between the Petition Date and the Closing Date to the same extent such service would have been credited had such service been with Purchaser, up to the priority limits imposed by Section 507 of the Bankruptcy Code and (ii) the Transferred Employees with all service recognized by the Company under the Employee Plans as service with Purchaser for purposes of eligibility to participate and vesting under the Purchaser Plans, but not for the purpose of benefit accruals, provided that the foregoing shall not be construed to require crediting of service that would result in duplication of benefits. Purchaser shall waive any coverage-waiting period, pre-existing condition, and actively-at-work requirements under the Purchaser Plans to the extent such conditions or requirements have been satisfied under corresponding Employee Plans as of the Closing Date and shall use commercially reasonable efforts to provide that any eligible expenses incurred under the applicable Employee Plan before the Closing Date by a Transferred Employee (and his or her dependents) during the calendar year of the Closing and ending on timely disclosed to Purchaser by such Transferred Employee in accordance with the date that is twelve (12) months after the Closing (or if earlier, the date terms and conditions of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing applicable Purchaser Plan shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For satisfying the avoidance of doubtapplicable deductible, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shallcoinsurance, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangementsmaximum out-of-pocket provisions, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees annual and/or lifetime maximum benefit limitations of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Timesuch applicable Purchaser Plan.
(c) Parent shall, and The Company shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with promptly notify Purchaser if any predecessor employer of the Company Company’s directors or officers becomes aware that any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided key personnel set forth on Schedule 5.07(c) intends to leave the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee ProgramCompany’s employ.
(d) Without limiting the generality of Section 7.8(a), Purchaser shall adopt (i) cash incentive bonuses the “standard procedure” for preparing and filing IRS Forms W-2 (Wage and Tax Statements), as described in Revenue Procedure 2004-53. Under this procedure, Purchaser, as the successor employer, shall provide Forms W-2 to all Transferred Employees reflecting all wages paid and taxes withheld by Purchaser as the successor employer for the portion of the calendar year 2023 beginning on the day after the Closing Date. The Company, as the predecessor employer, shall be treated as set forth in Section 7.8(d)(i) provide Forms W-2 to all Transferred Employees reflecting all wages paid and taxes withheld by the Company for the portion of the Company Disclosure Schedulecalendar year beginning January 1, 2008 and ending on the Closing Date. Purchaser shall adopt the “standard procedure” of Rev. Proc. 2004-53 for purposes of IRS Forms W-4 (iiEmployee’s Withholding Allowance Certificate) and W-5 (Earned Income Credit Advance Payment Certificate). Under this procedure, Purchaser shall keep on file the Forms W-4 and W-5 provided by the Transferred Employees for the period required by applicable Legal Requirements concerning record retention. Purchaser shall obtain new IRS Forms W-4 and W-5 with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted ShareTransferred Employee.
(e) Parent The parties hereto acknowledge and agree that all provisions contained in this Section 5.07 are included for the Company shall take the actions described in Section 7.8(e) sole benefit of the Company Disclosure Schedule.
(f) Parent shall useparties hereto, and that nothing in this Agreement, whether express or implied, shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which create any Continuing Employee participates that provides health third party beneficiary or welfare benefits to other rights (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, in any other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee employee or former employee of the Company (including the Transferred Employees), any participant in any employee benefit plan maintained by Purchaser or the Company Subsidiariesany of its Affiliates, other than the Parties to this Agreement and their respective successors and permitted assignsor any dependent or beneficiary thereof, or (ii) constitute or create an to continued employment agreement or create any right in any Continuing Employee with Purchaser or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementits Affiliates.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Distributed Energy Systems Corp), Asset Purchase Agreement (Distributed Energy Systems Corp)
Employment Matters. (a) During For a period of one (1) year following the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing Sun Effective Time (or if earliershorter, during the date period of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiariesemployment), Parent shall, and or shall cause the Parent Subsidiaries (including the Sun Surviving Corporation and its Subsidiaries) to provide to each Parent Subsidiary, as applicable, to, provide each individual who is an employee of Sun and the Company or any Company Subsidiary Sun Subsidiaries as of immediately prior to the Company Merger Sun Effective Time and who remains continues to be employed by Parent or any and the Parent Subsidiary as of Subsidiaries (including the Company Merger Sun Surviving Corporation and its Subsidiaries) after the Sun Effective Time (each, a “Continuing Sun Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a at least the same annual base salary or base wage rate that is not less than the base salary or base wage rate rate, as applicable, as provided to such Continuing Sun Employee immediately prior to the ClosingSun Effective Time; provided, that, in the event there is a reduction in base salaries or wage rates that affect substantially all employees of Parent and its Subsidiaries (including the Sun Surviving Corporation and its Subsidiaries) after the Sun Effective Time, the annual base salary or wage rate of similarly situated Continuing Sun Employees may be commensurately reduced. In order to further an orderly transition and integration, and subject to applicable law, Sun, Trident and Parent shall cooperate in good faith in reviewing, evaluating and analyzing the Sun Benefit Plans and Trident Benefit Plans with a view towards developing appropriate new benefit plans, or selecting the Sun Benefit Plans or Trident Benefit Plans, as applicable, that will apply with respect to employees of Parent and the Parent Subsidiaries (including the Sun Surviving Corporation and its Subsidiaries) after the Sun Effective Time (collectively, the “New Benefit Plans”), which New Benefit Plans will, to the extent permitted by applicable law, and among other things, (i) treat similarly situated employees on a substantially equivalent basis, taking into account all relevant factors, including duties, geographic location, tenure, qualifications and abilities, and (ii) target annual or other short-term periodic cash incentive opportunities that are not less than discriminate between employees who were covered by Sun Benefit Plans, on the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Scheduleone hand, and (iii) those covered by Trident Benefit Plans, on the other compensation and employee benefits that are no less favorablehand, in at the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeSun Effective Time.
(b) From For purposes of eligibility, participation, vesting and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements benefit accrual (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
except (c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiaryi) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan or retiree medical plan, (ii) to the extent that such credit would result in a duplication of benefits, or (iii) under any plan that is grandfathered or frozen) under the Sun Benefit Plans, the Trident Benefit Plans and the New Benefit Plans, service with or credited by Trident and the Trident Subsidiaries or any of their respective predecessors to an employee of Trident and the Trident Subsidiaries as of immediately prior to the Trident Effective Time who continues to be employed by Parent and the Parent Subsidiaries (including the Trident Surviving Corporation and its Subsidiaries) after the Trident Effective Time (each, a “Continuing Trident Employee”) and service with or credited by Sun and the Sun Subsidiaries or any of their respective predecessors to a Continuing Sun Employee shall be treated as service with Parent to the same extent that such service was recognized taken into account under a similar plan, program, policy, agreement the analogous Sun Benefit Plan or arrangement of the Company or any Company Subsidiary, except that no such Trident Benefit Plan prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Programapplicable Effective Time.
(dc) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with With respect to each Company 2015 any Trident Benefit Plan, Sun Benefit Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option or New Benefit Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Sun Employee participates that provides health or welfare benefits Continuing Trident Employee first becomes eligible to participate on or after the applicable Effective Time, and in which such employees did not participate prior to the applicable Effective Time, Parent shall: (i) waive all limitations as to preexisting conditions, exclusions, exclusions and waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employeessuch employees and their eligible dependents, other than limitations applicable under the corresponding Company Employee Program or except to the extent that such preexisting condition limitationspre-existing conditions, exclusions, actively-at-work requirements and exclusions or waiting periods would not have been satisfied or waived apply immediately prior to the applicable Effective Time under the comparable Company Employee Program analogous Sun Benefit Plan or Trident Benefit Plan, as the case may be, and (ii) honor provide each such employee and his or her eligible dependents with credit for any paymentsco-payments and deductibles paid prior to the applicable Effective Time (or, charges and expenses of Continuing Employees if later, prior to the time such employee commenced participation in the New Benefit Plan) under an analogous Sun Benefit Plan or Trident Benefit Plan (and their eligible dependentsto the same extent that such credit was given under such analogous Sun Benefit Plan or Trident Benefit Plan) that were applied toward the in satisfying any applicable deductible and or out-of-pocket maximums requirements under the corresponding Company Employee Program in satisfying any applicable deductiblesTrident Benefit Plan, out-of-pocket maximums Sun Benefit Plan or co-payments under a corresponding Parent Employee Program during the calendar year New Benefit Plan in which such employee first become eligible to participate after the Closing occursapplicable Effective Time.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(id) Nothing in this Section 7.8 5.3 shall (i) confer any rights upon any Personbe construed as an amendment or other modification of, including any Continuing Employee or former employee of the Company or the Company Subsidiariestermination of, any Trident Benefit Plan, Sun Benefit Plan or other than the Parties to this Agreement and their respective successors and permitted assignsemployee benefit plan or arrangement, (ii) constitute or create an employment agreement or create any limit the right in any Continuing Employee of Sun, Trident or any of their respective subsidiaries to amend, terminate or otherwise modify any Trident Benefit Plan, Sun Benefit Plan or other Person to any continued employment employee benefit plan or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiariesarrangement, (iii) constitute or be treated as an amendmentconstrued to create any third party beneficiary rights in any Continuing Sun Employee, modificationContinuing Trident Employee, adoption, suspension or termination of any Company Employee Program or any Parent Employee Programother current or former employee or service provider or any of their respective beneficiaries, or (iv) alter or be construed to limit the ability right of the Company, the Company Subsidiaries, Parent Sun or the Parent Sun Subsidiaries or Trident or the Trident Subsidiaries to amendterminate the employment of any Continuing Sun Employee, modify Continuing Trident Employee, or terminate any benefit planother employee or service provider, programin each case, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent in accordance with the terms of such plan, program, policy, agreement or arrangementapplicable law.
Appears in 2 contracts
Samples: Merger Agreement (3d Systems Corp), Merger Agreement (3d Systems Corp)
Employment Matters. (a) During Following the period commencing on the Closing and ending on the date that is twelve (12) months Effective Time through one year after the Closing (or if earlierEffective Time, and subject to the date provisions of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries)this Section 5.11, Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual to be provided to the individuals who is an employee of are actively employed by the Company or any Company Subsidiary and its subsidiaries immediately prior to the Company Merger Effective Time and who remains remain employed by Parent with the Surviving Corporation or any Parent Subsidiary as of its subsidiaries (and their dependents) after the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those the compensation and employee benefits provided to such Continuing Employee immediately prior similarly situated employees of Parent and its subsidiaries, including severance and bonus benefits provided by Parent to the Closing, similarly situated employees of Parent; provided, howeverthat, that no post-retirement medicaleach such employee shall receive credit for vesting and eligibility purposes only under Parent’s plans (including Parent’s severance policy and 2008 bonus plan) with respect to all years of service for which such employee was credited before the Effective Time under any comparable Benefit Plan of the Company. For purposes of clarity, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing an employee receiving such credit shall be taken into account eligible for purposes a bonus in respect of the full 2008 calendar year under Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee2008 bonus plan.
(b) From and after As of or prior to the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shallshall pay amounts earned, and shall cause the Parent Subsidiaries toif any, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefitsthe 2008 Executive Bonus Plan, or (ii) such service was not recognized under subject to the corresponding Company Employee Program.
(d) Without limiting the generality of terms thereof and which plan is attached hereto as Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i5.11(b) of the Company Disclosure Schedule, which payments, if the calendar year 2008 has not completed prior to the Effective Time, shall be made proportionately based upon the number of days that have elapsed from the beginning of the calendar year 2008 until the Effective Time divided by 366 and may be made only to (A) the individuals who are terminated by the Company at or prior to the Effective Time and (B) who are not Eligible Bonus Program Officers, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award quarterly and Option Plan as in effect annual sales bonus program, the terms of which are described on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii5.11(b) of the Company Disclosure Schedule, which (A) no later than five (5) Business Days following for each completed quarterly period prior to the Company Merger Effective Time, without interest full quarterly payments shall be made in accordance with the Company’s past practices, (B) for any partially completed quarterly period prior to the Effective Time, proportionate payments shall be made based upon the number of days that have elapsed from the beginning of such quarterly period divided by the total number of days in such quarterly period and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights (C) with respect to annual payments, if the calendar year 2008 has not completed prior to the Effective Time, such payments shall be made proportionately based upon the number of days that have elapsed from the beginning of the calendar year 2008 until the Effective Time divided by 366, and in each such Company 2015 Plan Restricted Share.
(e) Parent case not to exceed the individual and the Company shall take the actions described in aggregate amounts set forth on Section 7.8(e5.11(b) of the Company Disclosure Schedule. All bonus payments described in clauses (i) and (ii) of this Section 5.11(b) are referred to in this Agreement collectively as the “Bonus Payments.”
(c) Immediately prior to the Effective Time, the Company shall terminate the employment of the employees set forth on Section 5.11(c) of the Company Disclosure Schedule, to the extent such employees continue to be employed immediately prior to the Effective Time. In addition, at least fifteen days prior to the Effective Time, Parent shall notify the Company in writing as to which other employees of the Company the Company should terminate immediately prior to the Effective Time, to the extent such employees continue to be employed immediately prior to the Effective Time. Immediately prior to the Effective Time, the Company shall pay all amounts due and payable to such employees (and to those terminated employees as set forth in the next succeeding sentence) pursuant to the employment agreements identified on Section 5.11(c) of the Company Disclosure Schedule between the Company and such employees and, if no such employment agreement applies, the employee severance plan attached hereto as Section 5.11(c) of the Company Disclosure Schedule (the “Severance Policy”). For purposes of this Section 5.11(c), an individual will be deemed terminated by the Company immediately prior to the Effective Time and eligible under the Severance Policy if (i) such individual is employed by the Company and its subsidiaries immediately prior to the Effective Time, (ii) such individual’s primary place of business is required to move outside the state of Utah, and (iii) such individual terminates his or her employment by declining to continue in such position.
(fd) Parent Prior to the Effective Time, the Company shall use, and shall cause the Parent Subsidiaries to use, use commercially reasonable efforts to cause each Parent Employee employment agreement with an Eligible Bonus Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shallOfficer and, to the extent not prohibited by applicable Lawapplicable, (i) provide Parent with each Benefit Plan, in each case, to be amended in a copy of the intended communication, (ii) give Parent a reasonable period of time form satisfactory to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shallParent, and agree in order to cause their applicable Affiliates to, cooperate with implement each other to accomplish of the matters addressed by this described on Section 7.8.
(i5.11(d) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or Disclosure Schedule prior to the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementEffective Time.
Appears in 2 contracts
Samples: Merger Agreement (Bard C R Inc /Nj/), Merger Agreement (Specialized Health Products International Inc)
Employment Matters. (a) During the period commencing on From the Closing and ending on until the date that is twelve (12) months after the one-year anniversary of Closing (or if earlier, until the date of the Continuing Employee’s earlier termination of employment with Parent and of the Parent Subsidiariesapplicable Company Employee), Parent shall, and or shall cause each Parent Subsidiary, as applicable, the Surviving Corporation or its Affiliates to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with : (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not of pay no less favorable than the each such Company Employee’s base salary or base wage rate of pay provided to such Continuing Company Employee immediately prior to the Closing, ; (ii) target annual or other shortcash compensation opportunities (excluding any long-term periodic cash incentive opportunities that are not compensation opportunity) no less favorable than the each such Company Employee’s target annual cash compensation opportunities in effect immediately prior to the Closing; and (iii) employee benefits substantially comparable in the aggregate to such benefits provided to such Company Employee immediately prior to the Closing (including severance payments and severance benefits, but excluding defined benefit pension, nonqualified deferred compensation, retiree health or other shortwelfare benefits, equity or equity based compensation, and long-term periodic cash incentive opportunities compensation); provided, that, in no event will Parent be required to provide, or to cause the Surviving Corporation or its Affiliates to provide, any employee benefits which are greater than those provided to its similarly situated employees of Parent, the Surviving Corporation or its Affiliates, as applicable. Notwithstanding anything in the foregoing to the contrary, if any Company Employee terminates employment on or prior to the one-year anniversary of Closing as a result of a Qualifying Termination (as defined in the DJO Global Severance Pay Plan, such Company Employee shall be entitled to (and Parent shall cause the Surviving Corporation and/or its Affiliates to provide) the severance benefits as set forth on Section 7.8(a6.2(a) of the Company Disclosure ScheduleSchedule (the “Company Severance Plan”), subject to the terms and conditions set forth in the Company Severance Plan and the applicable Company Employee’s timely execution and non-revocation of a general release of claims in a form to be approved by Parent; provided, that any severance payment or benefit under the Company Severance Plan shall be determined (A) without regard to the requirement set forth in Section 4 of the DJO Global Severance Play Plan providing that employees must be employed for one year or more with the Company to be eligible to receive any severance; and (B) taking into account such Company Employee’s additional service time with Parent, the Surviving Corporation or their respective Affiliates after the Closing. Parent shall, or shall cause the Surviving Corporation and its Affiliates to, maintain the Company Severance Plan without any amendment, modification or alteration thereto until the date that is the one-year anniversary of Closing.
(b) Parent shall, or shall cause the Surviving Corporation or its Affiliates, as applicable, to give Company Employees credit for such Company Employees’ service with the Company and its Affiliates for purposes of eligibility, vesting, and (iii) other compensation determination of the level of vacation, disability and employee severance benefits that are no less favorable, in to the aggregate, than those provided to such Continuing Employee same extent and for the same purpose as recognized by the Company immediately prior to the Closing, under the corresponding benefit plans made available to employees or officers or any class or level of employees or officers of Parent or any of its Affiliates in which a Company Employee participates; provided, however, that no post-retirement medical, equity-based compensation, deferred compensationsuch service shall not be recognized (i) for any purposes with respect to any defined benefit pension plans, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior (ii) to the Closing shall be taken into account for purposes extent that such recognition would result in a duplication of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance benefits with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior respect to the Company Merger Effective Timesame period of service.
(c) Parent shall, and or shall cause the Parent Subsidiaries toSurviving Corporation or its Affiliates, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibilityapplicable, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, use commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all any preexisting condition limitations as otherwise applicable to preexisting conditionsCompany Employees and their eligible dependents under any plan of Parent or any of its Affiliates that provides health benefits in which Company Employees may be eligible to participate following the Closing, exclusions, waiting periods and service conditions to the extent waived or satisfied with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable such employees as of the Closing under the corresponding analogous Company Employee Program or to the extent that such preexisting condition limitationsBenefit Plan, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any paymentsdeductible, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible co-payment and out-of-pocket maximums incurred by Company Employees and their eligible dependents under the corresponding Company Employee Program health plans in which they participated immediately prior to the Closing during the portion of the calendar year prior to the Closing in satisfying any applicable the corresponding deductibles, co-payments or out-of-pocket maximums under health plans of Parent or any of its Affiliates in which they are eligible to participate after the Closing in the same plan year in which such deductibles, co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broador out-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication of-pocket maximums were incurred and (iii) consider waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Company Employee and his or her eligible dependents on or after the Closing, in each case to the extent such comments in good faithCompany Employee or eligible dependent had satisfied any similar limitation or requirement under an analogous Company Benefit Plan prior to the Closing.
(hd) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, The parties hereto acknowledge and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by that all provisions contained in this Section 7.8.
6.2 with respect to Company Employees are included for the sole benefit of the respective parties hereto and shall not create any right (i) in any other person, including any Company Employees or other employees, former employees, any participant or any beneficiary thereof in any Company Benefit Plan or any benefit plan of Parent or its Affiliates, or (ii) to continued employment or any particular term or condition of employment with the Company, Parent or any of their respective Affiliates. Nothing contained in this Section 7.8 6.2 shall (i) confer be construed to establish, amend, or modify any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee Benefit Plan or any other Person to any continued employment benefit or service compensation plan, program, agreement or arrangement. After the Effective Time, nothing contained in this Section 6.2 shall interfere with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability right of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries any of their respective Affiliates to amend, modify or terminate any Company Benefit Plan or any benefit planplan of Parent or its Affiliates (subject, programin each case, policyto the provisions of Section 6.2(a) and Section 6.2(b) above as between the parties hereto) or to terminate the employment of any Company Employee for any reason.
(e) Prior to the Closing Date, agreement the Company shall (i) seek from each person who has a right to any payments and/or benefits as a result of or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent in connection with the terms transactions contemplated herein that would be deemed to constitute “parachute payments” (within the meaning of Section 280G of the Code and the regulations promulgated thereunder) a waiver of such planperson’s rights to some or all of such payments and/or benefits (the “Waived 280G Benefits”) applicable to such person so that all remaining payments and/or benefits applicable to such person shall not be deemed to be “excess parachute payments” that would not be deductible under Section 280G of the Code and (ii) seek the approval of its stockholders who are entitled to vote in a manner that complies with Section 280G(b)(5)(B) of the Code and Treasury Regulation Section 1.280G-1, programwhich shall include adequate written disclosure to all stockholders who are entitled to vote prior to such vote, policyof any such Waived 280G Benefits. As soon as practicable following the date hereof, agreement the Company shall forward to Parent the parachute payment calculations prepared by the Company and/or its advisors. Additionally, at least seven (7) Business Days prior to obtaining the Section 280G waivers, and prior to seeking such stockholder approval, the Company shall provide drafts of such waivers and such stockholder approval materials to Parent for its review and comment. Prior to the Closing Date, the Company shall deliver to Parent evidence that a vote of the Company’s stockholders who are entitled to vote was solicited in accordance with the foregoing provisions of this Section 6.2(e) and that either (1) the requisite number of stockholder votes was obtained with respect to the Waived 280G Benefits (the “280G Approval”), or arrangement(2) the 280G Approval was not obtained.
Appears in 2 contracts
Samples: Merger Agreement (Colfax CORP), Merger Agreement (DJO Finance LLC)
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided At all times prior to the Closing Date, the Seller shall be taken into account for purposes provide the Buyer with all information requested by the Buyer about the employees that were engaged in the development, use, operation or maintenance of Parent’s obligations under this Section 7.8(a). For the avoidance Assets of doubt, nothing in this Agreement shall require Parent the Seller or any Parent Subsidiary Purchased Subsidiaries in order for the Buyer to employ decide to whom it will offer employment. The Buyer shall not have any PersonLiability or responsibility for, nor and the Seller shall it alter have sole Liability and responsibility for, any and all severance pay and other termination obligations for the at-will employment status Seller's current or former employees, consultants or independent contractors regardless of any Continuing Employeewhether such individuals provide services to the Buyer.
(b) From It shall be the Seller's sole responsibility to provide the required notices under Part 6 of Title I of ERISA (“COBRA”) to all eligible employees and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to former employees of the Company Seller and its Affiliates and to provide or cause to be provided coverage under COBRA to employees and former employees of the Seller and its Affiliates, and the Seller shall be responsible for all obligations and liabilities relating to or arising under COBRA continuation coverage requirements for any Company Subsidiary such employee. The Seller shall indemnify, defend and in effect immediately prior hold the Buyer harmless from and against any and all Liabilities, losses, claims, demands, costs expenses (including, without limitation, actual attorneys' fees, expenses and costs) and any other Liability whatsoever that the Buyer may incur if the Seller fails to provide the Company Merger Effective Timerequired COBRA continuation coverage to its employees and former employees.
(c) Parent shall, and The Seller shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication considered to be the “employer” for any triggering events arising out of benefits, or (ii) such service was not recognized this Agreement under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communicationWARN Act, (ii) give Parent a reasonable period of time to review solely and comment on exclusively responsible for all liabilities and obligations under the communication WARN Act and (iii) consider solely and exclusively responsible for providing all notices required under the WARN Act. The Seller shall indemnify, defend and hold the Buyer harmless from and against any such comments in good faith.
and all Liabilities, losses, claims, demands, costs, expenses (hincluding without limitation actual attorneys' fees, expenses and costs) During and any other Liability whatsoever arising out of or resulting from the Interim Period, Seller's breach of the Parent Parties foregoing covenants and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8obligations.
(i) Nothing in this Section 7.8 herein is intended to, and shall not be construed to, create any Third Party beneficiary rights of any kind or nature, including, without limitation, the right of any individual to seek to enforce any right to compensation, benefits or any other right or privilege of employment with the Seller or the Buyer.
(iii) confer The Seller shall provide to the Buyer upon request all documentation with respect to any rights upon any Person, including any Continuing Employee current or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee Seller or any other Person Purchased Subsidiary who is hired by the Buyer necessary to any continued employment or service with or for, or enable the Buyer to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries fulfill its statutory obligations pursuant to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement8 C.F.R. Section 274a.2(b)(1)(viii)(A)(7)(ii).
Appears in 2 contracts
Samples: Stock Purchase Agreement (NMI Holdings, Inc.), Stock Purchase Agreement (NMI Holdings, Inc.)
Employment Matters. (a) During Effective as of the period commencing on Effective Time until the earlier of (i) the first anniversary of the Closing Date and ending on the date that is twelve (12ii) months after the Closing (or if earlierDecember 31, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries)2016, Parent shallshall provide, and or shall cause each the Surviving Corporation to provide to Company Employees who continue to be employed by Parent Subsidiary, as applicable, to, provide each individual who is an employee of or the Company Surviving Corporation or any Company Subsidiary immediately prior to of their respective Subsidiaries following the Company Merger Effective Time and who (the “Continuing Company Employees”) for so long as the applicable Continuing Company Employee remains employed by Parent or the Surviving Corporation, compensation and benefits (excluding any equity or equity-based plan, program or arrangement), that are substantially comparable in the aggregate to the compensation and benefits (excluding any equity or equity-based plan, program or arrangement) paid and provided to similarly situated employees of Parent Subsidiary and Subsidiaries of Parent (other than the Company and the Company Subsidiaries); provided, that for purposes of the foregoing sentence the employee benefit plans generally provided to Company Employees as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the ClosingEffective Time shall be deemed to be substantially comparable, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedulean aggregate basis, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than to those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account similarly situated employees of Parent and its Subsidiaries for purposes of this sentence, it being understood that the Company Employees may commence participation in Parent’s obligations under this Section 7.8(a). For benefit plans on different dates following the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary Effective Time with respect to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeedifferent benefit plans.
(b) From and after Following the Company Merger Effective TimeClosing Date, Parent shall, and or shall cause the Surviving Corporation to, cause any employee benefit plans sponsored or maintained by Parent or the Surviving Corporation or their Subsidiaries in which the Continuing Company Employees are eligible to participate following the Closing Date (collectively, the “Post-Closing Plans”) to recognize the service of each Parent Subsidiary, as applicable, to honor, in accordance Continuing Company Employee with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) Closing Date for purposes of eligibility, vesting and levels of benefits under such Post-Closing Plans, in each case, to the same extent such service was recognized immediately prior to the Effective Time under a comparable Company Employee Plan in which such Continuing Company Employee was eligible to participate immediately prior to the Effective Time; provided that such recognition of service shall not (i) apply for purposes of any plan that provides retiree welfare benefits, (ii) apply for purposes of benefit level accruals or participation eligibility under any defined benefit pension plan or plan providing post-retirement pension plan benefits, (iii) operate to duplicate any benefits of a Continuing Company Employee with respect to the same period of service, and (iv) apply for purposes of any plan, program or arrangement (x) under which similarly situated employees of Parent and its Subsidiaries do not receive credit for prior service or (y) that is grandfathered or frozen, either with respect to level of benefits or participation. With respect to any Post-Closing Plan that provides medical, dental or vision insurance benefits, for the plan year in which such Continuing Company Employee is first eligible to participate, Parent shall use commercially reasonable efforts to (A) cause any pre-existing condition limitations or eligibility waiting periods under such plan to be waived with respect to such Continuing Company Employee to the extent such limitation would have been waived or satisfied under the Company Employee Plan in which such Continuing Company Employee participated immediately prior to the Effective Time, and (B) credit each Continuing Company Employee for an amount equal to any medical, dental or vision expenses incurred by such Continuing Company Employee in the year that includes the Closing Date (or, if later, the year in which such Continuing Company Employee is first eligible to participate in such Post-Closing Plan) for purposes of any applicable deductible and annual out-of-pocket expense requirements under any such Post-Closing Plan to the extent such expenses would have been credited under the Company Employee Plan in which such Company Employee participated immediately prior to the Effective Time, subject to the applicable information being provided to Parent in a form that Parent reasonably determines is administratively feasible to take into account under its plans. Such credited expenses shall also count toward any annual or lifetime limits, treatment or visit limits or similar limitations that apply under the terms of the applicable plan.
(c) From and after the Closing Date, each Continuing Company Employee, may use, in accordance with the vacation policy of Parent or the Surviving Corporation as in effect from time to time, and shall be credited with the number of vacation days of such Continuing Company Employee that accrued but were not yet used or cashed out as of the Closing Date under the Company’s vacation policy as in effect immediately prior to the Closing Date.
(d) With respect to a Continuing Company Employee who is a party to a severance agreement set forth in Section 6.16(d) of the Company Disclosure Schedules, in the event such Continuing Company Employee’s employment is terminated (other than for cause) by Parent or the Surviving Corporation during the one year period immediately following the Closing Date, Parent agrees to provide such Continuing Company Employee with severance benefits (taking into account for such purpose such Continuing Company Employee’s service and compensation with the Company prior to the Closing Date and any additional service and compensation with Parent from and after the Closing Date) that are no less favorable than those to which such Continuing Company Employee is entitled under the terms and conditions of such severance agreement.
(e) If requested by Parent in writing delivered to the Company not less than ten (10) Business Days before the Closing Date, the Company Board (or the appropriate committee thereof) shall adopt resolutions and take such corporate action as is necessary to terminate the Company’s 401(k) plan (the “Company 401(k) Plan”), effective as of the day prior to the Closing Date. Following the Effective Time and as soon as practicable following receipt of a favorable determination letter from the IRS on the termination of the Company 401(k) Plan, the assets thereof shall be distributed to the participants, and Parent shall, to the extent permitted by Parent’s applicable 401(k) plan (the “Parent 401(k) Plan”), permit the Continuing Company Employees who are then actively employed to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code, exclusive of loans), in the form of cash, in an amount equal to the full account balance (excluding loans) distributed to such Company Employee from the Company 401(k) Plan to the Parent 401(k) Plan; provided, however, that Parent agrees to use commercially reasonable efforts to amend, or cause to be amended, the Parent 401(k) Plan to accept a rollover of outstanding loans from the Company 401(k) Plan. If the amendment to the Parent 401(k) Plan described in the immediately preceding sentence is obtained, any rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code) by a Continuing Company Employee to the Parent 401(k) Plan described in the immediately preceding sentence shall be in an amount equal to the full account balance (including loans) distributed to such Company Employee from the Company 401(k) Plan.
(f) Nothing in this Agreement shall confer upon any Company Employee or other service provider any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any of their Affiliates, which rights are hereby expressly reserved, to discharge or terminate the services of any Company Employee at any time for any reason whatsoever, with or without cause. In no event shall the terms of this Agreement be deemed to (i) establish, amend, or modify any Company Employee Plan or any “employee vacationbenefit plan” as defined in Section 3(3) of ERISA, severance or paid time off any other benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of maintained or sponsored by Parent, the Surviving Corporation, the Company or any Company Subsidiaryof their Subsidiaries (including, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which after the Closing occurs.
(g) Prior to making any broad-basedDate, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(iSubsidiaries) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company Affiliates; or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of Parent, the CompanySurviving Corporation or any of their Subsidiaries (including, after the Closing Date, Company and the Company Subsidiaries, Parent ) or the Parent Subsidiaries Affiliates to amend, modify or terminate any Company Employee Plan or any other compensation or benefit or employment plan, program, policy, agreement or arrangement at after the Closing Date. Notwithstanding any time assumedprovision in this Agreement to the contrary, established, sponsored nothing in this Section 6.16 shall create any third party beneficiary rights in any Company Employee or maintained by current or former service provider of the Company or its Affiliates (or any of them, consistent with the terms of such plan, program, policy, agreement beneficiaries or arrangementdependents thereof).
Appears in 2 contracts
Samples: Merger Agreement (Endurance International Group Holdings, Inc.), Merger Agreement (Constant Contact, Inc.)
Employment Matters. (a) During For the period commencing beginning on the Closing Date and ending on the date that is twelve December 31, 2022, Buyer will provide (12) months or cause an Affiliate of Buyer, including after the Closing (or if earlierClosing, the date of ACFP Companies to provide): (i) each ACFP Continuing Executive and ACFP Continuing Officer with annual base salary or wages and incentive compensation opportunities that are no less than the annual base salary, wages and incentive compensation opportunities, respectively, provided to such ACFP Continuing Officer immediately prior to the Closing Date, (ii) each ACFP Continuing Executive, ACFP Continuing Officer and each Continuing Employee with employee benefits (including, solely with respect to the ACFP Continuing Executives and the ACFP Continuing Officers, severance benefits) that are not less favorable to such ACFP Continuing Executive, ACFP Continuing Officer or Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, tothan the most favorable of (A) those benefits provided to such ACFP Continuing Officer or Continuing Employee, provide each individual who is an employee of the Company or any Company Subsidiary as applicable, immediately prior to the Closing Date and (B) those benefits that Buyer provides to its similarly situated employees during such period.
(b) Buyer shall use its commercially reasonable efforts to enter into an amended and restated employment agreement with each of the ACFP Continuing Executives so that each such ACFP Continuing Executive’s Existing Employment Agreement would be subject to a term expiring on December 31, 2022.
(c) From and after the Closing, Buyer shall give or cause to be given to each Continuing Employee, each ACFP Continuing Executive and each ACFP Continuing Officer full credit for all purposes (including for purposes of eligibility to participate or receive benefits, vesting, benefit accrual, level of benefits and early retirement subsidies and including for purposes of severance, vacation/paid time off and similar benefits and for any purposes as may be required under applicable Law), other than for benefit accrual purposes under any defined benefit pension plan, or for purposes of any equity, deferred compensation or long term incentive plan, under each employee benefit plan, program or arrangement established or maintained by Buyer under which such Continuing Employees, ACFP Continuing Executives and ACFP Continuing Officers are eligible to participate on or after the Closing for service accrued or deemed accrued on or prior to the Closing with an ACFP Company Merger Effective Time to the same extent that such credit was recognized by Seller under comparable Benefit Plans immediately prior to the Closing; provided, however, that such credit need not be provided to the extent that such credit would result in any duplication of benefits for the same period of service. In addition, Buyer shall use commercially reasonable efforts to (i) cause to be waived all pre-existing condition exclusions and who remains employed actively at work requirements, eligibility waiting periods and evidence of insurability requirements under any benefit or compensation plan, program, agreement or arrangement maintained by Parent Buyer or the ACFP Companies or any Parent Subsidiary as of their Affiliates for the Company Merger Effective Time benefit of Continuing Employees, ACFP Continuing Executives and ACFP Continuing Officers on or after the Closing Date (each, a “Continuing Employee” and collectively, the “Continuing EmployeesNew Plan”) with (i) except as otherwise mutually agreed between Parent and such to the extent waived or satisfied by any Continuing Employee, a base salary ACFP Continuing Executive, ACFP Continuing Officer or base wage rate that is not less than any covered dependent thereof, as of the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, Closing Date under an analogous Benefit Plan and (ii) target annual cause any deductible, co-insurance and covered out-of-pocket expenses paid on or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to before the Closing shall Date by any Continuing Employee, ACFP Continuing Executive, ACFP Continuing Officer or any covered dependent thereof, to be taken into account for purposes of Parent’s obligations satisfying the corresponding deductible, coinsurance and maximum out of pocket provisions after the Closing Date under this Section 7.8(aany applicable New Plan in the plan year in which the Closing Date occurs (to the same extent as such expenses would have been taken into account under the analogous Benefit Plan prior to the Closing). For the avoidance of doubt, this Section 5.05(c) does not apply to a Continuing Employee’s annual base salary, wages, layoff or any other incentive compensation opportunities and neither Buyer nor any Affiliate of Buyer shall have any restrictions related thereto as a result of this Section 5.05(c).
(d) The provisions contained in this Section 5.05 are included for the sole benefit of the Parties and shall not create any rights or remedies (including any third party beneficiary right) in any Person that is not a Party, including any employee or any participant in any Benefit Plan (or any dependent or beneficiary thereof). Without limiting the requirements of the foregoing, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time construed so as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementBenefit Plan.
Appears in 2 contracts
Samples: Stock Purchase Agreement (BurgerFi International, Inc.), Stock Purchase Agreement (BurgerFi International, Inc.)
Employment Matters. (a) During the For a period commencing beginning on the Closing Effective Time and ending on the date that is twelve (12) months after first anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Effective Time or if earliersuch longer period required by applicable Law) (the “Continuation Period”), the date of Parent Entities shall provide, or shall cause the Continuing Employee’s termination of employment with Parent Surviving Entities and the Parent Subsidiaries)Company Subsidiaries to provide, Parent shall, and shall cause to each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to Company, the Company Merger Effective Time Surviving Entities, and who remains employed by Parent or any Parent Subsidiary as each of the Company Merger Effective Time Subsidiaries (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with with: (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a the same or greater base salary or base wage rate that is not less than the base salary or base wage rate provided to (as applicable) as in effect for such Continuing Employee immediately prior to the Closing, ; (ii) target annual or other short-term periodic cash incentive compensation opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, favorable than those provided to in effect for such Continuing Employee immediately prior to the Closing; and (iii) other employee benefits (including vacation and sick or other paid leave, provided, however, that no post-retirement medicalbut excluding any equity, equity-based compensationbased, long-term incentive, deferred compensation, change in control, retention or retentiontransaction-related benefits related to the transactions contemplated by this Agreement, changeor, other than as required by applicable Law or Collective Bargaining Agreement, defined benefit pension and post-in-control or other special or non-recurring compensation or retirement welfare arrangements) that are no less favorable in the aggregate to such benefits provided to such Continuing Employees and their covered dependents under the Company Plans immediately prior to the Closing Closing.
(b) Continuing Employees shall receive credit for all years of service and level of seniority with the Company and the Company Subsidiaries and their respective predecessors under any employee benefit plan of the Parent Entities, the Surviving Entities, or any of their Subsidiaries for all purposes under any employee benefit plan, program or arrangement established or maintained by the Parent Entities, the Surviving Entities or any of their respective Subsidiaries under which any Continuing Employee may be taken into account for purposes eligible to participate on or after the Effective Time to the same extent recognized by the Company Entities or any of Parent’s obligations the Company Subsidiaries under this Section 7.8(a)comparable Company Plans immediately prior to the Effective Time. For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company vacation and the Company Subsidiaries (sick time accruals, as well as service with any predecessor employer of the Effective Time, shall carry over to the applicable Parent Entity, the Surviving Company or any Company Subsidiaryof their respective Subsidiaries. Notwithstanding the foregoing, nothing in this Section 7.18 shall be construed to require crediting of service that would result in (i) duplication of benefits for purposes the same period of eligibility, vesting and service or (ii) service credit for benefit level accruals under any employee vacation, severance or paid time off a defined benefit pension plan, program, policy, agreement or arrangement, retiree welfare plan or any retirement grandfathered or savings planfrozen benefit plan of the applicable Parent Entity. With respect to the welfare benefit plans, maintained programs and arrangements maintained, sponsored or contributed to by Parent and the Parent Subsidiaries Entities or the Surviving Entities (each, a “Parent Welfare Benefit Plan”) in which such a Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to on or after the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of applicable Parent Entity and the holder thereof Surviving Entities shall use commercially reasonable efforts to any payment in respect of (A) waive, or cause the Change in Control Price (insurance carrier to waive, all limitations as defined in the Company’s 2015 Award to pre-existing and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Mergerat-work conditions, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to each Continuing Employees, other than limitations applicable Employee and any covered dependent under the corresponding Company Employee Program or any Parent Welfare Benefit Plan to the same extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the a comparable Company Employee Program Plan and (iiB) honor provide credit to each Continuing Employee and any covered dependent for any co-payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible deductibles and out-of-pocket maximums expenses paid by such Continuing Employee or covered dependent under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program Welfare Benefit Plans during the calendar relevant plan year of such Parent Welfare Benefit Plan in which the Closing Effective Time occurs.
(gc) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing The provisions contained in this Section 7.8 7.18 are included for the sole benefit of the parties hereto, and nothing in this Section 7.18, whether express or implied, shall (i) confer create any third party beneficiary or other rights upon in any Personother person, including any Continuing Employee employee, former employee, any participant in any Company Plan, employee benefit plans, programs and arrangements maintained, sponsored or former employee of contributed to by the Parent Entities or the Surviving Entities or other benefit plan or arrangement, or any dependent or beneficiary thereof, or any right to continued employment with the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the CompanyEntities, the Company Subsidiaries, Parent or the Parent SubsidiariesEntities, (iii) constitute the Surviving Entities or any of their respective Affiliates. Nothing contained herein, whether express or implied, shall be treated as an amendment, modification, adoption, suspension (i) establishing or termination of amending any Company Employee Program Plan or any employee benefit plan programs and arrangements maintained, sponsored or contributed to by the Parent Employee ProgramEntities or the Surviving Entities or other employee benefit plan or arrangement, or (ivii) alter or limit restricting in any way the ability right of the CompanyCompany Entities, the Company Subsidiaries, Parent or the Parent Subsidiaries Entities, the Surviving Entities or any of their respective Affiliates to amend, terminate or otherwise modify any Company Plan, or other employee benefit plan or arrangement in accordance with its terms, (iii) preventing or restricting in any way the right of the Company Entities, the Parent Entities, the Surviving Entities or any of their respective Affiliates to terminate the of service of any benefit planemployee, programofficer, policydirector, agreement manager or consultant of the Company and its Subsidiaries at any time; or (iv) obligating the Parent Entities, the Surviving Entities or any of their respective Affiliates to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time assumed, established, sponsored or maintained by prevent the Parent Entities or any of them, consistent with the terms of their Affiliates from modifying or terminating any such plan, program, policy, agreement program or arrangementother compensatory or benefits arrangement at any time.
Appears in 2 contracts
Samples: Merger Agreement (Endeavor Group Holdings, Inc.), Merger Agreement (Emanuel Ariel)
Employment Matters. (a) During Schedule 3.24(a) sets forth, (i) with respect to each Key Executive Employee and Key Employee: (A) the period commencing on the Closing name of such Employee and ending on the date that is twelve (12) months after the Closing (or if earlier, the date as of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of which such Employee was originally hired by the Company or any Company Subsidiary immediately prior to of the Company Merger Effective Time Subsidiaries, and who remains employed by Parent whether the Employee is on an active or any Parent Subsidiary inactive status; (B) such Employee’s title and job function; (C) such Employee’s annualized compensation as of the Company Merger Effective Time date of this Agreement, including base salary and bonus and/or commission paid in 2010 and 2011, severance pay accrual and potential, and any other forms of compensation whether accrued or potential; (eachD) whether such Employee is not fully available to perform the essential functions of his or her job with reasonable accommodation because of a qualified disability, a “Continuing Employee” and collectivelyor because of other leave and, if applicable, the “Continuing Employees”) with type of leave (i) except as otherwise mutually agreed between Parent and such Continuing Employeee.g., a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closingdisability, (ii) target annual workers compensation, family or other short-term periodic cash incentive opportunities that are not less than leave protected by applicable Law) and the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(aanticipated xxxx of return to full service; (E) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to whether such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of is employed by the Company or any Company Subsidiary and in effect immediately prior to one of the Company Merger Effective Time.
(c) Parent shallSubsidiaries, and shall cause if by a Subsidiary, the Parent Subsidiaries to, provide credit for each Continuing Employee’s length name of service with the Company and the Company Subsidiaries Subsidiary; (as well as service with any predecessor employer of F) the Company or any Company SubsidiarySubsidiary facility at which such Employee is deemed to be located; (G) for purposes of eligibility, vesting and each current benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries plan in which such Continuing Employee participates or is eligible to participate participate; and (but not for purposes of H) any benefit accrual under governmental authorization, permit or license that is held by such Employee and that is used in connection with the Company’s or any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure ScheduleSubsidiaries’ business, and (ii) with respect to each Key Executive Employee and Key Employee, whether such Employee has executed a nondisclosure and noncompetition agreement.
(b) Schedule 3.24(b) contains a list of individuals who (i) are currently performing services for the Company 2015 Plan Restricted Share that or any of the Subsidiaries, (ii) are classified as “consultants” or “contract labor” or “independent contractors,” the respective compensation of each such “consultant” or “contract laborer” or “independent contractor” and whether the Company or any Subsidiary is issued and outstanding party to a consulting or contract labor or independent contractor agreement with the individual, (iii) on average during the six-month period ending as of immediately prior the end of the last full calendar month rendered more than twenty (20) hours of service per week to the Company Merger Effective Time and the Subsidiaries, (iv) are not rendering such services as a partner, member or employee of a third party service provider that is properly treated as an independent contractor under Treasury Regulations § 1.409A-l(f)(2), and (v) who was paid in calendar year 2010 or is reasonably expected to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Timebe paid in calendar year 2011 more than $50,000. Any such agreements are set forth on Schedule 3.24(b). For clarification purposes, the right of the holder thereof to any payment in respect of the Change in Control Price Schedule 3.24(b) does not list individuals (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreementor agreements for individuals) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the are employees of the Company or any of the Subsidiaries.
(c) Each Employment Agreement is set forth on Schedule 3.16(a)(ii). Except as set forth on Schedule 3.24(c), the employment of each of the current Key Executive Employees and Key Employees is terminable by the Company Subsidiary at will (except for non-United States Employees of the Company or any of the Subsidiaries located in a jurisdiction that does not recognize the “at-will” employment concept, provided that each such jurisdiction and the affected Employees are set forth on Schedule 3.24(c)(i)), and neither the Company nor any of the Subsidiaries has any obligation to provide any particular form or period of notice prior to terminating the employment of any of its current Employees.
(d) Except as set forth on Schedule 3.24(d), neither the Company nor any of the Subsidiaries is presently a party to or bound by any union contract or agreement, collective bargaining agreement or similar agreement. To the Company’s knowledge, there are no activities or proceedings of any labor union to organize any Employees.
(e) Neither the Company nor any of the Subsidiaries is engaged in any unfair labor practice of any nature, that, if adversely determined, would reasonably be expected to have a Material Adverse Effect. There is not now pending and, to the Company’s knowledge, no Person has threatened to commence, any slowdown, work stoppage, labor dispute, union organizing activity or any similar activity or dispute.
(f) To the Company’s knowledge, the Employees are properly classified under the Fair Labor Standards Act of 1938, as amended, and under any similar Law of any state or other than jurisdiction applicable to such Employees. To the Company’s knowledge, any communications consistent in all material respects with prior communications made Persons engaged by the Company or Parent) pertaining any of the Subsidiaries as consultants or contract laborers or independent contractors, rather than Employees, have been properly classified as such, are not entitled to any compensation or benefits matters that to which regular, full-time Employees are affected by entitled, have been engaged in accordance with all applicable Laws, and have been treated accordingly and appropriately for all Tax purposes. To the transactions contemplated by this AgreementCompany’s knowledge, neither the Company shallnor any of the Subsidiaries is delinquent to, or has failed to the extent not prohibited by pay, any of its Employees, consultants or contractors for any wages (including overtime, meal breaks or waiting time penalties), salaries, commissions, accrued and unused vacation to which they would be entitled under applicable Law, if any, bonuses, benefits or other compensation for any services performed by them or amounts required to be reimbursed to such individuals. To the Company’s knowledge, neither the Company nor any of the Subsidiaries is liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for Employees (other than routine payments to be made in the normal course of business and consistent with past practice). To the Company’s knowledge, none of the Company or any of the Subsidiaries has any material liability, including under any Company Employee Plan, arising out of the treatment of any service provider as a consultant or independent contractor and not as an employee.
(g) Neither the Company nor any of the Subsidiaries has a written severance pay practice or policy. Except as set forth on Schedule 3.24(g) and except in the ordinary course of business consistent with past practices, (i) provide Parent with a copy neither the Company nor any of the intended communicationSubsidiaries is liable for any severance pay, bonus compensation, acceleration of payment or vesting of any equity interest, or other payments (other than accrued salary, vacation, or other paid time off in accordance with the Company’s and the Subsidiaries’ policies) to any Employee arising from the termination of employment under any benefit or severance policy, practice, agreement, plan, program of the Company or any of the Subsidiaries, applicable Law or otherwise; and (ii) give Parent as a reasonable period result of or in connection with the Transactions or as a result of the termination by the Company or any of the Subsidiaries of any Persons employed by the Company or any of the Subsidiaries on or prior to the Closing Date, the Company will not have (A) any liability that exists or arises under any of the Company’s or any of the Subsidiaries’ benefit or severance policy, practice, agreement, plan, program, Law applicable thereto, including severance pay, bonus compensation or similar payment, or (B) to accelerate the time to review and comment on of payment or vesting, or increase the communication and (iii) consider amount of or otherwise enhance any such comments in good faithbenefit due any Employee.
(h) During the Interim Period, the Parent Parties and the The Company and each of the Company Subsidiaries shallis in compliance, in all material respects, with all applicable Laws and agreements respecting employment, employment practices, employee benefits, terms and conditions of employment, immigration matters, labor matters, and agree wages and hours, in each case, with respect to cause their applicable Affiliates to, cooperate with each other its Employees and to accomplish the matters addressed by this Section 7.8Company’s knowledge there are no allegations to the contrary.
(i) Nothing in this Section 7.8 shall There are no material demands or claims pending or, to the Company’s knowledge, threatened, before any Governmental Entity by any Employees for compensation, pending severance benefits, vacation time, unpaid meal or rest breaks, vacation pay or pension benefits, or any other claim threatened or pending before any Governmental Entity (ior any state “referral agency”) confer from any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability arising out of the Company’s or any of the Subsidiaries’ status as employer or joint employer, whether in the form of claims for employment discrimination, harassment, retaliation, unfair labor practices, grievances, wrongful discharge, wage and hour violations, breach of contract, unfair business practice, tort, unfair competition or otherwise, in each case that would reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 324(i), there are no pending or, to the Company’s knowledge, threatened claims or actions against the Company Subsidiaries, Parent or any of the Parent Subsidiaries to amend, modify under any workers compensation policy or terminate any benefit plan, program, long-term disability policy, agreement or arrangement at nor to the knowledge of the Company is there any time assumed, established, sponsored or maintained by reasonable basis therefor. The Company and each of the Subsidiaries is in compliance with all applicable workers compensation Laws in all material respects.
(j) The Company and each of the Subsidiaries is in material compliance with Form I-9 employment eligibility verification requirements.
(k) Neither the Company nor any of themthe Subsidiaries has implemented any plant or office closing, consistent with the terms transfer of such plan, program, policy, agreement employees or arrangementlayoff of Employees that would reasonably be expected to be in violation of any applicable WARN or similar Laws.
Appears in 2 contracts
Samples: Recapitalization and Exchange Agreement, Recapitalization and Exchange Agreement (Installed Building Products, Inc.)
Employment Matters. (a) During the For a period commencing on of no less than one (1) year following the Closing and ending on the date that is twelve (12) months after the Closing (or if earlierDate, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent Newco shall, and or shall cause each Parent Subsidiary, as applicable, the Concrete Surviving Corporation and its Subsidiaries to, provide to each individual who is an employee of the Company and its Subsidiaries who continues in employment with the Concrete Surviving Corporation or any Company Subsidiary immediately prior to of their Subsidiaries following the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time Closing Date (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a at least the same base salary or base wage rate that is not less than rate, as applicable, and annual cash incentive opportunity (excluding, for the base salary avoidance of doubt, equity compensation, phantom equity compensation, and retention or base wage rate transaction bonuses), if any, as those provided to such Continuing Employee immediately prior to the Closing, Closing and (ii) target annual or provide other shortemployee benefits (including tax-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedulequalified retirement, health, welfare and severance, but excluding equity compensation, phantom equity compensation, and (iiiretention or transaction bonuses) other compensation and employee benefits that which are no less favorable, in the aggregate, than those provided to such the Continuing Employee Employees immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From For purposes of determining eligibility, vesting, participation and benefit accrual (other than for purposes of benefit accrual under any defined benefit pension, retiree health or welfare, deferred compensation or supplemental retirement plan) under Newco’s and its Subsidiaries’ plans and programs providing employee benefits to Continuing Employees after the Company Merger Effective Time, Parent shall, and Closing Date (the “Industrea Benefit Plans”). Newco shall (or shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees one of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent its Subsidiaries to, provide ) credit for each Continuing Employee’s length Employee with his or her years of service with the Company and the Company its Subsidiaries (as well as service with any predecessor employer of and their predecessors) prior to the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) Closing Date to the same extent that as such Continuing Employee was (or would have been) entitled, before the Closing Date, to credit for such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company SubsidiaryBenefit Plans, except that no such prior service credit will be required or provided to the extent that (i) it results providing such credit would result in a any duplication of benefits. In addition, Newco shall (or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent one of its Subsidiaries to use, to) use commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive each Continuing Employee to be immediately eligible to participate, without any waiting time, in any and all limitations as to preexisting conditionsIndustrea Benefit Plans, exclusions(ii) each Industrea Benefit Plan providing medical, waiting periods dental, hospital, pharmaceutical or vision benefits, all pre-existing condition exclusions and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements of such Industrea Benefit Plan to be waived for such Continuing Employee and waiting periods would not have been satisfied his or waived her covered dependents (except to the extent that such exclusions or requirements applied to the Continuing Employee under the comparable Company Employee Program Benefit Plans), and (iiiii) honor any co-payments, charges deductibles and other eligible expenses incurred by such Continuing Employee and/or his or her covered dependents during the plan year ending on the Closing Date to be credited for purposes of Continuing Employees (satisfying all deductible, coinsurance and their eligible dependents) that were applied toward the deductible and maximum out-of-pocket maximums requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year of each comparable Industrea Benefit Plan (to the extent such credit would have been given under comparable Company Benefit Plans prior to the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursClosing).
(gc) Prior to making any broad-based, written communications to This Section 7.3 is for the employees sole benefit of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreementparties hereto and shall not, the Company shall, to the extent and shall not prohibited by applicable Lawbe construed so as to, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider create any such comments third-party right in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assignsEmployee, (ii) constitute confer upon any Person the right to employment or create an continued employment agreement for any period of time, or create any right in any Continuing Employee or any other Person to any continued employment particular term or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiariescondition of employment, (iii) constitute an amendment or be treated as an amendment, modification, adoption, suspension or termination modification of any Company Employee Program or any Parent Employee Programemployee benefit plan, or (iv) alter or limit the ability of the Companyobligate Newco, the Company Subsidiaries, Parent or the Parent any of their respective Subsidiaries to amend, modify adopt or terminate maintain any benefit compensatory or benefits plan, programagreement arrangement or prevent Newco, policy, agreement the Company or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of their respective Subsidiaries from modifying or terminating any such plan, program, policy, agreement program or other arrangement.
Appears in 2 contracts
Samples: Merger Agreement (Industrea Acquisition Corp.), Merger Agreement
Employment Matters. (a) During Acquiror agrees that all employees of Target who continue employment with Acquiror or the Surviving Corporation after the Effective Time (the "Continuing Employees") shall be eligible to (i) continue to participate in -------------------- the Acquiror or Surviving Corporation's (as determined by Acquiror) health, vacation and other non-equity based employee benefit plans; provided, however, that (A) nothing in this Section 5.15 or elsewhere in this Agreement shall limit the right of Acquiror or the Surviving Corporation to amend or terminate any such health, vacation or other employee benefit plan at any time, and (B) if Acquiror or the Surviving Corporation amends or terminates any such health, vacation or other employee benefit plan, then, (1) subject to any necessary transition period, each Continuing Employee who immediately prior to the termination of such plan participated in such plan shall be eligible to participate in Acquiror's health, vacation and other non-equity based employee benefit plans, to substantially the same extent as employees of Acquiror in similar positions and at similar grade levels, (2) to the extent permitted by such plan, Acquiror shall credit each such Continuing Employee's service with Target, to the same extent as such service was credited under the similar employee benefit plans of Target immediately prior to the Effective Time, for purposes of determining eligibility to participate in such employee benefit plan of Acquiror, and (3) to the extent permitted or required by such employee benefit plan of Acquiror and applicable law, Acquiror shall waive any pre- existing condition limitations, waiting periods or similar limitations under such employee benefit plan of Acquiror and shall provide each such Continuing Employee with credit for any co-payments previously made and any deductibles previously satisfied, and (ii) participate in Acquiror's equity-based plans to the same extent as similarly situated employees of Acquiror. Nothing in this Section 5.15 or elsewhere in this Agreement shall be construed to create a right in any employee to employment with Acquiror or the Surviving Corporation and, subject to any other binding agreement between an employee and Acquiror or the Surviving Corporation, the employment with each Continuing Employee shall be "at will" employment. Acquiror shall review the health, vacation and other employee benefit plans of Target prior to the Effective Time in connection with its obligations under this Section 5.15(a).
(b) Pursuant to the terms and conditions of the Target ESPP, Target's Board of Directors shall (i) cause the offering period commencing on the Closing and ending on currently in effect as of the date hereof to be the last such offering period under the Target ESPP, and (ii) cause all Purchase Rights to be exercised at the end of such offering period or otherwise ensure that is twelve the holders of such Purchase Rights have withdrawn from the Target ESPP in accordance with the terms thereof.
(12c) months after To the Closing extent applicable, Acquiror and Target shall each take such reasonable steps as are required to cause the disposition and acquisition of equity securities (or if earlier, including derivative securities) pursuant to Section 1 in connection with the date consummation of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide Merger by each individual who is an employee officer or director of the Company or any Company Subsidiary immediately prior Target to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on qualify for exemption from Section 7.8(a16(b) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided Exchange Act pursuant to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized Rule 16b-3 promulgated under the corresponding Company Employee ProgramExchange Act.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior Prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, Target shall take such action as is necessary to terminate its 401(k) Plan (the right "Target 401(k) Plan") and also ------------------ shall take all necessary action to ensure that each employee of Target or any Target Subsidiary is fully vested in his or her account balance under the Target 401(k) Plan. As soon as practicable following IRS approval of the holder thereof to any payment in respect termination of the Change in Control Price (Target 401(k) Plan or such earlier time as defined in Acquiror may deem reasonably practicable, the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and assets thereof shall be settled in cash (distributed and for Acquiror shall permit the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any roll such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.distributions over into Acquiror's 401(k)
Appears in 2 contracts
Samples: Merger Agreement (Data Critical Corp), Merger Agreement (Data Critical Corp)
Employment Matters. (a) During Immediately after the period commencing Closing, each of the Companies and their Subsidiaries shall continue to employ all individuals who are employees of any of the Companies or their Subsidiaries on the Closing and ending on Date, including employees not actively at work due to injury, vacation, military duty, disability or other leave of absence (the date that is twelve (12) months after “Affected Employees”). Until the first anniversary of the Closing (or if earlierDate, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and Buyer shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits and compensation to Affected Employees that are no less favorable, favorable in the aggregate, aggregate than those provided to such Continuing Employee persons immediately prior to the Closing, Closing Date whether arising under a Company Plan or any plan sponsored by Seller or any of its Affiliates (other than the Companies and their Subsidiaries); provided, however, that no post-retirement medicalBuyer shall not be obligated to provide for equity awards or grants, equity-based compensation, deferred compensation, and equity awards or retention, change-in-control grants or other special or non-recurring compensation or benefits provided awards made pursuant to the Cendant Corporation 2003 Long Term Incentive Plan prior to the Closing Date shall not be taken into account in determining the compensation and benefits of Affected Employees. Periods of employment with any of the Companies or their Subsidiaries (including, without limitation, any current or former Affiliate of the Companies or any predecessor, to the extent previously recognized under the Company Plans), shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For determining, as applicable, the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status eligibility for participation and vesting of any Continuing Employeeemployee under all employee benefit plans offered by Buyer or a Subsidiary of Buyer to the Affected Employees, including vacation plans or arrangements, 401(k) or other retirement savings plans and any severance or welfare plans. Buyer shall (i) waive any limitation on medical coverage of any Affected Employees due to pre-existing conditions under the applicable medical plan of Buyer or a Subsidiary of Buyer to the extent such limitation did not apply to the Affected Employee under the medical employee benefit plan of any of the Companies or their Subsidiaries or their Affiliates that covered the Affected Employee on the Closing Date, and (ii) credit each Affected Employee with all deductible payments and co-payments paid by such employee under the medical employee benefit plan of the Companies or their Affiliates prior to the Closing Date during the year in which the Closing occurs for the purpose of determining the extent to which any such employee has satisfied his or her deductible and whether he or she has reached the out-of-pocket maximum under any medical plan of Buyer or a Subsidiary of Buyer for such year.
(b) From The Affected Employees shall not accrue benefits under any Company Plan not sponsored by the Companies on and after the Closing Date. Prior to the Closing Date, (i) the Companies shall withdraw, effective as of the Closing Date, from any Company Merger Effective TimePlan not sponsored by the Companies (the “Retained Company Plans”), Parent in the manner, if any, that such Company Plan specifies for withdrawal of a participating employer, and (ii) the Sellers shall take all actions necessary or appropriate to cause the Companies and Subsidiaries to have no further obligations or liabilities under any Retained Company Plan on and after the Closing Date.
(c) Notwithstanding the general provisions of Section 4.2(a), until at least December 30, 2006, Buyer shall, and shall cause its Affiliates to, provide each Parent Subsidiary, as applicable, Affected Employee with severance benefits that are no less favorable than those that would have been provided to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect such Affected Employee immediately prior to the Company Merger Effective Time.
(cClosing Date under the Cendant Corporation Severance Pay Plan for Non-Officer Employees or, if applicable, the severance benefits set forth on Section 4.2(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibilitySeller Disclosure Schedule, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and each as in effect on the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee ProgramClosing Date.
(d) Without limiting Buyer shall take all actions necessary to assume and honor the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 Company Plans other than the Retained Company Plans. Buyer shall be treated as set forth in Section 7.8(d)(isolely responsible for all liabilities relating to the amendment, termination or alleged termination of any Company Plan other than the Retained Company Plans.
(e) Buyer shall, within two Business Days, notify Seller of the Company Disclosure Schedule, termination of employment and (ii) with respect to each Company 2015 Plan Restricted Share that whether such termination is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price for Cause (as defined in the Company’s 2015 Award and Option Plan as in effect applicable Retention Letter) of any individual who is party to a “Retention Letter” listed on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii3.1(r)(i) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Seller Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 2 contracts
Samples: Purchase Agreement (Cendant Corp), Purchase Agreement (Affinion Loyalty Group, Inc.)
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent SubsidiarySubsidiary and Parent OP, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Topco Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of or Parent OP immediately following the Company Topco Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise compensation and benefits determined by the Parent Parties and, if applicable, compensation and benefits that are mutually agreed between the Parent Parties and such Continuing Employee. In addition, a base salary or base wage rate during the period commencing on the Topco Merger Effective Time and ending on the date that is not less than twenty four (24) months after the base salary Topco Merger Effective Time (or base wage rate provided to such Continuing Employee immediately prior to if earlier, the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) date of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From ’s termination of employment with Parent, Parent OP and after the Company Merger Effective TimeParent Subsidiaries), Parent shall, and shall cause each Parent SubsidiarySubsidiary and Parent OP, as applicable, to honorto, in accordance provide Continuing Employees with their terms, all severance and separation pay plans, agreements and arrangementsbenefits that are consistent with, and all written employmentno less favorable than, severancethose provided for in the severance plan in effect for such Continuing Employee as of the Closing as described on Section 4.14(g) of the Disclosure Schedule.
(b) Parent shall, retentionand shall cause each Parent Subsidiary and Parent OP, incentiveas applicable, change in control and termination agreements (including any change in control provisions therein) applicable to employees to, provide, each employee of the Company or any Company Subsidiary and in effect immediately prior to Subsidiaries whose employment terminates as of the Company Topco Merger Effective Time, and who meets the requirements for severance pay under the applicable severance plan in effect for such employee as of the Topco Merger Effective Time as described in Section 4.14(g) of the Disclosure Schedule, with severance benefits that are consistent with, and no less favorable than, those provided for in such severance plan.
(c) Parent shall, and shall cause Parent OP and the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent, Parent OP and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (“Parent Employee Program”) (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting To the generality of Section 7.8(a)extent permitted by applicable Law, (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent OP and the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(he) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.87.8 and the Company and the Company Subsidiaries agree, upon the reasonable request of Parent, to assist the Parent Parties with respect to post-closing employment matters relating to employees of the Company and the Company Subsidiaries.
(if) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent, Parent or OP, the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent, Parent OP, or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 2 contracts
Samples: Merger Agreement (Prologis, L.P.), Merger Agreement (Liberty Property Limited Partnership)
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of immediately following the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is and a target annual cash incentive opportunity that, in the aggregate, are not less than those that were provided to such Continuing Employee immediately prior to the Closing (provided that in no event may such base salary or base wage rate be less than that provided to such Continuing Employee immediately prior to the Closing), and (ii) target annual or other short-term periodic cash incentive opportunities health and welfare benefits that are no less favorable in the aggregate than those provided to similarly situated employees of Parent and the Parent Subsidiaries. In addition, during the period commencing on the Company Merger Effective Time and ending on the date that is twelve (12) months after the Company Merger Effective Time (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide Continuing Employees who are not party to an existing severance letter agreement with the Company, with severance benefits that are consistent with, and no less than the target annual or other short-term periodic cash incentive opportunities set forth favorable than, those described on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From Parent shall, and shall cause each Parent Subsidiary and Parent OP, as applicable, to, provide, each employee of the Company or any Company Subsidiary who is not party to an existing severance letter agreement with the Company, whose employment terminates as of the Company Merger Effective Time, and who meets the requirements for severance pay as described in Section 7.8(a) of the Company Disclosure Schedule, with severance benefits that are consistent with, and no less favorable than, those described on Section 7.8(a) of the Company Disclosure Schedule. In addition, from and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all existing severance letter agreements between the Company and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees employee of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective TimeSubsidiary.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (“Parent Employee Program”) (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e7.8(d) of the Company Disclosure Schedule.
(fe) To the extent permitted by applicable Law, Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(hf) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.87.8 and the Company and the Company Subsidiaries agree, upon the reasonable request of Parent, to assist the Parent Parties with respect to post-closing employment matters relating to employees of the Company and the Company Subsidiaries.
(ig) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 2 contracts
Samples: Merger Agreement (DUKE REALTY LTD PARTNERSHIP/), Merger Agreement (Prologis, L.P.)
Employment Matters. At Closing, MasTec Services, Inc. will terminate the employment of the employees listed on Schedule 12(f) (athe “Transferred Employees”) During and the period commencing on Buyer shall immediately hire the Closing Transferred Employees and ending on the date establish and make available a group medical plan for all Transferred Employees and their dependants that is twelve (12) months after substantially similar to the Closing (or if earlier, group medical plan available to the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary Transferred Employees immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary Closing under Seller’s plan. Seller’s plan will terminate as to the Transferred Employees at the Closing. The Buyer shall credit the Transferred Employees with all service of the Company Merger Effective Time Transferred Employees recognized under any Employee Benefit Plan or Benefit Arrangements as service with the Buyer for purposes of eligibility to participate, vesting and levels of benefits available, under all Buyer Plans (eachas defined below). The Buyer shall waive any coverage waiting period, a “Continuing Employee” pre-existing condition and collectivelyactively-at-work requirements under the Buyer’s employee benefit plans, policies, programs, or arrangements (the “Continuing EmployeesBuyer Plans”) with and shall provide that any expenses incurred before the Closing Date by a Transferred Employee (iand his or her dependents) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than during the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) calendar year of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For satisfying the avoidance of doubtapplicable deductible, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From coinsurance and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and maximum out-of-pocket maximums under provisions, and applicable annual and/or lifetime maximum benefit limitations of the corresponding Company Employee Program Buyer Plans. The Buyer Plans shall not require contributions by Transferred Employees at a rate that exceeds the rate in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the effect for other similarly situated employees of the Company or any Company Subsidiary (Buyer. Seller shall use commercially reasonable efforts to assist Buyer in its effort to hire Jxxxx Xxxxxx, Lxxxx Xxxxx, Jxxx Xxxxx and the other than any communications consistent Transferred Employees following the Closing. If requested by Buyer, Seller will use commercially reasonable efforts to assist Buyer in all material respects with prior communications made by the Company or Parent) pertaining its efforts to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, hire Mxxxxxxxx Xxxxxxx. Notwithstanding anything to the extent not prohibited by applicable Lawcontrary set forth herein, (i) provide Parent with a copy under no circumstances shall Seller’s obligations pursuant to the two immediately preceding sentences require Seller to expend any funds or take any actions that would otherwise disrupt the operations of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faithSeller’s business.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Mastec Inc), Asset Purchase Agreement (Mastec Inc)
Employment Matters. (a) During the period commencing on at the Closing and ending on the date that is twelve (12) months after following the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries)Date, Parent shall, and or shall cause each Parent Subsidiary, as applicable, the Surviving Corporation to, provide each individual who is an employee and officer of the Company or any Company Subsidiary the Subsidiaries who is employed immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees””) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage level at an annual rate that is not less than substantially similar to the annual rate of the base salary or base wage rate level that was provided to such Continuing Employee immediately prior to the Closing, Effective Time and (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, favorable in the aggregate, aggregate than those provided to the benefits that each such Continuing Employee was entitled to receive immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeEffective Time.
(b) From and after the Company Merger Effective TimeClosing, Parent shall, and or shall cause each Parent Subsidiarythe Surviving Corporation to, as applicable, continue to honor, pay, perform and satisfy any and all liabilities, obligations and responsibilities to, or in respect of, each employee, officer and independent contractor of the Company and the Subsidiaries, and each former employee, officer and independent contractor of Company and the Subsidiaries, as of the Closing arising under the terms of, or in connection with, any Company Plan in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Timeterms thereof.
(c) Parent shallFor all purposes under the employee benefit and compensation plans, programs, agreements and shall cause arrangements of Parent, the Parent Subsidiaries toSurviving Corporation or any of their respective subsidiaries in which Continuing Employees are eligible to participate following the Closing (the “Purchaser Plans”), provide credit for each Continuing Employee’s length all periods of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) , as applicable, or any predecessor entity thereto, by any Continuing Employee prior to the Closing Date will be credited for eligibility, participation and vesting purposes (other than for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that under such service was recognized under a similar plan, programprogram or policy and for purposes of calculating benefits under any severance, policy, agreement sick leave or arrangement of the Company or any Company Subsidiaryvacation plans, except that no where such prior service credit will be required or provided crediting would result in duplication of benefits. The Purchaser Plans shall not deny Continuing Employees coverage on the basis of pre-existing conditions to the extent that (i) it results in a duplication of benefits, such conditions were waived or (ii) such service was not recognized satisfied under the corresponding similar Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of Plans immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity Closing and shall be settled in cash (and for the avoidance of doubt, credit such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible for any deductibles and out-of-pocket maximums under expenses paid prior to the corresponding Company Employee Program Closing Date in satisfying any applicable deductibles, deductibles and out-of-pocket maximums or coexpenses in the applicable plan year to which such deductibles and out-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursof-pocket expenses relate.
(gd) Prior The parties hereto acknowledge and agree that all provisions contained in this Section 6.10 with respect to making any broad-based, written communications to the employees of the Company or and the Subsidiaries are included for the sole benefit of the Parties and shall not create any Company Subsidiary (other than right, including any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Lawthird-party beneficiary right, (i) provide Parent with a copy of the intended communicationin any other Person, including, without limitation, any employee, former employee or any participant or any beneficiary thereof in any Company Plan or Purchaser Plan, or (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee employment or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, any of the Company Subsidiaries, Parent or the Parent SubsidiariesSurviving Corporation. Nothing contained in this Section 6.10, (iii) constitute express or implied, is intended to be treated as or shall be considered to be an amendment, modification, adoption, suspension amendment or termination adoption of any Company Employee Program plan, program, agreement, arrangement or any Parent Employee Program, or (iv) alter or limit the ability policy of the Company, any of the Company Subsidiaries, Parent or the Parent Subsidiaries Surviving Corporation nor shall it interfere with Parent’s, the Surviving Corporation’s or any of the Subsidiaries’ right to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with Company Plan (subject to the terms of such planCompany Plan) or to terminate the employment of any employee of the Company or the Subsidiaries for any reason; provided, program, policy, agreement or arrangementthat the Surviving Corporation and the Subsidiaries shall be subject to the provisions of Section 6.10(a).
Appears in 1 contract
Employment Matters. (a) During the period commencing Buyer shall interview in good faith all Employees listed on the Closing and ending on the date that is twelve Schedule 6.5
(12a) months for consideration for employment with Buyer after the Closing (Date, or if earliernotify the Seller that they have chosen to hire the employee without the need for an interview, but Buyer shall not be obligated to offer employment to such Employees. Each Employee offered employment with the date Buyer must consent to and satisfactorily pass a background check and the other screening policies applied by Buyer to its own new employees in similar positions. Buyer and Seller shall mutually determine an appropriate time to conduct interviews or any other communication with Seller's employees to be determined, and such timing shall take into consideration both the sensitive nature of ownership change and sound operational timing requirements to facilitate a smooth transition. Employees of Seller who are hired by Buyer are herein called "Hired Employees". Prior to making any communications to Employees pertaining to any terms or conditions of employment that may be affected by the transactions contemplated by this Agreement, Seller shall provide Buyer with a copy of the Continuing intended communication.
(b) Buyer shall provide, or cause its affiliates to provide, to each Hired Employee’s termination of employment with Parent and the Parent Subsidiaries, base compensation, bonus opportunities (if any), Parent shall, severance benefits and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, favorable than those provided to employees of Buyer and its affiliates who are such Continuing Hired Employee's similarly situated counterparts. After the Closing Date, all Hired Employees will cease participation in any employee benefit plans provided by Seller and will begin participation in the employee benefit plans of Buyer, as determined by Buyer. Buyer will take such action as may be reasonably necessary to (i) give each Hired Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, credit for his or retention, change-in-control or other special or non-recurring compensation or benefits provided her years of service with Seller prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubtdetermining eligibility to participate in benefits, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Personincluding, nor shall it alter the atbut not limited to, paid-will employment status of any Continuing Employee.
(b) From time off and after the Company Merger Effective Time, Parent shallvacation, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees vesting under the employee benefit plans of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries Buyer in which such Continuing Hired Employee is becomes eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to after the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure ScheduleClosing, and (ii) with respect cause each Hired Employee to each Company 2015 Plan Restricted Share that is issued be eligible to participate in all employee benefit plans maintained by Buyer and outstanding generally available to employees of Buyer on the same terms and conditions as employees of Buyer as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective TimeClosing Date, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, exclusions and waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable Hired Employees and their respective covered dependents under the corresponding Company Employee Program or Buyer's medical and health plans (except to the extent that such preexisting condition limitationsconditions, exclusions, actively-at-work requirements and exclusions or waiting periods would apply under Seller's benefit plans in which such Hired Employees were participating immediately prior to the Closing). Notwithstanding the previous sentence, Hired Employees who are not currently participating in Seller’s medical benefits plan will be subject to Buyer’s sixty (60) day waiting period before being eligible to participate in Buyer’s medical benefits plan.
(c) The effective time of employment by Buyer for the Hired Employees shall be the Transfer Date for the applicable Store (such effective time being the "Hiring Date"). Seller shall pay all wages, salaries and other sums due to its employees including, without limitation, accrued vacation and payroll taxes and other withholdings thereon, up to the Hiring Date. Upon or prior to the Hiring Date, Seller shall pay to each Hired Employee any earned but unused vacation time to which such employee is entitled pursuant to the vacation policy applicable to such employee immediately prior to the Closing Date. In addition, Seller shall be solely responsible to pay for any liability which may exist or arise as a result of wage claims, benefit claims or other employment related claims for any employees of any sort with respect to all periods prior to the applicable Hiring Date.
(d) Buyer and Seller agree that Buyer is not assuming any liability under any benefit plans maintained by any Seller for the benefit of its employees and that Buyer shall not be deemed a successor company to any Seller in connection with any employee benefit plan or other employment related arrangement to which the Employees are or were entitled. Nothing herein shall confer upon any of the Hired Employees or other employees of Seller any rights or remedies to directly enforce the provisions of this Section 5, including any right to employment, or continued employment for any specified period, of any nature whatsoever under or by reason of the Agreement. Buyer shall have been satisfied the right, at any time and in its sole discretion, to amend or waived terminate any benefit plan that Buyer may make available to any Hired Employee, without the consent of any person covered thereunder.
(e) Seller shall provide, and be solely responsible for, any COBRA benefits to or expenses with respect any Employee who does not become a Hired Employee. Seller will be responsible for providing all notices and continuation coverage required under COBRA to all such employees (including any dependents or beneficiaries) who are or become "M&A Qualified Beneficiaries" (as such term is defined in Treasury Regulations §54.4980B-9) as a result of the consummation of this Agreement. Specifically, Seller agrees that all obligations to provide such continuation coverage to M&A Qualified Beneficiaries are being allocated to and will remain with Seller. Buyer shall provide to Seller, a final roster of employees who have accepted employment with Buyer and those who have declined employment with Buyer.
(f) With respect to the Hired Employees, Buyer shall have full responsibility under the comparable Company Employee Program and (ii) honor WARN Act caused by any paymentsact or omission of Buyer after the Closing Date. With respect to the Employees of Seller, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward including the deductible and out-of-pocket maximums Hired Employees, Seller shall have full responsibility under the corresponding Company Employee Program in satisfying WARN Act caused by any applicable deductibles, out-of-pocket maximums act or co-payments under a corresponding Parent Employee Program during the calendar year in which omission of Seller prior to or on the Closing occursDate. With respect to the Employees of Seller, excluding the Hired Employees, Seller shall have full responsibility under the WARN Act caused by any act or omission after the Closing Date. Seller shall be responsible for all other WARN Act liabilities relating to the periods prior to, on and after the Closing Date, including any such liabilities that result from employees' separation of employment from Seller and/or employees not becoming Hired Employees pursuant to this Section 6.5.
(g) Prior to making any broad-based, written communications to the employees No provision of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, Section 6.5 shall (i) provide Parent create any third party beneficiary or other rights in any employee or former employee of Seller or its affiliates in respect of continued employment (or resumed employment) with a copy Buyer or its affiliates or create any such rights in any such persons in respect of the intended communicationany benefits that may be provided, directly or indirectly, under any employee benefit plan that may exist or be established by Buyer or any of its affiliates, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create be construed as an employment agreement or create any right in any Continuing Employee or any other Person amendment to any continued employment or service with or foremployee benefit plan, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries a limitation on rights to amend, modify or terminate after the Closing Date any employee benefit planplan of Buyer, program, policy, agreement Seller or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementtheir respective affiliates.
Appears in 1 contract
Samples: Asset Purchase Agreement (Caseys General Stores Inc)
Employment Matters. (a) During Parent or Purchaser, in conjunction with Seller, shall be permitted to meet with and interview all employees of Seller and its Subsidiaries during normal business hours upon reasonable notice. Purchaser shall offer employment to such employees of Seller as designated by Purchaser, not more than three (3) days after entry in the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date Bankruptcy Court of the Continuing Employee’s termination of employment Approval Order, whom Purchaser desires to employ in connection with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee purchase of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed Acquired Business, on terms provided by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with Purchaser; provided that (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than offers -------- ---- shall be made for positions located in the base salary or base wage rate provided to such Continuing Employee immediately prior to the ClosingCity of San Francisco, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, each such offeree would be offered a similar position in a similar role as such offerees enjoyed with Seller and (iii) the base salary compensation (this excludes benefits, vacation, sick time, personal time, bonuses, commissions and any other remuneration outside of base salary compensation) for each offeree shall be substantially similar to his or her existing base salary compensation with the Seller and employee benefits provided further that are no less favorable, each such offer shall be contingent on -------- ------- completion of the Closing and on the offeree's compliance with the standard hiring practices of Purchaser. A full list of employees whom Purchaser elects to employ shall be submitted to Seller not more than three (3) days after entry in the aggregateBankruptcy Court of the Approval Order. Neither Parent nor Purchaser nor shall any of them permit their respective subsidiaries to, than those provided to such Continuing Employee immediately prior to the last day of the Auction, solicit or make offers of employment to any employees of Seller other than (i) with the prior permission of Seller, or (ii) in accordance with a general plan for the recruitment of employees agreed with Seller. Each such employee who accepts such employment as of the Closing, provided, however, that no post-retirement medical, equity-based shall be referred to herein as a "Transferred Employee." Seller shall terminate all Transferred -------------------- Employees as of the Closing Date and shall pay to such Transferred Employees all unpaid compensation, deferred compensationas well as all accrued benefits (including, or retentionwithout limitation, change-in-control or all sick pay and personal time pay other special or non-recurring compensation or benefits provided prior to than accrued vacation pay, earned through the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(aDate). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and As soon as is practical after the Company Merger Effective TimeClosing, Parent shall, and Seller shall cause each Parent Subsidiary(i) take all actions as are necessary or appropriate to fully vest, as applicableof the Closing Date, the interests of the Transferred Employees under Seller's retirement plan(s); (ii) provide such employees an election to rollover their vested interests to Purchaser's defined contribution retirement plan (and Purchaser shall take all reasonable steps necessary to facilitate such roll-over); and (iii) rollover the full amount of the vested interests which the employees have elected to rollover , as soon as possible but not later than ninety (90) days after the Closing Date, to honorthe accounts of such employees under Purchaser's defined contribution retirement plan. Purchaser shall have no liability for any discontinuance, in accordance termination or other charges that may be due to any investment option or management providers or to any plan record keeping or other agents with their terms, all severance respect to such termination and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions thereinrollover of such employees' interests from Seller's retirement plan(s) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective TimePurchaser's retirement plan.
(c) Following the Closing Date, Purchaser shall arrange for each Transferred Employee (including without limitation all dependents) to be eligible for substantially the same comprehensive medical benefits in the aggregate (subject to Purchaser's standard employee contribution requirements) as those received by newly hired employees of Parent shallor Purchaser, subject to the provisions of this paragraph. In addition, each Transferred Employee shall be eligible to participate in Parent's and Purchaser's commission, bonus, stock option, performance and other incentive compensation programs as other similarly situated employees of Parent or Purchaser. In addition, each Transferred Employee shall be eligible to participate in Parent's and Purchaser's Code Section 401(k) plans as newly hired employees of Parent or Purchaser, and shall cause the Parent Subsidiaries tobe permitted to roll-over plan balances from Seller's Code Section 401(k) plans, provide shall not be given any credit for each Continuing Employee’s length years of service with the Company Seller (and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiaryits subsidiaries and predecessors) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) prior to the same extent that such service was recognized under a similar planClosing Date. Each Transferred Employee shall, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that permitted by law (i) it results in a duplication including the Health Insurance Portability and Accountability Act of benefits1996, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(aas amended), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) applicable tax qualification requirements, and the terms of the Company Disclosure Scheduleapplicable plan of Parent and Purchaser, and subject to any applicable break in service or similar rule, receive credit for all purposes including, without limitation, for eligibility to participate and vesting under Purchaser or Parent employee benefit plans for years of service with Seller (iiand its subsidiaries and predecessors) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior Closing Date, including vacation accrual but expressly excluding Code Section 401(k) plans. If applicable, and to the Company Merger Effective Timeextent permitted by law (including the Health Insurance Portability and Accountability Act of 1996, as amended), applicable tax qualification requirements, and the right terms of the holder thereof to any payment in respect applicable plan of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall usePurchaser, and shall cause the Parent Subsidiaries to use, Purchaser will use commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health and all pre-existing condition (or welfare benefits to (iactively at work or similar) waive all limitations as to preexisting conditionslimitations, exclusions, eligibility waiting periods and service conditions evidence of insurability requirements under any group health plans to be waived with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Transferred Employees (and their eligible dependentsdependents and will use commercially reasonable efforts to provide them with credit for any co-payments, deductibles, and offsets (or similar payments) that were applied toward made during the deductible and out-of-pocket maximums under plan year including the corresponding Company Employee Program in Closing Date for the purposes of satisfying any applicable deductiblesdeductible, out-of-pocket maximums pocket, or co-payments similar requirements under a corresponding any Purchaser or Parent Employee Program during the calendar year employee benefit in which they are eligible to participate after the Closing occursDate.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Employment Matters. (a) During For a period of one (1) year following the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing Effective Time (or if earliershorter, during the date period of employment), Sun shall, or shall cause the Continuing Employee’s termination Sun Subsidiaries (including the Surviving Corporation and its Subsidiaries) to provide to each employee of employment with Parent Ironman and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, Ironman Subsidiaries as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains continues to be employed by Parent or any Parent Subsidiary as of Sun and the Company Merger Sun Subsidiaries (including the Surviving Corporation and its Subsidiaries) after the Effective Time (each, a “Continuing Ironman Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a at least the same annual base salary or base wage rate that is not less than the base salary or base wage rate rate, as applicable, as provided to such Ironman Continuing Employee immediately prior to the ClosingEffective Time; provided, that, in the event there is a reduction in base salaries or wage rates that affect substantially all employees of Sun and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) after the Effective Time, the annual base salary or wage rate of similarly situated Continuing Ironman Employees may be commensurately reduced. In order to further an orderly transition and integration, and subject to applicable law, Sun and Ironman shall cooperate in good faith in reviewing, evaluating and analyzing the Sun Benefit Plans and Ironman Benefit Plans with a view towards developing appropriate new benefit plans, or selecting the Sun Benefit Plans or Ironman Benefit Plans, as applicable, that will apply with respect to employees of Sun and the Sun Subsidiaries (including the Surviving Corporation and its Subsidiaries) after the Effective Time (collectively, the “New Benefit Plans”), which New Benefit Plans will, to the extent permitted by applicable law, and among other things, (i) treat similarly situated employees on a substantially equivalent basis, taking into account all relevant factors, including duties, geographic location, tenure, qualifications and abilities, and (ii) target annual or other short-term periodic cash incentive opportunities that are not less than discriminate between employees who were covered by Sun Benefit Plans, on the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Scheduleone hand, and (iii) those covered by Ironman Benefit Plans, on the other compensation and employee benefits that are no less favorablehand, in at the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeEffective Time.
(b) From For purposes of eligibility, participation, vesting and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements benefit accrual (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
except (c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiaryi) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan or retiree medical plan, (ii) to the extent that such credit would result in a duplication of benefits, or (iii) under any plan that is grandfathered or frozen) under the Sun Benefit Plans, Ironman Benefit Plans and the New Benefit Plans, service with or credited by Sun and the Sun Subsidiaries or any of their respective predecessors to an employee of Sun and the Sun Subsidiaries as of immediately prior to the Effective Time who continues to be employed by Sun and the Sun Subsidiaries (including the Surviving Corporation and its Subsidiaries) after the Effective Time (each, a “Continuing Sun Employee”) and service with or credited by Ixxxxxx and the Ironman Subsidiaries or any of their respective predecessors to a Continuing Ironman Employee shall be treated as service with Sun to the same extent that such service was recognized taken into account under a similar plan, program, policy, agreement the analogous Sun Benefit Plan or arrangement of the Company or any Company Subsidiary, except that no such Ironman Benefit Plan prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee ProgramEffective Time.
(dc) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with With respect to each Company 2015 any Ironman Benefit Plan, Sun Benefit Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option or New Benefit Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Sun Employee participates that provides health or welfare benefits Continuing Ironman Employee first becomes eligible to participate on or after the Effective Time, and in which such employees did not participate prior to the Effective Time, Sun shall: (i) waive all limitations as to preexisting conditions, exclusions, exclusions and waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employeessuch employees and their eligible dependents, other than limitations applicable under the corresponding Company Employee Program or except to the extent that such preexisting condition limitationspre-existing conditions, exclusions, actively-at-work requirements and exclusions or waiting periods would not have been satisfied or waived apply under the comparable Company Employee Program analogous Sun Benefit Plan or Ironman Benefit Plan, as the case may be, and (ii) honor provide each such employee and his or her eligible dependents with credit for any paymentsco-payments and deductibles paid prior to the Effective Time (or, charges and expenses of Continuing Employees if later, prior to the time such employee commenced participation in the New Benefit Plan) under a Sun Benefit Plan or Ironman Benefit Plan (and their eligible dependentsto the same extent that such credit was given under the analogous Sun Benefit Plan or Ironman Benefit Plan) that were applied toward the in satisfying any applicable deductible and or out-of-pocket maximums requirements under the corresponding Company Employee Program in satisfying any applicable deductiblesIronman Benefit Plan, out-of-pocket maximums Sun Benefit Plan or co-payments under a corresponding Parent Employee Program during the calendar year New Benefit Plan in which such employee first become eligible to participate after the Closing occursEffective Time.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(id) Nothing in this Section 7.8 5.3 shall (i) confer any rights upon any Personbe construed as an amendment or other modification of, including any Continuing Employee or former employee of the Company or the Company Subsidiariestermination of, any Ironman Benefit Plan, Sun Benefit Plan or other than the Parties to this Agreement and their respective successors and permitted assignsemployee benefit plan or arrangement, (ii) constitute or create an employment agreement or create any limit the right in any Continuing Employee of Sun, Ironman or any of their respective subsidiaries to amend, terminate or otherwise modify any Ironman Benefit Plan, Sun Benefit Plan or other Person to any continued employment employee benefit plan or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiariesarrangement, (iii) constitute or be treated as an amendmentconstrued to create any third party beneficiary rights in any Sun Continuing Employee, modificationIronman Continuing Employee, adoption, suspension or termination of any Company Employee Program or any Parent Employee Programother current or former employee or service provider or any of their respective beneficiaries, or (iv) alter or be construed to limit the ability right of the Company, the Company Subsidiaries, Parent Sun or the Parent Sun Subsidiaries or Ironman or the Ironman Subsidiaries to amendterminate the employment of any Sun Continuing Employee, modify Ironman Continuing Employee, or terminate any benefit planother employee or service provider, programin each case, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent in accordance with the terms of such plan, program, policy, agreement or arrangementapplicable law.
Appears in 1 contract
Employment Matters. (a) During Until December 1, 2013, Buyer will cause the period commencing on Company to continue to provide the active employees of the Company or its Subsidiary with salary, wages, bonus opportunities, commission opportunities, if applicable, and benefits (excluding in all cases, transaction bonuses and equity-based compensation and benefits), which in the aggregate are at least substantially equivalent to the salary, wages, bonus opportunities, commission opportunities, if applicable, and benefits (with respect to benefits, as provided under the Employee Plans as set forth on, and as otherwise described in, Schedule 3.14(a)) (excluding in all cases, transaction bonuses and equity-based compensation and benefits) provided prior to the Closing and ending on Date by the date that is twelve (12) months after Company or its Subsidiary, taken as a whole. This Section 5.6 will not limit the Closing (or if earlier, the date obligation of the Continuing Employee’s termination Company or its Subsidiary or any successor or assign to maintain any Employee Plan that, pursuant to an existing Contract, must be maintained for a period longer than one year. No provision of this Agreement will be construed as a guarantee of continued employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an of any employee of the Company or any Company Subsidiary immediately prior its Subsidiary, and this Agreement will not be construed so as to prohibit the Company Merger Effective Time and who remains employed by Parent or its Subsidiary from having the right to terminate the employment of any Parent Subsidiary as employee of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeeits Subsidiary.
(b) From Each employee and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees former employee of the Company or any Company its Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length will be credited with his or her years of service with the Company and the Company Subsidiaries its Subsidiary (as well as service with and any predecessor employer of entities thereof) before the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level Closing Date under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent plan of Buyer and the Parent its Subsidiaries in which such Continuing providing benefits similar to those provided under an Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) Plan to the same extent that as such employee or former employee was entitled, before the Closing Date, to credit for such service was recognized under a similar plansuch Employee Plan; provided, program, policy, agreement or arrangement of that the Company or any Company Subsidiary, except that no such prior service credit foregoing will be required or provided not apply to the extent that (i) it results would result in a duplication of benefits, benefits or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior benefit accruals under defined benefit pension plans. With respect to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program plan year in which Buyer ceases to maintain any Continuing particular Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditionsPlan, exclusionseach employee will be given credit for amounts paid under such Employee Plan for purposes of applying deductibles, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, activelyco-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible payments and out-of-pocket maximums under as though such amounts had been paid in accordance with the corresponding Company Employee Program in satisfying any applicable deductiblesterms and conditions of the parallel plan, out-of-pocket maximums program or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursarrangement of Buyer or its Subsidiaries.
(gc) Prior to making any broad-based, written communications to the employees No provision of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, Section 5.6 (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider creates any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each third-party beneficiary or other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer rights for any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assignsits Subsidiary (including any beneficiary or dependent thereof), (ii) constitute or create constitutes an employment agreement or create an amendment to or adoption of any right in employee benefit plan of or by any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Companymember of Buyer, the Company Subsidiariesor its Subsidiary, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) will alter or limit the ability of the CompanyBuyer, the Company Subsidiaries, Parent or the Parent any of their respective Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent them in accordance with the terms of such plan, program, policy, program agreement or arrangementarrangement and applicable Law.
(d) Upon Buyer's written request, made at least five business days prior to the Closing Date, the Company shall terminate the 2GIG Technologies, Inc. 401(k) Plan no later than immediately prior to the Closing.
(e) For a period of one year after the Closing Date, Seller shall make available to Buyer or the Company the services of Xxxx Xxxxxxxx (so long as he continues to be employed by Vivint, Inc. or one of its Affiliates) as reasonably requested by Buyer or the Company to facilitate the transactions contemplated by this Agreement; provided that Buyer shall reimburse Xxxx Xxxxxxxx and Seller for all out-of-pocket expenses incurred in connection with providing such services (it being understood, for avoidance of doubt, that Seller or its Affiliates shall not be entitled to reimbursement for any portion of Xxxx Xxxxxxxx'x compensation or benefits).
Appears in 1 contract
Employment Matters. (a) During the period commencing on at the Closing Effective Time and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries)Earn-Out Period End Date, Parent shall, and shall cause each Parent Subsidiary, as applicable, to, the Surviving Company to provide each individual who is an employee of the Company or any Company Subsidiary immediately prior and its Subsidiaries who continues to the Company Merger Effective Time and who remains be employed by the Parent or any Parent Subsidiary as of its Subsidiaries immediately following the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) who has not entered into an employment agreement with the Company as of the date hereof with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate rate, as applicable, that is not no less than the base salary or base wage rate rate, as applicable, provided by the Company or any such Subsidiary to such Continuing Employee immediately prior to the Closing, Effective Time and (ii) target annual or other shortbenefits (including vacation and paid time off, but excluding defined benefit pension benefits, severance and long-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(aequity compensation) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, favorable in the aggregate, aggregate than those the benefits provided by the Company or any such Subsidiary to such Continuing Employee immediately prior to the ClosingEffective Time. No provision of this Agreement shall be construed as a guarantee of continued employment of any employee of the Company or any of its Subsidiaries and this Agreement shall not be construed so as to prohibit the Parent or any of its Subsidiaries from having the right to terminate the employment of any employee thereof at any time. During the period commencing at the Effective Time and ending on the December 28, provided2018, howeverParent shall cause the Surviving Company to provide each Continuing Employee who has not entered into an employment agreement with the Company as of the date hereof with target bonus opportunities, that if any, which are no post-retirement medical, equityless than the target bonus opportunities provided by the Company under its performance-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided management plans immediately prior to the Closing shall Closing. In Parent’s fiscal year 2019, Continuing Employees will be taken into account eligible to participate in Parent’s bonus plans for purposes employees at target bonus opportunities consistent with similarly situated employees of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From With respect to each benefit plan, program or policy maintained by Parent or its Subsidiaries (including the Surviving Company) following the Effective Time and in which any of the Continuing Employees become eligible to participate on or after the Company Merger Effective Time, Parent shallfor purposes of determining eligibility to participate, vesting, accrual of and shall cause each Parent Subsidiaryentitlement to benefits, as applicable, to honor, in accordance service with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or and its Subsidiaries (and any Company Subsidiary predecessors thereto) shall be treated as service with Parent and in effect its Subsidiaries to the same extent such service was recognized immediately prior to the Company Merger Effective TimeTime under a comparable Employee Plan; provided that the foregoing service recognition shall not apply (A) to the extent it would result in duplication of benefits for the same period of services, (B) where otherwise restricted by an insurance carrier, (C) for purposes of benefit entitlement or accrual under any defined benefit plan or any post-employment welfare benefit, or (D) to any benefit plan that is a frozen plan or that provides benefits to a grandfathered employee population.
(c) Parent shallNothing in this Section 7.02 express or implied, and is intended to or shall cause the Parent Subsidiaries toconfer upon any other Person any right, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company benefit or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes remedy of any benefit accrual nature whatsoever under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date by reason of this Agreement) that shall not have been satisfied in full through receipt . No provision of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.Section
Appears in 1 contract
Employment Matters. (a) During the For a period commencing on of one year following the Closing Date (the “Benefit Period”), Buyer will cause the Surviving Corporation to provide the employees of the Company and ending on the date that is twelve Company’s Subsidiaries, so long as employed by the Surviving Corporation or any Company Subsidiary during the Benefit Period, (12i) months after a salary or wage level and bonus opportunities, commissions, if applicable, and benefits which are substantially equivalent in the aggregate to the salary, wages, bonus opportunities, commissions, if applicable, and benefits provided immediately prior to the Closing (Date by the Company or if earlier, its Subsidiaries taken as a whole. This Section 5.5 will not limit the date obligation of the Continuing Employee’s termination Surviving Corporation to maintain any Employee Plan that, pursuant to an existing Contract, must be maintained for a period longer than one year. No provision of this Agreement will be construed as a guarantee of continued employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an of any employee of the Company or any Company Subsidiary immediately prior of its Subsidiaries, and this Agreement will not be construed to prohibit the Company Merger Effective Time and who remains employed by Parent Surviving Corporation or any Parent Subsidiary as of its Subsidiaries from having the right to terminate the employment of any employee of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent Surviving Corporation or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeeits Subsidiaries.
(b) From Each employee and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees former employee of the Company and its Subsidiaries will be credited with his or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length her years of service with the Company and the Company its Subsidiaries (as well as service with and any predecessor employer of entities thereof) before the Company or any Company Subsidiary) Closing Date for purposes of eligibility, eligibility and vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent plan of Buyer and the Parent its Subsidiaries in which such Continuing providing benefits similar to those provided under an Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) Plan to the same extent that as such employee or former employee was entitled, before the Closing Date, to credit for such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided Employee Plan. With respect to the extent that (i) it results calendar year in a duplication of benefitswhich Buyer ceases to maintain any particular Employee Plan, Buyer will cause the Surviving Corporation to grant, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law cause to be withheldgranted to, in full satisfaction and release each employee credit for amounts paid under such Employee Plan for purposes of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall useapplying deductibles, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, activelyco-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible payments and out-of-pocket maximums under the corresponding Company Employee Program as though such amounts had been paid in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent accordance with the terms and conditions of such the parallel plan, program, policy, agreement program or arrangementarrangement of Buyer or its Subsidiaries.
Appears in 1 contract
Employment Matters. (a) During After the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlierEffective Time, the date of Surviving Corporation shall either (i) continue the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee existing Employee Plans of the Company or any Company Subsidiary immediately prior to and the Company Merger Effective Time and who remains employed by Parent Subsidiaries as disclosed on SCHEDULE 4.15(a), or any Parent Subsidiary as (ii) provide substitutes for some or all of such Employee Plans that provide compensation or benefits to employees of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits Subsidiaries that are no less favorable, favorable in the aggregate, than those provided aggregate to such Continuing employees than the replaced Employee immediately Plans until December 31, 2007; PROVIDED, HOWEVER, that in no event shall the Surviving Corporation be obligated to continue, provide or otherwise take into account Employee Plans that relate to stock options, restricted stock, stock rights or any other equity-based arrangements; and PROVIDED FURTHER that nothing herein shall be construed to mean that the Surviving Corporation cannot amend or terminate any particular Employee Plan or Plans so long as the aggregate benefits to such employees under the remaining Employee Plans and all substituted plans are no less favorable to such employees than the existing Employee Plans until such date. For purposes of any such benefit plans, (A) Parent and the Surviving Corporation shall grant all employees of the Company credit for purposes of eligibility and vesting for all service with the Company and the Company Subsidiaries prior to the Closing, provided, however, that no postEffective Time for which such service was recognized by the Company; (B) any limitations on pre-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided existing conditions shall be waived (but only to the extent such conditions were covered prior to the Effective Time unless required by Law); and (C) expenses incurred with respect to the plan year in which the Closing occurs on or before the Effective Time shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status establishing satisfaction of any Continuing Employeeapplicable deductible, coinsurance and maximum out-of-pocket provisions to the same extent taken into account prior to the Effective Time.
(b) From and after the Company Merger Effective Time, Parent shallthe Surviving Corporation shall honor (i) the Transaction Bonus Agreements; and (ii) the Company's severance plan and severance agreements which are disclosed on SCHEDULE 4.15(a), and shall cause in each Parent Subsidiary, as applicable, to honorcase, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Timeterms thereof.
(c) Parent shallNothing in this Agreement shall be construed as granting any Person any rights of continuing employment, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (other than as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained provided by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Programcontract.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share Parent's current intention is that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall 's headquarters will remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Shareat its current location.
(e) Parent and As soon as reasonably practicable following the date hereof, the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications provide to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, Subsidiaries party to the extent not prohibited by applicable Law, (i) provide Parent with a copy of Transaction Bonus Agreements an amendment thereto providing that the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments payout amounts will be payable in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent connection with the terms of such planMerger whether the Closing is before or after December 31, program, policy, agreement or arrangement2006.
Appears in 1 contract
Employment Matters. At Closing, MasTec Services, Inc. will terminate the employment of the employees listed on Schedule 12(f) (athe “Transferred Employees”) During and the period commencing on Buyer shall immediately hire the Closing Transferred Employees and ending on the date establish and make available a group medical plan for all Transferred Employees and their dependants that is twelve (12) months after substantially similar to the Closing (or if earlier, group medical plan available to the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary Transferred Employees immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary Closing under Seller’s plan. Seller’s plan will terminate as to the Transferred Employees at the Closing. The Buyer shall credit the Transferred Employees with all service of the Company Merger Effective Time Transferred Employees recognized under any Employee Benefit Plan or Benefit Arrangements as service with the Buyer for purposes of eligibility to participate, vesting and levels of benefits available, under all Buyer Plans (eachas defined below). The Buyer shall waive any coverage waiting period, a “Continuing Employee” pre-existing condition and collectivelyactively-at-work requirements under the Buyer’s employee benefit plans, policies, programs, or arrangements (the “Continuing EmployeesBuyer Plans”) with and shall provide that any expenses incurred before the Closing Date by a Transferred Employee (iand his or her dependents) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than during the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) calendar year of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For satisfying the avoidance of doubtapplicable deductible, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From coinsurance and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and maximum out-of-pocket maximums under provisions, and applicable annual and/or lifetime maximum benefit limitations of the corresponding Company Employee Program Buyer Plans. The Buyer Plans shall not require contributions by Transferred Employees at a rate that exceeds the rate in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the effect for other similarly situated employees of the Company or any Company Subsidiary (Buyer. Seller shall use commercially reasonable efforts to assist Buyer in its effort to hire Jxxxx Xxxxxx, Lxxxx Xxxxx, Jxxx Xxxxx and the other than any communications consistent in all material respects with prior communications made by Transferred Employees following the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, Closing. Notwithstanding anything to the extent not prohibited by applicable Lawcontrary set forth herein, (i) provide Parent with a copy under no circumstances shall Seller’s obligation pursuant to the immediately preceding sentence require Seller to expend any funds or take any actions that would otherwise disrupt the operations of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faithSeller’s business.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Employment Matters. (a) During For a period of one (1) year following the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing Effective Time (or if earliershorter, during the date period of employment), Sun shall, or shall cause the Continuing Employee’s termination Sun Subsidiaries (including the Surviving Corporation and its Subsidiaries) to provide to each employee of employment with Parent Ironman and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, Ironman Subsidiaries as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains continues to be employed by Parent or any Parent Subsidiary as of Sun and the Company Merger Sun Subsidiaries (including the Surviving Corporation and its Subsidiaries) after the Effective Time (each, a “Continuing Ironman Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a at least the same annual base salary or base wage rate that is not less than the base salary or base wage rate rate, as applicable, as provided to such Ironman Continuing Employee immediately prior to the ClosingEffective Time; provided, that, in the event there is a reduction in base salaries or wage rates that affect substantially all employees of Sun and its Subsidiaries (including the Surviving Corporation and its Subsidiaries) after the Effective Time, the annual base salary or wage rate of similarly situated Continuing Ironman Employees may be commensurately reduced. In order to further an orderly transition and integration, and subject to applicable law, Sun and Ironman shall cooperate in good faith in reviewing, evaluating and analyzing the Sun Benefit Plans and Ironman Benefit Plans with a view towards developing appropriate new benefit plans, or selecting the Sun Benefit Plans or Ironman Benefit Plans, as applicable, that will apply with respect to employees of Sun and the Sun Subsidiaries (including the Surviving Corporation and its Subsidiaries) after the Effective Time (collectively, the “New Benefit Plans”), which New Benefit Plans will, to the extent permitted by applicable law, and among other things, (i) treat similarly situated employees on a substantially equivalent basis, taking into account all relevant factors, including duties, geographic location, tenure, qualifications and abilities, and (ii) target annual or other short-term periodic cash incentive opportunities that are not less than discriminate between employees who were covered by Sun Benefit Plans, on the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Scheduleone hand, and (iii) those covered by Ironman Benefit Plans, on the other compensation and employee benefits that are no less favorablehand, in at the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeEffective Time.
(b) From For purposes of eligibility, participation, vesting and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements benefit accrual (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
except (c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiaryi) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan or retiree medical plan, (ii) to the extent that such credit would result in a duplication of benefits, or (iii) under any plan that is grandfathered or frozen) under the Sun Benefit Plans, Ironman Benefit Plans and the New Benefit Plans, service with or credited by Sun and the Sun Subsidiaries or any of their respective predecessors to an employee of Sun and the Sun Subsidiaries as of immediately prior to the Effective Time who continues to be employed by Sun and the Sun Subsidiaries (including the Surviving Corporation and its Subsidiaries) after the Effective Time (each, a “Continuing Sun Employee”) and service with or credited by Xxxxxxx and the Ironman Subsidiaries or any of their respective predecessors to a Continuing Ironman Employee shall be treated as service with Sun to the same extent that such service was recognized taken into account under a similar plan, program, policy, agreement the analogous Sun Benefit Plan or arrangement of the Company or any Company Subsidiary, except that no such Ironman Benefit Plan prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee ProgramEffective Time.
(dc) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with With respect to each Company 2015 any Ironman Benefit Plan, Sun Benefit Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option or New Benefit Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Sun Employee participates that provides health or welfare benefits Continuing Ironman Employee first becomes eligible to participate on or after the Effective Time, and in which such employees did not participate prior to the Effective Time, Sun shall: (i) waive all limitations as to preexisting conditions, exclusions, exclusions and waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employeessuch employees and their eligible dependents, other than limitations applicable under the corresponding Company Employee Program or except to the extent that such preexisting condition limitationspre-existing conditions, exclusions, actively-at-work requirements and exclusions or waiting periods would not have been satisfied or waived apply under the comparable Company Employee Program analogous Sun Benefit Plan or Ironman Benefit Plan, as the case may be, and (ii) honor provide each such employee and his or her eligible dependents with credit for any paymentsco-payments and deductibles paid prior to the Effective Time (or, charges and expenses of Continuing Employees if later, prior to the time such employee commenced participation in the New Benefit Plan) under a Sun Benefit Plan or Ironman Benefit Plan (and their eligible dependentsto the same extent that such credit was given under the analogous Sun Benefit Plan or Ironman Benefit Plan) that were applied toward the in satisfying any applicable deductible and or out-of-pocket maximums requirements under the corresponding Company Employee Program in satisfying any applicable deductiblesIronman Benefit Plan, out-of-pocket maximums Sun Benefit Plan or co-payments under a corresponding Parent Employee Program during the calendar year New Benefit Plan in which such employee first become eligible to participate after the Closing occursEffective Time.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(id) Nothing in this Section 7.8 5.3 shall (i) confer any rights upon any Personbe construed as an amendment or other modification of, including any Continuing Employee or former employee of the Company or the Company Subsidiariestermination of, any Ironman Benefit Plan, Sun Benefit Plan or other than the Parties to this Agreement and their respective successors and permitted assignsemployee benefit plan or arrangement, (ii) constitute or create an employment agreement or create any limit the right in any Continuing Employee of Sun, Ironman or any of their respective subsidiaries to amend, terminate or otherwise modify any Ironman Benefit Plan, Sun Benefit Plan or other Person to any continued employment employee benefit plan or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiariesarrangement, (iii) constitute or be treated as an amendmentconstrued to create any third party beneficiary rights in any Sun Continuing Employee, modificationIronman Continuing Employee, adoption, suspension or termination of any Company Employee Program or any Parent Employee Programother current or former employee or service provider or any of their respective beneficiaries, or (iv) alter or be construed to limit the ability right of the Company, the Company Subsidiaries, Parent Sun or the Parent Sun Subsidiaries or Ironman or the Ironman Subsidiaries to amendterminate the employment of any Sun Continuing Employee, modify Ironman Continuing Employee, or terminate any benefit planother employee or service provider, programin each case, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent in accordance with the terms of such plan, program, policy, agreement or arrangementapplicable law.
Appears in 1 contract
Samples: Merger Agreement (Stratasys Ltd.)
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior Prior to the Closing Date, the Buyer shall make written offers of employment to all of the Transferred Employees, on terms substantially similar to the terms of their current employment, such employment to be taken into account for purposes of Parent’s obligations under this Section 7.8(a)effective as of, and subject to, the Closing. For the avoidance of doubt, nothing Nothing in this Agreement shall require Parent or any Parent Subsidiary limit the right of the Buyer to employ any Person, nor shall it alter terminate the at-will employment status of any Continuing EmployeeTransferred Employee following the Closing Date.
(b) From and after On the Company Merger Effective TimeClosing Date, Parent shall, and the Seller shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, terminate all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect Transferred Employees immediately prior to Closing and shall pay any and all Liabilities relating to such termination, including, without limitation, any and all payments and benefits due to such Transferred Employees pursuant to accrued salary and wages, pension, retirement, savings, health, welfare and other benefits and severance payments or similar payments that such Transferred Employees have earned or accrued, but which remain unpaid through the Company Merger Effective TimeClosing Date, including any earned wages in respect of accrued vacation.
(c) Parent shall, The Buyer shall make any filings and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service deliver any notices required in connection with the Company Transactions under the Worker Adjustment and the Company Subsidiaries Retraining Notification Act (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement“WARN Act”), or any retirement similar state law, so that Seller shall have no liability under the WARN Act or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under other similar law as a similar plan, program, policy, agreement or arrangement result of the Company or Transactions with respect to Transferred Employees. The Buyer shall be solely responsible for and agrees to indemnify, hold harmless and, at the option of the Seller to defend, the Seller from and against any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized Liability under the corresponding Company WARN Act or similar state law in connection with any Transferred Employee Programwho is found to have suffered an “employment loss” under the WARN Act.
(d) Without limiting The Seller and the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) Buyer agree that the Buyer has purchased substantially all of the Company Disclosure Schedule, property in the Subject Business and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of in connection therewith the Buyer will employ individuals who immediately prior to the Company Merger Effective Time as to Closing were employed in such trade or business by the Seller. Accordingly, the Seller shall on or before December 15, 2005 provide the Buyer will all necessary and reasonably requested payroll records for the calendar year which restrictions shall have lapsed as of immediately prior includes the Closing Date, the Buyer will send to the Company Merger Effective Timeappropriate Social Security Administration office a duly completed Form W-3 (and copies of the corresponding duly completed Form W-2) for each employee employed by the Buyer who had been employed by the Seller disclosing all wages and other compensation paid for such calendar year and Taxes withheld therefrom, and provided tha the Seller has delivered to the Buyer all necessary and reasonably requested payroll records, the right Seller will be relieved of the holder thereof responsibility to any payment in respect do so. It is the intent of the Change in Control Price (as defined in parties that the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt obligations of the Merger Consideration Buyer and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and Seller under this Section 6.1(d) shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined carried out in accordance with the formula set forth in Section 7.8(d)(ii) 5 of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted ShareRevenue Procedure 2004-53.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Employment Matters. (a) During The Buyer has offered, or shall contemporaneously with Closing offer, employment to the period commencing employees of the Sellers (or any of their Affiliates) listed in Section 3.19(a) of the Disclosure Schedule (except those employees indicated as working in India) on terms acceptable to the Buyer. Any such employee accepting a position with the Buyer hereunder shall be referred to as a “Transferred Employee”. As of the commencement of any Transferred Employee’s employment with the Buyer, such Transferred Employee’s employment with the applicable Seller (or its Affiliates) shall terminate. Nothing herein shall restrict Sellers from terminating the employment of any employee at or after the Closing if such employee’s employment with the Buyer does not commence on the Closing and ending on Date. The Sellers consent to the date that hiring of the Transferred Employees by the Buyer or any of its Affiliates and, except as assigned to the Buyer hereunder, waives in perpetuity any claims or rights arising under any non-competition, employment, assignment of inventions relating primarily to the Business or similar Contract to which any Transferred Employee is twelve (12) months a party after the Closing termination date of such employee’s employment by a Seller (or if earlier“Termination Date”).
(b) As promptly as practicable, but in no event later than such date as is required by Law, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and Sellers shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent pay to each Transferred Employee all wages and such Continuing Employee, a base salary or base wage rate that is not less than other compensation earned through the base salary or base wage rate provided to such Continuing Employee immediately prior to the ClosingTermination Date, (ii) target annual reimburse each Transferred Employee for all reimbursable expenses incurred by him or other short-term periodic cash incentive opportunities that are not less than her through the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure ScheduleTermination Date, and (iii) make all other compensation and employee benefits that are no less favorable, in the aggregate, than those provided payments as may be owed to such Continuing each Transferred Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations either under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honorContract, in accordance with their termsany Seller policy or practice or required by applicable law, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change except any accrued expense in control and termination agreements (including any change in control provisions therein) applicable respect to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Timesuch Transferred Employees.
(c) Parent As soon as practicable after the Closing Date, the Buyer shall, and or shall cause the Parent Subsidiaries its Affiliates to, provide credit for permit each Continuing Employee’s length of service with Transferred Employee to make a rollover from the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries Employee Benefit Plan in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) employee participated prior to the same extent that such service was recognized under Closing Date to a similar plan401(k) plan sponsored by the Buyer or one of its Affiliates after the Closing Date, program, policy, agreement or arrangement of provided the Company or any Company Subsidiary, except that no such prior service credit will amount to be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated rolled over is an eligible rollover distribution as set forth defined in Section 7.8(d)(i402(c)(4) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted ShareCode.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Employment Matters. (a) During the period commencing on Effective as of the Closing and ending Date, the Buyer shall cause the Companies (or their successors or assigns) to abide by the terms of the employment agreements of the Companies' employees set forth on the date that is twelve (12) months after Schedule 5.7(a), as they existed as of the Closing Date except as they may be modified in the ordinary course of business, of which true, complete and correct copies have been made available to the Buyer.
(or if earlier, b) The Buyer shall ensure that the date Companies' employees are allowed to participate in the Buyer's employee benefit plans under the same conditions and in the same manner as similarly situated employees of the Continuing Employee’s termination of employment with Buyer to the extent that such employees satisfy the Buyer's standard eligibility requirements.
(c) All service credited to each employee by Parent and the Parent Subsidiaries)Sellers through the Closing Date shall be recognized by the Buyer and its Affiliates for all purposes, Parent including for purposes of eligibility, vacation entitlement and vesting under any employee benefit plan provided by the Buyer or each applicable Affiliate of the Buyer for the benefit of such employees. With respect to any Plan which is a welfare benefit plan established or maintained by the Buyer or its Affiliates for the benefit of employees of the Sellers and their eligible dependents, the Buyer shall, and or shall cause each Parent Subsidiary, as applicable, its Affiliates to make a good faith effort to, waive any pre-existing condition exclusions, eligibility waiting periods, and evidence of insurability requirements (to the same extent such limitations, waiting periods, or evidence of insurability requirements would not have applied under the relevant Plan) and provide each individual who is an that any covered expenses incurred on or before the Closing Date in respect of the current plan year by any employee of the Company Sellers (or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as covered dependent of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”such an employee) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payments or limitations) after the Closing Date in respect of such current plan year, but only to the extent accurate and verifiable information related to such deductibles, offsets and co-insurance is timely provided to the Buyer by any employee who becomes an employee of the Buyer as a result of the consummation of the transactions contemplated by this Agreement. Notwithstanding anything herein to the contrary, no action taken under this Section 7.8(a). For 5.7(c) shall result in the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 Sellers or their respective Affiliates shall be treated as set forth in responsible for providing all notices and continuation coverage required under Section 7.8(d)(i) 4980B of the Company Disclosure Schedule, Code and Sections 601 through 608 of ERISA to all individuals who are or become "M&A Qualified Beneficiaries" (iias such term is defined in Treas. Reg. ss. 54.4980B-9) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right a result of the holder thereof to any payment in respect consummation of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of transactions contemplated by this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) For each participating employee of any of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees Companies who becomes an employee of the Company Buyer or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by its Affiliates as a result of the transactions contemplated by this Agreement, the Company shall, prior to the extent not prohibited by applicable LawClosing Date, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries Buyer shall, and agree to shall cause their applicable Affiliates respective service providers to, cooperate with each other act in good faith to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Personfacilitate, including any Continuing Employee or former employee as of the Company Closing Date, a reasonable transition of participation from the health care and dependent care flexible spending account plans maintained by Parent or its Affiliates to similar plans maintained by the Company SubsidiariesBuyer and its Affiliates on the other hand, other than including, with respect to each such participating employee, a transfer of both the Parties to this Agreement and their respective successors and permitted assignscontribution election made by such participating employee, as well as the amounts contributed (iibut not yet paid as reimbursements) constitute or create an employment agreement or create any right by such participating employee as of the Closing Date. In addition, in any Continuing Employee or any other Person to any continued employment or service connection with or for, or to receive any compensation or benefits from, such reasonable transfer described in the Company, the Company Subsidiariespreceding sentence, Parent shall provide the Buyer with a true, complete and correct record or amounts paid and/or reimbursed on behalf of each such participating employees under the relevant plans maintained by the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit its Affiliates during the ability of plan year in which the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementClosing Date occurs.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hub International LTD)
Employment Matters. (a) During the For a period commencing on of one year following the Closing and ending on Date, Acquiror shall or shall cause the date that is twelve (12) months after Surviving Corporation to maintain for employees who continue in the employ of Acquiror, the Surviving Corporation or any of their Subsidiaries following the Closing Date (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with ), (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate wages that is not are no less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closingfavorable than, (ii) target annual or other short-term periodic cash incentive opportunities variable/incentive/bonus pay programs that are not less than the target annual or other shortsubstantially similar in value (excluding any value attributable to equity and equity-term periodic cash incentive opportunities set forth on Section 7.8(abased compensation) of the Company Disclosure Scheduleto, and (iii) other compensation benefit plans and employee benefits arrangements that are no less favorablesubstantially comparable in the aggregate to, in the aggregateeach of clauses (i), than (ii) and (iii), those provided to such the Continuing Employee Employees immediately prior to the Closing. This Section 7.3 shall not limit the obligation of Acquiror to maintain any compensation arrangement or benefit plan that, providedpursuant to an existing contract, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall must be taken into account maintained for purposes a period longer than one year. No provision of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent be construed as a guarantee of continued employment of any Continuing Employee and this Agreement shall not be construed so as to prohibit Acquiror or any Parent Subsidiary of its Subsidiaries from having the right to employ any Person, nor shall it alter terminate the at-will employment status of any Continuing Employee, provided that any such termination is effected in accordance with applicable Law.
(b) From and after the Company Merger Effective TimeClosing, Parent shallAcquiror shall give each Continuing Employee full credit for all purposes (including for purposes of eligibility to participate, level of benefits, early retirement eligibility and shall cause each Parent Subsidiaryearly retirement subsidies, as applicablevesting and benefit accrual) under any employee benefit plans, to honorarrangements, in accordance with their termscollective agreements and employment-related entitlements (including under any applicable pension, all 401(k), savings, medical, dental, life insurance, vacation, long-service leave or other leave entitlements, post-retirement health and life insurance, termination indemnity, severance and or separation pay plans) provided, agreements and arrangementssponsored, and all written employment, severance, retention, incentive, change in control and termination agreements (including maintained or contributed to by Acquiror or any change in control provisions therein) applicable to employees of its Subsidiaries for such Continuing Employee’s service with the Company or any Company Subsidiary of its Subsidiaries, and in effect immediately prior with any predecessor employer, to the same extent recognized by the Company Merger Effective Timeor any of its Subsidiaries, except to the extent such credit would result in the duplication of benefits for the same period of service. Notwithstanding the foregoing, to the extent permitted under applicable Law, Acquiror shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan of Acquiror that is a defined benefit pension plan.
(c) Parent shall, and Acquiror shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as for each Continuing Employee and his or her dependents, any waiting period provision, payment requirement to preexisting conditionsavoid a waiting period, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting pre-existing condition limitations, exclusionslimitation, actively-at-work requirements requirement and any other restriction that would prevent immediate or full participation under the welfare plans of Acquiror or any of its Subsidiaries applicable to such Continuing Employee to the extent such waiting periods period, pre-existing condition limitation, actively-at-work requirement or other restriction would not have been satisfied or waived applicable to such Continuing Employee under the comparable terms of the welfare plans of the Company Employee Program and its Subsidiaries, and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums give full credit under the corresponding Company welfare plans of Acquiror and its Subsidiaries applicable to each Continuing Employee Program in satisfying any applicable deductibles, out-of-pocket maximums and his or co-her dependents for all co- payments under a corresponding Parent Employee Program during the calendar year in which and deductibles satisfied prior to the Closing occursin the same plan year as the Closing, and for any lifetime maximums, as if there had been a single continuous employer.
(gd) Prior to making any broad-based, written communications Subject to the employees foregoing provisions of this Section 7.3, nothing in this Agreement shall be interpreted as limiting the power of Acquiror or the Surviving Corporation to amend or terminate any specific Company Benefit Plan or any other individual employee benefit plan, program, Contract or policy. Nothing in this Agreement shall be interpreted as an amendment or other modification of any Company Benefit Plan or any benefit plan of Acquiror or any other employee benefit plan, program or arrangement or the establishment of any employee benefit plan, program or arrangement. Nothing herein shall be deemed to be a guarantee of employment for any Continuing Employee, or to restrict the right of the Company Surviving Corporation, Acquiror or any Company Subsidiary (other than of their respective subsidiaries to terminate or cause to be terminated the employment of any communications consistent in all material respects Continuing Employee at any time for any or no reason with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties without notice. Acquiror and the Company and the Company Subsidiaries shall, acknowledge and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing that all provisions contained in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee 7.3 are included for the sole benefit of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits fromAcquiror, the Company, the Surviving Corporation and their respective subsidiaries, and that nothing in this Section 7.3, whether express or implied, shall create any third party beneficiary or other rights (A) in any other Person, including any employees, former employees, any participant in any employee benefit plan, program or arrangement (or any dependent or beneficiary thereof) of Acquiror, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program Surviving Corporation or any Parent Employee Program, of their respective subsidiaries or (ivB) alter or limit the ability of to continued employment with Acquiror, the Company, the Company SubsidiariesSurviving Corporation, Parent or the Parent Subsidiaries to amend, modify any of their respective subsidiaries or terminate continued participation in any employee benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement program or arrangement.
Appears in 1 contract
Samples: Merger Agreement (ASC Holdco, Inc.)
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately Except for those employees disclosed in writing by Purchaser prior to the Company Merger Effective Time execution and who remains employed by Parent or any Parent Subsidiary as delivery of the Company Merger Effective Time (each, a “Continuing Employee” this Agreement and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(aSchedule 7.10(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided which shall be attached to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, this Agreement on or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing Date (the "Excluded Employees") (it being understood that employment will not be offered to any such Excluded Employees by Purchaser), Purchaser shall offer employment to all of the Acquired Business Employees on terms provided by Purchaser and with each such offer being contingent on completion of the Closing. Purchaser's obligation to employ such Acquired Business Employees shall be taken into account for purposes subject to such employees' compliance with the standard hiring practices of Parent’s obligations Purchaser. Each such employee who accepts such employment as of the Closing shall be referred to herein as a "Transferred Employee." MPAN, MHG, and Sellers shall not, directly or indirectly, from the date hereof solicit or induce any Acquired Business Employee (other than the Excluded Employees) to not accept or to terminate employment with Purchaser. Sellers shall terminate all Transferred Employees as of the Closing Date and shall pay to such Transferred Employees all unpaid compensation, as well as all earned benefits to which they are entitled under this Section 7.8(a)Sellers' employment policies and applicable Law. For As of the avoidance Closing Date, Sellers shall have paid all contributions which are due and required by the Benefit Plans and Sellers shall otherwise be compliant in all material respects with the terms of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeBenefit Plans and with applicable Laws.
(b) From and after the Company Merger Effective Time, Parent shall, and Purchaser shall cause each Parent Subsidiary, treat prior service with Sellers as applicable, service with Purchaser for purposes of eligibility to honor, in accordance with their terms, participate under all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Timeemployee benefit plans covering Transferred Employees.
(c) Parent shallAs soon as is practical after the Closing, MPAN, MHG, and Sellers shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or provide such employees an election to rollover their vested interests to Purchaser's defined contribution retirement plan; and (ii) rollover the full amount of the vested interests which the employees have elected to rollover, as soon as possible but not later than 6 months after the Closing Date, to the accounts of such service was not recognized employees under Purchaser's defined contribution retirement plan. Purchaser shall have no liability for any discontinuance, termination or other charges that may be due to any investment option or management providers or to any plan record keeping or other agents with respect to such termination and rollover of such employees' interests from Sellers' retirement plan(s), as the corresponding Company Employee Programcase may be, to Purchaser's retirement plan.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect Sellers agree to continue to employ each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and Excluded Employee for the avoidance period of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(iitime following Closing specified on Schedule 7.10(a) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect subject to each such Company 2015 Plan Restricted Share.
(e) Parent and Excluded Employee's consent), during which time Sellers shall direct each such Excluded Employee, as his or her full-time employment duty, to assist Purchaser in connection with the Company Acquired Business or otherwise as Purchaser may reasonably direct. For the period of time following Closing specified on Schedule 7.10(a), Purchaser shall take reimburse Sellers for the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible salary and out-of-pocket maximums under expenses authorized by Purchaser, and the corresponding Company Transition Support Benefits (as specified in Schedule 7.10(a)) of each such Excluded Employee Program in satisfying any applicable deductiblesand Sellers shall be responsible for all other employment-related costs of each such Excluded Employee, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursincluding benefits and severance compensation (if any).
(ge) Prior Purchaser agrees to making offer to each Transferred Employee (i) employment for a period of at least 60 days (subject to termination of any broad-basedTransferred Employee by Purchaser for cause), written communications (ii) salary that is no less than 85% of his or her current salary, and (iii) work at a primary location that is not more than 25 miles from the Transferred Employee's current primary location of employment (subject to work related travel). If Purchaser breaches any of its covenants in the preceding sentence of this Section 7.10(e), and, solely as a consequence of such breach, Sellers incur liability to any Transferred Employees for severance pay, Purchaser and GHV shall reimburse Sellers for payments made to any Transferred Employee in respect of such severance pay; provided, however, that the reimbursement amount shall not exceed an amount equal to 3 months of such Transferred Employee's salary. Notwithstanding anything to the employees of the Company or any Company Subsidiary (other than any communications consistent contrary contained elsewhere in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited sole and exclusive remedy for a breach by applicable Law, (i) provide Parent with a copy Purchaser of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i7.10(e) shall be the reimbursement provided for in the preceding sentence. Nothing in this Section 7.8 shall (i7.10(e) confer shall, however, create any rights upon in favor of any PersonPerson not a party hereto, including any Continuing Employee or former employee employees of the Company Acquired Business, or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create condition of employment for any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability employee of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementAcquired Business who is a Transferred Employee.
Appears in 1 contract
Samples: Asset Purchase Agreement (Genesis Health Ventures Inc /Pa)
Employment Matters. (a) During Until December 1, 2013, Buyer will cause the period commencing on Company to continue to provide the active employees of the Company or its Subsidiary with salary, wages, bonus opportunities, commission opportunities, if applicable, and benefits (excluding in all cases, transaction bonuses and equity-based compensation and benefits), which in the aggregate are at least substantially equivalent to the salary, wages, bonus opportunities, commission opportunities, if applicable, and benefits (with respect to benefits, as provided under the Employee Plans as set forth on, and as otherwise described in, Schedule 3.14(a)) (excluding in all cases, transaction bonuses and equity-based compensation and benefits) provided prior to the Closing and ending on Date by the date that is twelve (12) months after Company or its Subsidiary, taken as a whole. This Section 5.6 will not limit the Closing (or if earlier, the date obligation of the Continuing Employee’s termination Company or its Subsidiary or any successor or assign to maintain any Employee Plan that, pursuant to an existing Contract, must be maintained for a period longer than one year. No provision of this Agreement will be construed as a guarantee of continued employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an of any employee of the Company or any Company Subsidiary immediately prior its Subsidiary, and this Agreement will not be construed so as to prohibit the Company Merger Effective Time and who remains employed by Parent or its Subsidiary from having the right to terminate the employment of any Parent Subsidiary as employee of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeeits Subsidiary.
(b) From Each employee and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees former employee of the Company or any Company its Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length will be credited with his or her years of service with the Company and the Company Subsidiaries its Subsidiary (as well as service with and any predecessor employer of entities thereof) before the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level Closing Date under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent plan of Buyer and the Parent its Subsidiaries in which such Continuing providing benefits similar to those provided under an Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) Plan to the same extent that as such employee or former employee was entitled, before the Closing Date, to credit for such service was recognized under a similar plansuch Employee Plan; provided, program, policy, agreement or arrangement of that the Company or any Company Subsidiary, except that no such prior service credit foregoing will be required or provided not apply to the extent that (i) it results would result in a duplication of benefits, benefits or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior benefit accruals under defined benefit pension plans. With respect to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program plan year in which Buyer ceases to maintain any Continuing particular Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditionsPlan, exclusionseach employee will be given credit for amounts paid under such Employee Plan for purposes of applying deductibles, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, activelyco-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible payments and out-of-pocket maximums under as though such amounts had been paid in accordance with the corresponding Company Employee Program in satisfying any applicable deductiblesterms and conditions of the parallel plan, out-of-pocket maximums program or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursarrangement of Buyer or its Subsidiaries.
(gc) Prior to making any broad-based, written communications to the employees No provision of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, Section 5.6 (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider creates any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each third-party beneficiary or other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer rights for any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assignsits Subsidiary (including any beneficiary or dependent thereof), (ii) constitute or create constitutes an employment agreement or create an amendment to or adoption of any right in employee benefit plan of or by any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Companymember of Buyer, the Company Subsidiariesor its Subsidiary, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.or
Appears in 1 contract
Samples: Stock Purchase Agreement
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, As of the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries)each Closing, Parent shall, and Buyer shall cause each Parent Subsidiary, as applicable, to, Subsidiary transferred to Buyer at such Closing to provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent then employees of such Subsidiary as of the Company Merger Effective Time (each, a “Continuing "Subsidiary Employee” and collectively"), the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and aggregate employee benefits that are no not materially less favorable, in the aggregate, favorable than those provided by Buyer and Buyer's Affiliates to such Continuing their similarly situated employees. To the extent permitted under applicable laws and the employee benefit plans or arrangements of Buyer or its Affiliates in which any Subsidiary Employee immediately prior may be eligible to the Closingparticipate, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing Buyer shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing such Subsidiary Employee’s length 's period of service with the Company Subsidiary or predecessors thereof for all purposes in which time of service is applicable under such employee benefit plans or arrangements. To the extent permitted under applicable laws and the Company Subsidiaries (as well as service with any predecessor employer welfare benefit plans of the Company Buyer or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program its Affiliates in which any Continuing Subsidiary Employee participates that provides health or welfare benefits may be eligible to (i) participate, Buyer shall waive all limitations as to preexisting conditions, exclusions, exclusions and waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employeessuch Subsidiary Employee, other than limitations applicable those that were in effect and not satisfied as of the Closing Date with respect to such Subsidiary Employee under the corresponding Company any welfare benefit plan maintained for such Subsidiary Employee Program or immediately prior to the extent that such preexisting condition limitationsClosing Date. The provisions of this Section 5.2 shall not create, exclusionsin any Subsidiary Employee, actively-at-work requirements and waiting periods would not have been satisfied any rights to employment or waived under the comparable Company Employee Program and (ii) honor continued employment with Buyer or its Affiliates or any payments, charges and expenses right to specific terms or conditions of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursemployment.
(gb) Prior Seller shall retain all liabilities and obligations, whether arising before or after the Closing Date, with respect to making Subsidiary Employees under any broad-basedemployee benefit policies, written communications plans, arrangements, programs, practices or agreements maintained or contributed to by Seller or any of the Subsidiaries prior to the employees Closing Date. Seller will be responsible for making continuation coverage under Code Section 4980B and Sections 601-608 of the Company ERISA ("COBRA") available to any eligible employee of any Subsidiary and any eligible spouse or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy dependent of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments employee who experiences a "qualifying event," as defined in good faithCode Section 4980B(f)(3), before the Closing Date.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Univision Communications Inc)
Employment Matters. (a) During Subject to the rights of the Transferred Company at any time to terminate employment because of economic conditions generally or for cause, Buyer shall cause the Transferred Company or assigns to continue to employ the Transferred Employees who are not terminated for such reasons at substantially the same salaries and wages and with employee benefits which are no less favorable in the aggregate to the Transferred Employees than those in effect prior to the Closing Date for a period commencing on the Closing Date and ending on no earlier than the date that is twelve (12) months after first anniversary of the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeDate.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but Sellers do not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiarybelieve that, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Transferred Company Disclosure ScheduleMemorandum, and (ii) with respect any Transferred Employees will be entitled to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to receive any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding severance or other Taxes comparable benefit as a direct or other amounts required by Law to be withheld, in full satisfaction and release indirect result of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement. If, after the Closing Date, the Transferred Company shallterminates the employment of any Transferred Employee, then the Transferred Company shall pay to such terminated Transferred Employee severance or other benefits comparable to the extent not prohibited severance or benefits that other employees of Buyer, occupying a position comparable to that occupied by applicable Lawthe terminated Transferred Employee, would receive under Buyer's employment practices and policies or under Buyer's employee benefit plans.
(c) Until the Closing Date, Seller shall be responsible for complying with the WARN Act and, after the Closing Date, Buyer shall be responsible for complying with the WARN Act with respect to Transferred Employees.
(d) Buyer agrees to cause the Transferred Company to continue to maintain any Plans of the Transferred Company that currently provide life insurance, disability, medical or dental benefits or, alternatively, Buyer shall maintain comparable life insurance, disability, medical and dental plans that provide a level of benefits no less favorable than the level of benefits provided under the current Plans at a cost to the Transferred Employee no greater than the cost of the current Plans. In that connection, Buyer agrees that any such life insurance, disability, medical or dental plan will cover spouses and dependents of Transferred Employees who were participating in the Plans immediately prior to the Closing Date on substantially similar terms as such individuals were covered under the Plans. If Buyer elects to cause the Transferred Employees to be covered by benefit plans maintained by Buyer rather than continue the Plans, each Transferred Employee, (i) provide Parent with a copy shall be given service credit, for time employed by the Transferred Company, for the purpose of determining eligibility under the intended communication, plans maintained by Buyer; and (ii) give Parent a reasonable period of time will be given credit under the health plan maintained by the Buyer for the deductibles paid since January 1, 1999, under the health plan maintained by the Transferred Company. Additionally, Buyer shall cause any preexisting conditions restrictions under Buyer's health or other welfare benefit plan to review and comment be waived to the extent necessary to provide immediate coverage under Buyer's plan, unless subject to such restrictions on the communication and (iii) consider any such comments in good faithClosing Date under the Transferred Company's plans.
(he) During Buyer shall also cause the Interim PeriodTransferred Company to continue to maintain the 401(k) plan of the Transferred Company currently in force or shall permit the Transferred Employees to participate in a retirement plan of Buyer providing benefits no less favorable than those provided by the current 401(k) plan. Each Transferred Employee shall be given service credit, for time employed by the Parent Parties Transferred Company, for the purpose of determining eligibility and determining the Company and vested percentage of accounts under the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed 401(k) retirement plan maintained by this Section 7.8Buyer.
(if) Nothing in In addition to the foregoing, Buyer shall permit the Transferred Employees to participate, on such terms and conditions as Buyer may determine as are consistent with this Section 7.8 5.8, in any other employee benefit plan maintained by Buyer for the benefit of other comparable employees of Subsidiaries of Buyer (including, without limitation, Buyer's current Amended Medical Reimbursement Plan, Management Incentive Compensation Plan, Management Security Plan, 1996 Stock Option Plan, savings/profit sharing plans and defined benefit retirement plan).
(g) Each such Seller agrees that it shall (i) confer any rights upon any Person, including any Continuing cause the Transferred Company to pay to each Transferred Employee his or former employee her salary or comparable compensation which is accrued and owed as of the date on which such salary or other compensation is customarily paid occurring prior to the Closing Date. The Buyer shall cause the Transferred Company to pay all salaries and other compensation (including, but not limited to, bonuses, retirement payments, vacation pay or sick pay) payable after such date. Sellers shall not be responsible for any vacation pay, sick pay, bonuses or comparable payments that may have accrued but shall not have been payable prior to the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee Closing Date or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as claims by a Transferred Employee arising under an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any employee benefit plan, programwhether made before, policy, agreement on or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with after the terms of such plan, program, policy, agreement or arrangementClosing Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Florida Rock Industries Inc)
Employment Matters. (a) During the period commencing on the Closing and ending on As of the date that is twelve (12) months after hereof, all Employees are employed by the Closing (Company or if earlier, a Company Subsidiary. Prior to the date hereof, MMAC and its Affiliates have taken all necessary actions to cause each employment agreement, liability to pay 2017 cash incentive bonuses under any Benefit Plan (as set forth in Section 3.21(a) of the Continuing Employee’s termination of employment with Parent and the Parent SubsidiariesDisclosure Schedules), Parent shallrestrictive covenant agreement, and other agreement with any Employee that governs or relates to the employment or service engagement of any Employee with MMAC or any of its Affiliates to be assigned and/or transferred to the Company or a Company Subsidiary. Prior to the date hereof, MMAC, or its Affiliate (other than the Company or a Company Subsidiary), has transferred to the Company or a Company Subsidiary an amount in cash sufficient to pay all 2017 cash incentive bonuses as set forth in Section 3.21(a) of the Disclosure Schedule. Any amount of 2017 bonus designated in Section 3.21(a) of the Disclosure Schedule as “To Be Allocated” shall cause each Parent Subsidiarybe paid only upon the direction of Seller and shall be returned promptly to Seller upon the written request of Seller if not so paid. Notwithstanding the foregoing, IHS Employees shall remain employed by their IHS Employer prior to Closing.
(b) Section 3.21(b) of the Disclosure Schedules contains a list, as applicableof the dates specified on such schedules, to, provide of each individual person by job title who is an employee or individual independent contractor of MMAC or any of its Affiliates, including each such person who may be on a leave of absence, together with, as applicable (i) the name of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary legal entity employing such person as of the Company Merger Effective Time date of this Agreement, (each, a “Continuing Employee” and collectively, the “Continuing Employees”ii) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base person’s current annual salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closingand annual cash bonus opportunity, (iiiii) target annual such person’s total length of employment with MMAC and its Affiliates, including any other credited service that would affect calculation of years of services for purposes of benefit entitlement (including statutory notice or statutory severance pay), (iv) such person’s accrued but unused vacation, sick leave, and other short-term periodic cash incentive opportunities that are not less than paid time off under the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure ScheduleBenefit Plans, and (iiiv) other compensation and whether such employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, is on any approved or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes statutory leave of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shallabsence, and shall cause each Parent Subsidiaryif so, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to reason for the Company Merger Effective Timeabsence.
(c) Parent shall, and shall cause the Parent Subsidiaries Neither MMAC nor any of its Affiliates is a party to, provide credit for each Continuing Employeeor bound by, any collective bargaining or other agreement with a labor organization representing any of its Employees. There has not been, nor, to Seller’s length of service with the Company and the Company Subsidiaries (as well as service with Knowledge, has there been any predecessor employer of the Company threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor activity or dispute affecting MMAC or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Programits Affiliates.
(d) Without limiting the generality Each of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure ScheduleMMAC and its Affiliates is, and during the last six (ii6) years has been, in compliance in all material respects with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior all applicable Laws pertaining to the Company Merger Effective Time engagement of labor and employment practices, including Laws respecting terms and conditions of employment, wages and hours and overtime compensation, collective bargaining, unemployment insurance, workers’ compensation, equal employment opportunity, discrimination, immigration control and I-9 compliance, employee classifications as “exempt” or “non-exempt” under the Fair Labor Standards Act and analogous state and local Laws, classification of service providers as employees and independent contractors, safety and health, and the payment and withholding of Taxes. There are no material actions, suits, claims, investigations or other proceedings against MMAC or any of its Affiliates pending, or to which restrictions shall have lapsed as of immediately prior Seller’s Knowledge, threatened to the Company Merger Effective Timebe brought or filed, the right of the holder thereof to by or with any payment Governmental Authority or arbitrator in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance connection with the formula set forth in Section 7.8(d)(ii) employment or engagement of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Timeany current or former employee or independent contractor of MMAC or any of its Affiliates, including, without interest and less limitation, any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, equal pay or any other employment related matter arising under applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted ShareLaws.
(e) Parent and the Company shall take the actions described in Section 7.8(e) Neither MMAC nor any of the Company Disclosure Schedule.
(f) Parent shall useits Affiliates has, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year 180-day period preceding the date hereof, effectuated a “plant closing” or a “mass lay-off” (as such terms are defined in which the Closing occurs.
(g) Prior to making any broad-basedWorker Adjustment and Retraining Notification Act of 1988, written communications to the employees of the Company or any Company Subsidiary similar state or local law (other than the “WARN Act”), in either case affecting any communications consistent in all material respects with prior communications made by the Company site of employment or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy facility of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee MMAC or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementits Affiliates.
Appears in 1 contract
Samples: Master Transaction Agreement (Mma Capital Management, LLC)
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlierBecause all Hotel employees will be Select employees, the date of the Continuing Employee’s termination of this Agreement may result in a termination of their employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, Select; provided, however, that no post-retirement medicalSelect, equity-based compensationupon obtaining express written approval from Owner, deferred compensation, may make offers of employment to any management personnel then employed at the Hotel for employment at other Hyatt Place Hotels or retention, change-in-control hotels managed or other special operated by Select or non-recurring compensation or benefits provided prior its Affiliates. If Owner does not provide approval pursuant to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a)15.1, Owner shall make or cause a new manager to make offers of employment to all such management personnel. For the avoidance Select agrees that, immediately upon receiving notice of doubt, nothing in termination of this Agreement shall require Parent or any Parent Subsidiary to employ any Personfrom Owner, nor shall it alter the at-Select will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Timetake whatever steps are necessary, Parent shall, and shall cause each Parent Subsidiary, as applicableif any, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service comply with the Company and WARN Act. In the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that event (i) it results in a duplication of benefits, or Owner gives Select less than 75 (iiseventy-five) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) days notice of the Company Disclosure Scheduleeffective date of termination of this Agreement, and (ii) Owner is terminating this Agreement for some reason other than Select’s breach of this Agreement or Select’s Grossly Negligent Acts or Willful Misconduct, Owner agrees to indemnify, defend and hold Select, and each of Select’s shareholders, officers, directors, employees and agents, completely free and harmless of and from any and all manner of liability, claim, loss, damage or expense of any kind or nature concerning Hotel employees that arise from Owner’s termination of this Agreement (notwithstanding the continuation of their employment at the Hotel as employees of Owner or a Successor Manager), including, without limitation, accrued payroll, accrued benefits such as vacation pay and sick days, any multi employer withdrawal liability, and any liabilities or obligations under WARN and other requirements applicable to severance or termination of employment (including severance obligations only to the extent any severance payments are made consistent with Select’s standard employment policies and such employees are not rehired by Owner or new manager) and other employment liabilities up to and including the date of termination of such employee as a Select employee. Notwithstanding anything contained herein to the contrary, Owner shall not be obligated to make any severance payments for employees rehired by Owner or new manager. Owner shall take reasonable steps to prevent Select from incurring any foreseeable losses under the WARN Act with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted ShareHotel employees.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Master Agreement (Equity Inns Inc)
Employment Matters. (a) During Buyer will offer employment, as of the period commencing close of business on the Closing Date, on an at-will basis, to each employee (i) of any Selling Company who is actively and ending on exclusively employed in the date that is twelve (12) months after the Closing (or if earlier, the date operation of the Continuing Employee’s termination of employment with Parent Business and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an not listed on Schedule 6.5(a)(i) and (ii) to each employee of the any Selling Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time otherwise listed on Schedule 6.5(a)(ii) (each, a an “Continuing Active Table of Contents Employee” and collectively”), the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those the compensation and benefits that have been provided to such Continuing Employee persons by the Selling Companies immediately prior to the Closing, provided, however, that no postexcept for changes in the costs of benefits required by third-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to party providers of such benefits. An Active Employee who accepts an offer of employment as of the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Date with Buyer is referred as a “Hired Active Employee.”
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a)the foregoing, (i) cash incentive bonuses for calendar year 2023 Buyer shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all any preexisting condition limitations as otherwise applicable to preexisting conditionsemployees and their eligible dependents under any plan of Buyer or its subsidiaries that provides health benefits in which Hired Active Employees may be eligible to participate following the Closing Date, exclusions, waiting periods and service conditions other than any limitations that were in effect with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable such employees as of the Closing Date under the corresponding analogous Company Employee Program or to the extent that such preexisting condition limitationsPlan, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any paymentsdeductible, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible co-payment and out-of-pocket maximums incurred by the Hired Active Employees and their eligible dependents under the corresponding Company Employee Program 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 applicable deductibles, co-payments or out-of-pocket maximums or under health plans of Buyer and its subsidiaries in which they are eligible to participate after the Closing Date in the same plan year in which such deductibles, co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broador out-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiariesof-pocket maximums were incurred, (iii) constitute waive any waiting period limitation or evidence of insurability or at work requirement that would otherwise be treated as applicable to a Hired Active Employees and his or her eligible dependents on or after the Closing Date, in each case to the extent such employee or eligible dependent had satisfied any similar limitation or requirement under an amendmentanalogous Company Plan prior to the Closing Date, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit with respect to any Company Plan, recognize the ability service with the Company prior to the Closing (based upon the Company’s service records as provided to Buyer) of the CompanyHired Active Employees; provided, the Company Subsidiarieshowever, Parent or the Parent Subsidiaries to amendthat such recognition shall not result in a duplication of benefits, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent and (iv) credit Hired Active Employees with the terms applicable amount of such plan, program, policy, agreement or arrangementRolled-Over Accrued Vacation pursuant to Section 5.8(b).
Appears in 1 contract
Samples: Master Asset Purchase Agreement (Franklin Covey Co)
Employment Matters. (a) During For the one (1) year period immediately following the Closing Date (or such shorter period as the applicable employee remains employed with the Company), Buyer shall use commercially reasonably efforts to ensure that the Company’s employees (except for the Member Parties) will receive salary or wage rate opportunities that are substantially the same as the salary or wage rate opportunities provided to them under the terms of their employment with the Company in effect immediately prior to the Closing Date. For the period commencing beginning on the Closing Date and ending on the date that is twelve (12) months after one-year anniversary of the Closing (or if earlier, such period as the date of applicable employee remains employed with the Continuing Employee’s termination of employment with Parent and the Parent SubsidiariesCompany), Parent shallBuyer shall use commercially reasonably efforts to ensure that the Company’s employees will receive retirement and welfare, fringe and shall cause each Parent Subsidiaryother employee benefits which are substantially similar in the aggregate to the employee benefits (excluding defined benefit pension plan benefits, as applicableretiree welfare benefits, to, provide each individual who is an employee of equity and change in control benefits) that are provided to them by the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of Closing Date. In addition to the Company Merger Effective Time (eachforegoing, a “Continuing Employee” and collectivelyfor the period beginning on the Closing Date, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing EmployeeCompany’s employees, a base salary or base wage rate that is not less other than the base salary or base wage rate provided Members, shall be eligible to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities participate in stock compensation plans that are not less than generally available to Buyer’s employees and will participate on the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parentsame basis as Buyer’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeeemployees.
(b) From and after the Company Merger Effective TimeClosing Date, Parent shall, and Buyer shall cause each Parent Subsidiary, as applicable, use commercially reasonably efforts to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions thereini) applicable to ensure that the Company’s employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide receive credit for each Continuing Employee’s length of prior service with the Company and the Company Subsidiaries (as well as service with or any predecessor employer of the Company or any Company Subsidiaryentities) for purposes of eligibility, vesting participation, vesting, seniority and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate levels of benefits (but not (A) for purposes of any benefit accrual accruals under any defined benefit pension plan, (B) for purposes of any plan, program or arrangement that provides retiree welfare benefits, (C) for purposes of any plan under which similarly situated employees of Buyer and its Affiliates do not receive service credit for prior service or (D) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results would result in a duplication of benefits), under any employee benefit or compensatory plan, program or arrangement of Buyer, the Company or any of their respective Affiliates in which the Company’s employees are eligible to participate; (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share ensure that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding pre-existing conditions or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusionseligibility waiting periods, actively-at-work requirements and waiting periods would not have been satisfied or required physical examinations under any welfare benefit plans of Buyer, the Company or any of their respective Affiliates will be waived under with respect to the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (Company’s employees and their eligible spouses and dependents, to the extent waived or satisfied under a corresponding plan of the Company in which the applicable Company employee participated; and (iii) ensure that were applied toward the deductible Company’s employees and their eligible spouses, dependents and beneficiaries will receive credit for the plan year in which the Closing Date occurs towards applicable deductibles, coinsurances and annual out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which limits for expenses incurred prior to the Closing occursDate. Notwithstanding anything to the contrary, any balances available before the Closing Date to the Company employees under any flexible spending accounts shall remain available to such employees for qualified benefits payable after the Closing Date.
(gc) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent Nothing in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company whether express or implied, shall: (i) give rise to any rights, claims, benefits, causes of action or remedies, including any right to employment or continued employment for any period or terms of employment, of any nature whatsoever, to the extent not prohibited by applicable LawCompany’s employees or other employee, (i) provide Parent with a copy former employee or individual independent contractor of the intended communicationCompany, any representative of any such employee, or any third-party whatsoever (including any Governmental Entity), (ii) give Parent a reasonable period subject to compliance with Section 7.7(a), be interpreted to prevent or restrict Buyer or its Affiliates from modifying or terminating the employment or terms of time to review and comment on employment of any of the communication and Company’s employee, the amendment or termination of any Benefit Plan or other employee benefit or compensation plan, program or arrangement, after the Closing Date or (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension amendment or termination other modification of any Company Employee Program Benefit Plan or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any other employee benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement plan or arrangement.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Liberated Syndication Inc.)
Employment Matters. (a) During the For a period commencing on of one year following the Closing and ending on Date (the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries“Continuation Period”), Parent Buyer shall, and or shall cause each Parent Subsidiary, as applicable, the Surviving Corporation and its Subsidiaries to, provide each individual to employees who is an employee continue in the employ of Buyer, the Company Surviving Corporation or any Company Subsidiary immediately prior to of their Subsidiaries following the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time Closing Date (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a an annual base salary or base wage rate that is not less than at least equal to the annual base salary or base wage rate provided to such Continuing Employee as of immediately prior to the ClosingClosing Date, (ii) target annual or other short-term periodic cash incentive compensation target opportunities (not including equity or equity-based incentives or specific performance goals) that are not less than at least the same as the incentive compensation target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) provided to such Continuing Employee as of immediately prior to the Company Disclosure ScheduleClosing Date, and (iii) other compensation and employee benefits (excluding change in control payments, severance, retention payments, or other similar non-recurring compensation) that are no less favorable, substantially comparable in the aggregate, than those aggregate to the employee benefits provided to such Continuing Employee by the Company immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeDate.
(b) From and after the Closing, with respect to any “employee benefit plans” as defined in Section 3(3) of ERISA provided, sponsored, maintained or contributed to by Buyer or any of its Subsidiaries in which a Continuing Employee is eligible to participate, each such Continuing Employee’s service with the Company Merger Effective Timeshall be treated as service with Buyer or any of its Subsidiaries for purposes of determining eligibility to participate, Parent shalllevel of benefits and vesting (but, and shall cause each Parent Subsidiaryexcept for purposes of vacation benefits or any severance plan, as applicable, to honor, in accordance not for benefit accrual) for such Continuing Employee’s service with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any of its Subsidiaries, and with any predecessor employer, to the same extent recognized by the Company Subsidiary and in effect or any of its Subsidiaries as of immediately prior to the Closing under a comparable Company Merger Effective TimeBenefit Plan, except to the extent such credit would result in the duplication of benefits for the same period of service. Notwithstanding the foregoing, to the extent permitted under applicable Law, Buyer shall not be required to provide credit for such service for benefit accrual purposes under any employee benefit plan of Buyer that is a defined benefit pension plan.
(c) Parent shall, With respect to any health and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, welfare plan maintained by Parent and the Parent Buyer or its Subsidiaries in which such any Continuing Employee is eligible to participate on or after the Closing Date, Buyer shall use its commercially reasonable efforts to (but not i) waive for purposes each Continuing Employee and his or her dependents, any waiting period provision, payment requirement to avoid a waiting period, pre-existing condition limitation, actively-at-work requirement and any other restriction that would prevent immediate or full participation under the welfare plans of Buyer or any benefit accrual under any defined benefit pension plan) of its Subsidiaries applicable to such Continuing Employee to the same extent that such service waiting period, pre-existing condition limitation, actively-at-work requirement or other restriction was recognized waived under a similar plan, program, policy, agreement or arrangement the terms of any analogous welfare plans of the Company or any Company Subsidiary, except that no such and its Subsidiaries prior service credit will be required or provided to the extent that (i) it results in a duplication of benefitsClosing Date, or and (ii) such service was not recognized credit each Continuing Employee for any co-payments, deductibles and other out-of-pocket expenses paid prior to the Closing Date under the corresponding terms of any analogous Company Employee ProgramBenefit Plan in satisfying any applicable co-payment, deductible or out-of-pocket requirements for the plan year in which the Closing Date occurs.
(d) Without limiting Prior to the generality of Section 7.8(a)Closing Date, the Company shall take all actions that may be necessary or appropriate to cause to terminate (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Scheduleday immediately preceding the Closing Date, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Qualified Retirement Plan as in effect on (the date of this Agreement“Company 401(k) that shall Plan”) unless not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days prior to the Closing Date, Buyer requests that the Company not terminate the Company 401(k) Plan and (ii) as of immediately following the Closing, each Company Merger Effective TimeBenefit Plan set forth in Section 8.4(d) of the Disclosure Schedule, without interest unless, not later than five (5) Business Days prior to the Closing Date, Buyer requests that the Company not terminate any such Company Benefit Plan. The Company agrees that it shall take all necessary and less legally permissible actions to allow any applicable withholding Continuing Employee with an account balance in the Company 401(k) Plan on the Closing Date to rollover his or other Taxes or other amounts required her entire account balance (including any participant loans) to the Section 401(k) plan sponsored by Law Buyer (the “Buyer 401(k) Plan”). As soon as reasonably practicable following the Closing Date, Buyer shall cause the Buyer 401(k) Plan to be withheldaccept a direct trustee-to-trustee transfer of the full value of the accounts (including participant loans) of such Continuing Employee from the Company 401(k) Plan. When conducting the trustee to trustee transfer from the Company 401(k) Plan to the Buyer 401(k) Plan, in full satisfaction the Company and release of any and all remaining rights Buyer will cooperate with respect to each such Company 2015 Plan Restricted Sharethe asset mapping or in-kind transfer (as applicable).
(e) Parent and Five days prior to the Closing Date, the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, will provide a true and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the complete schedule indicating how many employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made of its Subsidiaries have had their employment terminated by the Company or Parentits Subsidiaries during the preceding 90-day period (or such other applicable period, if longer) pertaining to compensation or benefits matters that are affected at each facility, site of employment and operating unit of the Company and its Subsidiaries, which schedule has been updated by the transactions contemplated by this Agreement, Company as of the Company shall, Closing Date to the extent not prohibited by applicable Law, necessary.
(f) The parties hereto acknowledge and agree that nothing contained in this Section 8.4(f) (i) provide Parent with a copy of the is intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 or shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, Person other than the Parties to this Agreement parties hereto and their respective successors and permitted assigns, including any current or former Service Provider, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, (ii) shall establish or constitute an amendment, termination or create modification of, or an employment undertaking to establish, amend, terminate or modify, any benefit plan, program, agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiariesarrangement, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) shall alter or limit the ability of Buyer or any of its Subsidiaries (or, following the CompanyEffective Time, the Company Surviving Corporation or any of its Subsidiaries, Parent or the Parent Subsidiaries ) to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of themthem or (iv) shall create any obligation on the part of Buyer or its Subsidiaries (or, consistent with following the terms of such planEffective Time, program, policy, agreement the Surviving Corporation or arrangementits Subsidiaries) to employ or engage any Service Provider for any period following the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (V F Corp)
Employment Matters. (a) During From and after the period commencing on Closing, Buyer shall, or shall cause the Closing Final Surviving Corporation to, assume, honor and ending on perform in accordance with their terms all Company Benefit Plans, including, without limitation, all employment, severance, bonus (including the date Company’s 2018 Corporate Bonus Plan pursuant to the terms of Section 7.2(d) below), transaction, incentive and other compensation arrangements with any employee or independent contractor of the Company or its Subsidiaries, and references therein to the Company shall thereafter be deemed references to the Final Surviving Corporation. Buyer hereby acknowledges and agrees that is twelve the transactions contemplated by this Agreement shall constitute a “Change in Control” or “Change of Control” for purposes of the Company Benefit Plans, including, without limitation, all employment, severance, bonus, transaction, incentive and other compensation arrangements with any employee or independent contractor of the Company or its Subsidiaries.
(12b) months From and after the Closing (or if earlier, until the date first anniversary of the Continuing Employee’s termination of employment with Parent Closing Date, Buyer and the Parent Subsidiaries)its Affiliates shall provide, Parent shall, and or shall cause the Final Surviving Corporation to provide, to each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time Closing who continues in employment with Buyer and who remains employed by Parent or any Parent Subsidiary as of its Affiliates (including the Company Merger Effective Time Final Surviving Corporation) immediately following the Closing (each, a “Continuing Employee” and collectivelysuch employees, the “Continuing Employees”), for so long as the Continuing Employee remains employed by Buyer or any of its Affiliates (including the Final Surviving Corporation) with during such period, (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate regular hourly wage, as applicable, that is not less than the base salary or base wage rate regular hourly wage, as applicable, provided to such Continuing Employee immediately prior to the ClosingClosing Date, (ii) target annual bonus or other short-term periodic cash incentive opportunities that are not no less favorable than the target annual bonus or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) provided to such Continuing Employee immediately prior to the Closing Date (provided, however, that in light of the Company Disclosure Schedulebonus amount due to Continuing Employees upon a Corporate Transaction under the Company’s 2018 Corporate Bonus Plan, there shall be no requirement that Buyer or its Affiliates cause the Final Surviving Corporation to provide any Continuing Employee with any further bonus or incentive opportunity for the 2018 fiscal year) and (iii) other compensation employee and employee fringe benefits (including, health, welfare, retirement and severance benefits) that are no less at least as favorable, in the aggregate, than as those provided to such Continuing Employee immediately prior to the Closing.
(c) Effective as of the Closing and while each Continuing Employee remains employed by Final Surviving Corporation, providedBuyer or an Affiliate of Buyer, however, that no post-retirement medical, equity-based compensation, deferred compensationBuyer and its Affiliates shall recognize, or retentionshall cause the Final Surviving Corporation to recognize, change-in-control or other special or non-recurring compensation or benefits provided to the same extent recognized by the Company prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubtClosing, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any each Continuing Employee.
(b) From and after ’s employment or service with the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees current or former Affiliate of the Company or any Company Subsidiary and in effect immediately predecessor of the Company) prior to the Company Merger Effective Time.
(c) Parent shallClosing for all purposes, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) including for purposes of eligibilitydetermining, as applicable, eligibility for participation, vesting and entitlement of the Continuing Employee under all employee benefit level under plans maintained by the Final Surviving Corporation, Buyer or an Affiliate of Buyer, including vacation plans or arrangements, retirement plans and any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate welfare plans (but not for purposes of any benefit accrual under any employee benefits plan of Buyer or its Affiliates that is a defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary), except that no such prior service credit will be required or provided to the extent that (i) it results such recognition would result in a duplication of benefits. In addition, and without limiting the generality of the foregoing, effective as of the Closing and thereafter while each Continuing Employee remains employed by Final Surviving Corporation, Buyer or an Affiliate of Buyer, Buyer and its Affiliates shall, or shall cause the Final Surviving Corporation to use commercially reasonable efforts to, (i) cause any pre-existing conditions or limitations, eligibility waiting periods, actively at work requirements, evidence of insurability requirements or required physical examinations under any health or similar plan of the Final Surviving Corporation, Buyer or an Affiliate of Buyer to be waived with respect to Continuing Employees and their eligible dependents, except to the extent that any waiting period, exclusions or requirements still applied to such Continuing Employee under the comparable Company Benefit Plan in which such Continuing Employee participated immediately before the Closing, and (ii) fully credit each Continuing Employee with all deductible payments, co-payments and other out-of-pocket expenses incurred by such service was not recognized Continuing Employee and his or her covered dependents under the corresponding medical, dental, pharmaceutical or vision benefit plans of the Company prior to the Closing during the plan year in which the Closing occurs for the purpose of determining the extent to which such Continuing Employee Programhas satisfied the deductible, co-payments, or maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for such plan year under any medical, dental, pharmaceutical or vision benefit plan of the Final Surviving Corporation, Buyer or an Affiliate of Buyer, as if such amounts had been paid in accordance with such plan.
(d) Without limiting To the generality of Section 7.8(a)extent such amounts are not paid by Company prior to the Closing, (i) cash incentive bonuses for calendar year 2023 immediately following the Closing, Buyer shall, or shall be treated as cause the Final Surviving Corporation to, pay the bonus amounts set forth in Section 7.8(d)(ion Schedule 7.2(d) pursuant to the “Corporate Transaction Provisions” of the Company Disclosure Schedule, and Company’s 2018 Corporate Bonus Plan (iitriggered by the Merger) with respect to each of the Company’s employees who were employed by the Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to Closing, which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and payments shall be settled paid in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) terms of the Company’s 2018 Corporate Bonus Plan (the “2018 Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted ShareBonus Payments”).
(e) Parent The Company and Buyer acknowledge and agree that all provisions contained in this Section 7.2 are included for the sole benefit of Buyer and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall useCompany, and shall cause the Parent Subsidiaries to usethat nothing in this Agreement, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health whether express or welfare benefits to implied (i) waive all limitations shall be treated as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, an amendment or other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses modification of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (Benefit Plan or other than any communications consistent in all material respects with prior communications made by the Company employee benefit plan, agreement or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communicationother arrangement, (ii) give Parent a reasonable period shall limit the right of time Buyer, the Company or their respective Affiliates to review and comment on amend, terminate or otherwise modify any Company Benefit Plan or other employee benefit plan, agreement or other arrangement following the communication and Closing Date, or (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties Person who is not a party to this Agreement and their respective successors and permitted assigns(including any equity holder, (ii) constitute any current or create an employment agreement former director, officer, employee or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability independent contractor of the Company, the or any participant in any Company Subsidiaries, Parent Benefit Plan or the Parent Subsidiaries to amend, modify or terminate any other employee benefit plan, program, policy, agreement or other arrangement at (or any time assumeddependent or beneficiary thereof)), establishedany right to continued or resumed employment or recall, sponsored any right to compensation or maintained by benefits, or any third-party beneficiary or other right of them, consistent with the terms of such plan, program, policy, agreement any kind or arrangementnature whatsoever.
Appears in 1 contract
Employment Matters. Following the Effective Time, Parent, in its sole discretion, will either (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing continue (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to continue) to maintain the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary Employee Benefit Plans on substantially the same terms as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
, or (b) arrange for each participant (including, without limitation, all dependents) in the Employee Benefit Plans (the “Company Participants”) to participate in a substantially similar plans or arrangements, as determined on a plan-by-plan or arrangement-for-arrangement basis, of Parent or its applicable subsidiary (“Parent Plans”), or (c) a combination of clauses (a) and (b) so that each Company Participant shall have benefits that are substantially similar in the aggregate to benefits provided to similarly situated employees of Parent shallunder Parent Plans and in each case at least equivalent to the benefits provided to each the Company Participant under the Employee Benefit Plans prior to the Effective Time. For purposes of determining eligibility to participate, vesting and shall cause entitlement to benefits where length of service is relevant (including for purposes of vacation accrual) under Parent Plans and other benefit arrangements of Parent (excluding a defined benefit plan), to the extent the Company Participants participate in the Parent Subsidiaries toPlans and other benefit arrangements of Parent following the Closing Date, provide (i) each the Company Participant will receive credit for each Continuing Employee’s length purposes of eligibility to participate and vesting under such for years of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiaryof its subsidiaries or predecessors) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) prior to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure ScheduleClosing Date, and (ii) with respect Parent will cause any and all pre-existing condition limitations, eligibility waiting periods and evidence of insurability requirements under any Parent Plans that are group health plans in which such the Company Participants will participate to each Company 2015 Plan Restricted Share that is issued be waived and outstanding as of immediately will provide credit for any co-payments and deductibles prior to the Company Merger Effective Time as to which restrictions shall have lapsed as Closing Date for purposes of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductiblesdeductible, out-of-pocket maximums or co-payments similar requirements under a corresponding Parent Employee Program during the calendar year in which any such plans that may apply after the Closing occursDate.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Merger Agreement (Cytyc Corp)
Employment Matters. (a) During Parent shall cause each Employee to receive full credit for service with Seller or any of its Subsidiaries prior to the period commencing on Effective Time for purposes of any waiting period, vesting, eligibility and benefit entitlement (but excluding benefit accruals) under any employee benefit plan, program or arrangement established or maintained by Parent, the Closing and ending on the date that is twelve Surviving Corporation or any of their respective Subsidiaries (12collectively, each a “Parent Entity”) months under which such Employee may be eligible to participate from or after the Closing Effective Time to the same extent recognized by Seller or any of its Subsidiaries under an analogous Benefit Plan immediately prior to the Effective Time (except to the extent that it would result in a duplication of benefits).
(b) With respect to the welfare benefit plans, programs and arrangements maintained, sponsored or if earlier, contributed to by a Parent Entity (the date of the Continuing Employee’s termination of employment with “Parent and the Parent SubsidiariesPlans”), Parent shall, and shall to the event it may do so, waive, or cause each the relevant Parent SubsidiaryEntity to waive, as applicableany pre-existing condition exclusions, toevidence of insurability provisions, provide each individual who is an employee waiting period requirements or any similar provision under any of the Company or any Company Subsidiary immediately Parent Plans. Further, Employees shall be eligible to receive credit under the Parent Plans for the 2012 calendar year towards applicable deductibles and annual out-of-pocket limits for expenses incurred under the corresponding Seller medical plan during the 2012 calendar year but prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shallNothing contained in this Section 5.21 will create any third party beneficiary rights in any Person not a party hereto, and shall cause the Parent Subsidiaries toincluding any Employee or beneficiary or dependent thereof. Nothing contained in this Section 5.21, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company express or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a)implied, (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Scheduleconstrued to establish, and (ii) with respect to each Company 2015 amend or modify any Benefit Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes benefit plan, program or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communicationarrangement, (ii) give require a Parent a reasonable period of time Entity to review and comment on the communication and (iii) consider continue any such comments in good faith.
(h) During the Interim PeriodBenefit Plan or other benefit plan, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each program or other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or forarrangement, or to receive any compensation prevent the amendment, modification or benefits from, termination thereof following the Company, the Company Subsidiaries, Parent or the Parent SubsidiariesEffective Time, (iii) constitute guarantee employment for any period of time or be treated as an amendmentpreclude the ability of a Parent Entity to terminate any employee for any reason, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter shall obligate any Parent Entity to provide an Employee with any equity or limit the ability of the Companyequity-based awards or compensation or any other benefits, the Company Subsidiaries, including without limitation any benefit under any Parent Plan or the Parent Subsidiaries to amend, modify or terminate any other employee benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement program or arrangement.
Appears in 1 contract
Samples: Merger Agreement (Ii-Vi Inc)
Employment Matters. (a) During Buyer shall provide each Transferred Employee who remains employed by the period commencing on Company or a Company Subsidiary with (i) base salary and wages substantially comparable to base salary and wages being provided to such Transferred Employee immediately prior to the Closing Date and ending on (ii) employee benefits that are substantially comparable to the date that is twelve employee benefits provided to similarly-situated employees of Buyer and Buyer’s Subsidiaries employed in similar geographic regions.
(12b) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent Buyer shall, and or shall cause each Parent Subsidiary, as applicable, the Company and its Subsidiaries and Affiliates to, provide to each individual Transferred Employee who is remains employed by the Company or a Company Subsidiary full credit for such Transferred Employee’s service with Seller, the Company, a Company Subsidiary or any of their respective Affiliates prior to the Closing for purposes of eligibility and vesting under any benefit plan (except with respect to equity compensation plans and programs) in which such Transferred Employee participates on or following the Closing to the same extent recognized by Seller, the Company, any Company Subsidiary or any of their respective Affiliates immediately prior to the Closing; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Buyer shall, or shall cause the Company, a Company Subsidiary or an Affiliate of Buyer, the Company or a Company Subsidiary to use commercially reasonable efforts to: (i) waive any limitation on health and welfare coverage of such Transferred Employees due to pre-existing conditions, waiting periods, active employment requirements, and requirements to show evidence of good health under any applicable health and welfare plan of Buyer, the Company, any Company Subsidiary or any their respective Affiliates but only to the extent such limitations were waived under a similar benefit plan of the Company, a Company Subsidiary or Seller or any of their respective Affiliates and (ii) credit each such Transferred Employee with all deductible payments, co-payments and co-insurance paid by such employee under any benefit plan of the Company, any Company Subsidiary, Seller or any of their respective Affiliates prior to the Closing Date during the year in which the Closing occurs for the purpose of determining the extent to which any such employee has satisfied any applicable deductible and whether such employee has reached the out-of-pocket maximum under any benefit plan of Buyer, the Company, any Company Subsidiary or any Affiliate of Buyer, the Company or any Company Subsidiary immediately prior to for such year. Buyer shall recognize and credit, and cause the Company Merger Effective Time or a Company Subsidiary to recognize and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectivelycredit, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent vacation days and paid time off accrued by such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided Transferred Employees prior to the Closing but only to the extent such accruals are included in the Financial Statements or disclosed in the statement delivered to Buyer in accordance with the immediately following sentence. On or prior to the third (3rd) Business Day preceding the Closing Date, Seller shall be taken into account for purposes deliver to Buyer a statement showing the unpaid vacation, paid time off, sick leave and other paid leave of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeTransferred Employees.
(bc) From and after Effective as of the Closing Date, each Transferred Employee shall cease participation in any Employee Benefit Plan that is not a Company Merger Effective Time, Parent Plan. Buyer shall, and or shall cause each Parent Subsidiarythe Company, as applicable, a Company Subsidiary or any of their respective Affiliates to honor, honor in accordance with their terms, all severance Company Plans.
(d) From and separation pay plansafter the Closing, none of Buyer, the Company, any Company Subsidiary or any of their Affiliates shall have any material liability with respect to any Employee Benefit Plan, other than the Company Plans. Before the Closing, Seller shall, or shall cause one of its Affiliates to, transfer sponsorship of and all liabilities with respect to the Morningstar Foods, Inc. Postretirement Medical Plan to Seller or one of its Affiliates (other than the Company or any of the Company Subsidiaries) and, effective as of the Closing, none of the Company, any Company Subsidiary, Buyer or any of Buyer’s Affiliates shall have any liability with respect thereto.
(e) Seller and Buyer acknowledge and agree that all provisions contained in this Section 5.2 with respect to Transferred Employees are included for the sole benefit of Seller and Buyer and that nothing in this Agreement, whether express or implied, shall (i) create any third party beneficiary or other rights in any other Person, including any current or former employees of Seller, the Company, a Company Subsidiary or Buyer or their respective Affiliates, any participant in any Employee Benefit Plan or benefit plan of Buyer, or any dependent or beneficiary thereof, (ii) require Seller, the Company, a Company Subsidiary or Buyer or any of their respective Affiliates to continue any such plan or prevent or require or constitute the amendment, modification or termination thereof or (iii) require Buyer, the Company or a Company Subsidiary to continue to employ any Transferred Employee for any period of time.
(f) To the extent that the terms of any Collective Bargaining Agreement provide requirements or benefits that differ from those set forth in this Section 5.2, such terms shall govern in lieu of this Section 5.2. In cases where benefit plans or benefit coverages provided to Transferred Employees covered by Collective Bargaining Agreements are maintained under Company Plans that are sponsored or maintained by Seller, prior to the Closing, Buyer will enter into written agreements with any labor unions representing such Transferred Employees to substitute the benefit plans or benefit coverages provided by Seller under such Collective Bargaining Agreements with benefit plans or coverages of Buyer and arrangementsthat otherwise comply with the applicable Collective Bargaining Agreement.
(g) Seller will transfer the employment of the New Business Transferred Employees who are not employed by the Company or any Company Subsidiary as of the date hereof to be employed by the Company or a Company Subsidiary, effective immediately prior to the Closing.
(h) Prior to the Closing, without cost, expense or other liability to Buyer, the Company or any Company Subsidiary, Seller shall transfer the employment of the Rockford Employees and any liability associated with such individuals from the Company or the applicable Company Subsidiary to Seller or one or more of its other Affiliates, effective prior to the Closing, and all written employmentnone of Buyer, severance, retention, incentive, change in control and termination agreements (including the Company or any change in control provisions therein) applicable Company Subsidiary shall have any liability following the Closing with respect to any Rockford Employees or any former employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of who were employed by the Company or any the applicable Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company SubsidiarySubsidiary at Seller’s Rockford facility, except that no such prior service credit will be required or provided to the extent that Buyer may employ such individuals at any point following the Closing.
(i) it results in a duplication of benefits, or (ii) such service was not recognized under In the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of event the Company or any Company Subsidiary (other than any communications consistent has not paid the entire amount deducted from the Initial Purchase Price pursuant to Section 2.3(b) which are defined in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or definition of Transaction Expenses within nine (9) months after the Company SubsidiariesClosing Date, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or forBuyer shall promptly pay, or cause to receive any compensation or benefits frombe paid, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries such residual amount to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementSeller.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Dean Foods Co)
Employment Matters. (a) During the period commencing on the Closing From and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries)Date, Parent shall, and or shall cause each Parent Subsidiary, as applicable, the Surviving Corporation to, provide each individual who is an honor the employment, severance, consulting and similar agreements listed in Schedule 4.16(a) hereto; provided, however, that the foregoing shall not prevent Parent or the Surviving Corporation from amending or terminating any such agreement in accordance with its terms and applicable law.
(b) Parent shall cause the employee benefit plans of Parent or any of its Affiliates (“Parent Group Plans”) that cover the employees of the Company and any of its Subsidiaries who continue in the employ of Parent, the Surviving Corporation or any Company Subsidiary immediately prior to of their respective Affiliates following the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time Closing Date (each, a “Continuing Employee” and collectively, the “Continuing Employees”) at any time after the Closing Date to credit service with the Company or any of its Subsidiaries, and with any predecessor employer, as service with Parent or its Affiliates for purposes of (i) accruing annual comprehensive leave time under the Parent Group Plan that provides comprehensive leave time and determining the amount of severance benefits to which Continuing Employees are entitled under any applicable Parent Group Plan that provides severance benefits, subject the terms of such plans, and (ii) eligibility and vesting under the Parent Group Plans, in each case to the same extent recognized by the Company or any of its Subsidiaries under the corresponding Benefit Plans, except to the extent such credit would result in the duplication of benefits. Parent shall, as otherwise mutually agreed between of immediately following the Closing Date, credit to each Continuing Employee under the applicable comprehensive leave program of Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided all unused paid time off credited to such Continuing Employee immediately prior to under the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) paid time off programs of the Company Disclosure Scheduleand its Subsidiaries as of the Closing Date (including, without limitation, accrued and (iiiunused vacation and permitted and unused sick, bereavement and similar leave) other compensation and employee benefits shall not take any actions that are no less favorable, in the aggregate, than those provided to adversely affect any such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, Employees (or retention, change-in-control their future accrual of paid time off or other special or non-recurring compensation or benefits leave time) as a result of such credit (provided prior to the Closing that for sake of clarity such accrued and unused vacation and sick, bereavement and similar leave shall be taken into account for purposes of applying any maximum accrual or carryover limits under the comprehensive leave program of the Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(bc) From and after Following the date hereof, the Company Merger Effective Time, Parent shall, and shall cause each of its Subsidiaries to, cooperate with Parent Subsidiaryto allow Parent to (i) arrange and conduct for employees of the Company and its Subsidiaries, as applicablean open enrollment period for Parent Group Plans (to the extent such plans will be made available to such employees and employee orientation sessions, (ii) meet with employees of the Company and its Subsidiaries (either individually or in groups) outside of scheduled work hours and (iii) enter into employee retention letter agreements, at Parent’s expense, with the employees identified by Parent by written letter or memorandum delivered to honorthe Company prior to the execution of this Agreement (provided, for the sake of clarity, Parent shall not be required to enter into employee retention letter agreements with all such employees); provided that, notwithstanding the foregoing, (A) all meetings, orientation sessions and other interactions between employees of the Company and its Subsidiaries and employees or other representatives of Parent or any of its Affiliates shall be (x) scheduled at a time and location, and (y) cover subject matters, in accordance with their termseach case, all severance mutually agreed upon by the Company and separation pay plans, agreements and arrangementsParent in advance, and a representative of the Company shall in all written employmentinstances be entitled to attend such meetings and interactions, severanceand (B) no presentations, retention, incentive, change in control and termination agreements meeting materials or other communications from Parent or any of its Affiliates (including or any change in control provisions thereinof their respective representatives) applicable shall be provided to employees of the Company or any Company Subsidiary and in effect immediately its Subsidiaries without prior to review and approval by the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee ProgramCompany.
(d) Without limiting Parent shall use commercially reasonable efforts to cause the generality of Section 7.8(a), applicable Parent Group Plans to (i) cash incentive bonuses waive or cause to be waived for calendar year 2023 shall be treated as set forth in Section 7.8(d)(ieach Continuing Employee and his or her dependents, any waiting period provision, payment requirement to avoid a waiting period, pre-existing condition limitation, actively-at-work requirement and any other restriction that would prevent immediate or full participation under the welfare plans of Parent or any of its Affiliates applicable to such Continuing Employee to the extent such waiting period, pre-existing condition limitation, actively-at-work requirement or other restriction would not have been applicable (or was previously satisfied by) to such Continuing Employee under the terms of the welfare plans of the Company Disclosure Scheduleand its Subsidiaries, and (ii) with respect give or cause to be given full credit under the welfare plans of Parent and its Affiliates applicable to each Company 2015 Plan Restricted Share that is issued Continuing Employee and outstanding as of immediately his or her dependents for all co-payments, co-insurance and deductibles satisfied prior to the Closing in the same plan year as the Closing, and for any lifetime maximums, as if there had been a single continuous employer.
(e) Following the date hereof, the Company Merger Effective Time shall use commercially reasonable efforts to take all such necessary actions reasonably requested by Parent to (i) prepare the EPP to be merged with and into the Savings Plan effective as soon as reasonably practicable following the Closing Date in accordance with applicable requirements under the Code and (ii) allow participants and beneficiaries in the EPP to which restrictions shall elect to have lapsed as their account balances under the EPP effective after the date of immediately such merger to be invested in the investment options available to participants in the Savings Plan.
(f) On or prior to the Company Merger Effective Time, first payroll date following the right end of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as fiscal year in effect on which the date of this Agreement) that Closing Date occurs, the Surviving Corporation shall not have been satisfied in full through receipt make contributions to the accounts of the Merger Consideration and Fractional Share Consideration eligible participants in the MergerSavings Plan and the EPP or otherwise provide non-forfeitable, if any, shall remain by operation of applicable Law as an obligation cash bonus payments to employees of the Surviving Entity Corporation and shall be settled in cash its Subsidiaries (and which, for the avoidance of doubt, such will be in addition to cash payment, if any, shall be determined bonuses paid in accordance the ordinary course of business consistent with past practice) in an aggregate amount equal to the formula set forth in Section 7.8(d)(ii) Accrued Employer Contribution. To the extent the amount of the Company Disclosure Scheduleactual contributions (or bonus payments) no later than five (5) Business Days made by the Surviving Corporation on or prior to the first payroll date following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) end of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar Company’s fiscal year in which the Closing occursDate occurs are less than the Accrued Employer Contribution, the excess of the Accrued Employer Contribution over such actual contributions (or bonus payments) will be delivered by Parent as follows: (x) to the Exchange Agent (for distribution to each Company Stockholder in accordance with such Company Stockholder’s Common Pro Rata Percentage) a cash payment in an amount equal to the product of (A) the amount of such excess, multiplied by (B) the Aggregate Common Pro Rata Percentage, and (y) to the Surviving Corporation (for payment to each Company Optionholder in accordance with such Company Optionholder’s Option Pro Rata Percentage) a cash payment in an amount equal to the product of (A) the amount of such excess, multiplied by (B) the Aggregate Option Pro Rata Percentage.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this AgreementClosing Date, the Company shall, and shall cause its Subsidiaries to, take all necessary actions (including obtaining any required waivers or consents from each person who is a “disqualified individual” as defined in Treasury Regulation Section 1.280G-1 (“Disqualified Individual”) with respect to the extent Company) to submit for approval by the stockholders of the Company, in a manner that satisfies Section 280G(b)(5) of the Code and the final Treasury Regulations issued thereunder, the right of each such Disqualified Individual to receive or retain, as applicable, that portion of any payments and benefits (whether in cash or property or the vesting of property) that, together with any other payments and benefits the Disqualified Individual may become entitled to receive that would be considered “parachute payments” under Section 280G(b)(2) of the Code, exceeds 299% of such Disqualified Individual’s “base amount” (as defined in Section 280G(b)(3) of the Code). All documents, including but not prohibited limited to waivers and stockholder disclosure documents, to be executed, entered into, adopted, or distributed by applicable Lawthe Company in connection with complying with this Section 7.3(g) shall be subject to Parent’s prior review (and shall be provided to Parent at least five days before being executed, entered into, adopted, or distributed) and the Company shall reflect in such documents any changes or comments reasonably requested by Parent prior to executing, entering into, adopting or distribution such documents. Except for (i) provide Parent with agreements to which the Company is a copy of the intended communication, party and (ii) give retention letter agreements entered into in accordance with Section 7.3(c) that have been provided to the Company at least ten Business Days prior to the Closing, Parent a reasonable period shall not enter into any Contracts or other arrangement that could entitle any Disqualified Individual to receive payments or benefits that could be considered “parachute payments” under Section 280G(b)(2) of time to review and comment on the communication and (iii) consider any such comments in good faithCode.
(h) During The Parties acknowledge and agree that all provisions contained in this Section 7.3 are included for the Interim Periodsole benefit of the Parties. This Agreement is not intended by the Parties to, the Parent Parties and the Company and the Company Subsidiaries nothing in this Section 7.3 or otherwise in this Agreement, whether express or implied, shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer constitute an amendment to any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assignsBenefit Plan, (ii) constitute obligate Parent or create an employment agreement the Company or any of their respective Affiliates to maintain any particular compensation or benefit plan, program, policy or arrangement, (iii) create any right in obligation of the Parties with respect to any Parent Group Plan or Benefit Plan, or (iv) confer on any Continuing Employee or any other Person to (other than the Parties) any continued employment rights or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, remedies (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementincluding third-party beneficiary rights).
Appears in 1 contract
Samples: Merger Agreement (Science Applications International Corp)
Employment Matters. (a) During the period commencing on Except as hereinafter specifically provided, RCG shall not assume any employment obligation, wage or salary payment obligation or Employee Benefit Plan obligation of Sellers. Effective the Closing and ending on Date, Sellers shall terminate the date that is twelve (12) months after employment of each Facility Employee. On the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensationDate, or retentionas soon as practica- ble thereafter, change-in-control or Sellers shall pay each such persons all accrued wages, salary, commission, bonus and other special or non-recurring employee compensation or benefits provided payments and make all federal, state and local withholding taxes for all periods prior to the Closing Date. Sellers shall be taken into account cause its insurance carrier to satisfy, all valid claims for purposes covered medical, health and hospital benefits, including, but not limited to, workers' compensation, life insurance, and medical and disability programs, under the Employee Benefit Plans brought by such employees relating to claims arising prior to the Closing Date. In addition, Sellers shall pay or provide for all employee benefits accrued for all periods prior to the Closing Date, all in accordance with applicable law. Upon ter- mination of Parent’s obligations under this employment as provided herein, Sellers shall give each of their terminated employees all required notices and information with respect to the continuation of certain health insurance coverage by Sellers and shall make available all such coverage required by Section 7.8(a). For 4980B of the avoidance Code to any of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status their employees who do not become employees of any Continuing EmployeeRCGSE.
(b) From and after Effective the Company Merger Effective TimeClosing Date, Parent shall, and RCGSE shall cause each Parent Subsidiary, as applicable, offer employment to honorall Facility Employees who desire to become employees of RCGSE, in accordance with their terms, the same positions and at reasonably comparable salaries and wages as immediately before the Closing Date. RCGSE will provide such employees all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior fringe benefits made gen- erally available to the Company Merger Effective Timeits employees.
(c) Parent Nothing contained in paragraphs (a) or (b) of this Section 5.7 shall be deemed to create or give rise to any employment or other contractual rights in favor of any such employees, all of whom shall, from and shall cause after the Parent Subsidiaries toClosing Date, provide credit for each Continuing Employee’s length be employees-at-will of service with the Company RCGSE and the Company Subsidiaries (as well as service with any predecessor employer none of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 whom shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to deemed for any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date purpose a third party beneficiary of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Dialysis Corp of America)
Employment Matters. (a) During At Closing, Crackle shall facilitate the period commencing transfer and the employment by the JV Entity of the Employees employed by Crackle, CPE or another Affiliate thereof that are providing services in connection with the Crackle VOD Business, all of which are set forth on Schedule 5.11(a) (“Existing Crackle Employees”), and the Closing JV Entity shall (i) assume, and ending on the date that is twelve (12) months after the Closing thereafter perform, all obligations of Crackle (or if earlier, the date of the Continuing its applicable Affiliate) under each Employment Agreement Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time agreement (each, a “Continuing Crackle Employment Agreement”), and (ii) offer to each Existing Crackle Employee not party to an employment agreement at Closing (an “Other Employee” ”), effective as of Closing, terms and collectivelyconditions of employment, the “Continuing Employees”) including with (i) except respect to location, role, position, and base pay that are substantially equivalent in terms of location, role, position, and base pay as otherwise mutually agreed between Parent and such Continuing Employee, a base salary was provided by Crackle or base wage rate that is not less than the base salary or base wage rate provided any of its Affiliates to such Continuing Employee Existing Employees immediately prior to the Closing, Closing (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, “Substantially Similar Terms”); provided, however, that no post-retirement medicalthe JV Entity may offer any such Other Employee terms and conditions of employment which are lesser than Substantially Similar Terms, equity-based compensationbut in the event that such Other Employee does not accept such employment offer, deferred compensationhe or she shall be deemed to have been terminated by the JV Entity without cause (a “JV Terminated Employee”), and the JV Entity shall have the liability for (or retentionreimburse Crackle for, change-in-control or other special or non-recurring compensation or as the case may be) payment of severance (in accordance with the JV Entity Severance Policy) and provision of related benefits provided to such JV Terminated Employee. The offer of employment required by this Section 5.11(a) shall be delivered to each Other Employee by CSSE on behalf of the JV Entity in writing prior to the Closing Date and shall be taken into account conditioned upon and effective at Closing. Prior to the delivery of the employment offer to the Other Employees, CSSE shall provide to Crackle for purposes its reasonable and timely review a draft of Parentthe form of offer of employment to be made to such employees. Each Employment Agreement Employee shall be notified in writing by Crackle of the transfer of his or her Crackle Employment Agreement prior to the Closing Date, which transfer shall be conditioned upon and effective at Closing. Each Other Employee who accepts the JV Entity’s offer of employment, and each Employment Agreement Employee whose employment agreement is transferred to the JV Entity at Closing, shall be referred to herein as a “Transferred Employee.” After the date hereof, CPE and Crackle shall promptly provide to CSSE all information requested by CSSE that is or will be reasonably necessary for the JV Entity to comply with its obligations with respect to the Transferred Employees under this Section 7.8(a)5.11(a) and the other provisions of this Section 5.11. For Such obligations include, without limitation, those arising under the avoidance Older Workers Benefit Protection Act and information that must be supplied when any terminated employees are part of doubt, nothing a reduction in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeeforce.
(b) From and after the Company Merger Effective TimeFor purposes of any notice, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employmentretention, severance, retention, incentive, change in control and retrenchment or termination agreements (including of any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, the parties to this Agreement intend that the transactions contemplated by this Agreement shall not constitute a severance of employment of any Existing Crackle Employee or Transferred Employee prior to or upon the consummation of the transactions contemplated hereby, so that (i) Transferred Employees will be offered continuous and uninterrupted employment immediately before, during and immediately following the Closing, and (ii) Existing Crackle Employees who received an offer of employment which contained Substantially Similar Terms but who rejected such offer will be offered continuous and uninterrupted employment after closing with Crackle (or an Affiliate thereof) or terminated by Crackle (or an Affiliate thereof), at its sole expense, and in its sole discretion. The JV Entity shall retain and be solely responsible for all liabilities in respect of claims made by any Transferred Employee or JV Terminated Employee for any notice, retention, severance, retrenchment, termination pay or other benefits arising from any action or inaction of the JV Entity after Closing (including claims for constructive dismissal, termination indemnities, any damages arising from a breach of such Transferred Employee’s employment contract, and any payments required to be made under any applicable law in respect of the termination of the Employee’s employment). Crackle similarly shall be responsible for all such liabilities in respect to Existing Crackle Employees who received an offer of employment which contained Substantially Similar Terms and who rejected such offer.
(c) Effective as of the Closing, subject to Section 5.11(c), below, each Transferred Employee shall cease to actively participate in (including eligibility to contribute to) and accrue benefits under all Crackle Benefit Plans. After the Closing Date, the JV Entity shall cooperate with Crackle to provide each other with such current information regarding the Transferred Employees on an ongoing basis as may be necessary to facilitate determinations of eligibility for, and payments of benefits to, the Transferred Employees under any applicable Benefit Plans that continue to be maintained by CPE or Crackle or any retirement or savings planof their Affiliates.
(d) [Reserved].
(e) For all purposes (including purposes of vesting, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible eligibility to participate (and level of benefits, but not for purposes of any benefit accrual under any excluding defined benefit pension planplans) under the employee benefit plans pursuant to which the JV Entity provides benefits to any Transferred Employee after the Closing (the “New Plans”), each Transferred Employee shall be credited with his or her years of service with the JV Entity, to the same extent that as such Transferred Employee was entitled, before the Closing, to credit for service with Crackle under any similar Benefit Plan in which such Transferred Employee participated or was recognized under a similar planeligible to participate immediately prior to the Closing; provided, programhowever, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided foregoing shall not apply to the extent that (i) it results its application would result in a duplication of benefits. In addition, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without and without limiting the generality of Section 7.8(a)the foregoing, the JV Entity shall use best efforts to ensure that (i) cash incentive bonuses for calendar year 2023 each Transferred Employee shall be treated as set forth immediately eligible to participate, without any waiting time, in Section 7.8(d)(iany and all New Plans to the extent coverage under such New Plan is replacing coverage under a Benefit Plan in which such Transferred Employee participated immediately before the Closing (such plans, collectively, the “Old Plans”) of the Company Disclosure Schedule, and (ii) with respect for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Timeany Transferred Employee, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving JV Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods pre-existing condition exclusions and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements of such New Plan to be waived for such employee and waiting periods his or her covered dependents, unless such conditions would not have been satisfied or waived under the comparable Company Employee Program Old Plans in which such employee participated immediately prior to the Closing. The JV Entity shall cause eligible expenses incurred by such employee and (ii) honor any paymentshis or her covered dependents during the portion of the plan year of the Old Plans ending on the date such employee’s participation in the corresponding New Plan begins to be taken into account under the New Plan for purposes of satisfying all deductible, charges coinsurance and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and maximum out-of-pocket maximums requirements applicable to such employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(f) With respect to Existing Crackle Employees:
(i) Crackle shall retain the obligation to provide health continuation coverage required by Section 4980B of the Code (“COBRA”) under a Benefit Plan with respect to any Employee and his or her “qualified beneficiaries” (as defined in Section 4980B(g)(1) of the Code) who experience a “qualifying event” (as defined in Section 4980B(f)(3) of the Code) prior to the Closing Date, and the JV Entity shall assume the obligation to provide health continuation coverage required by COBRA under a New Plan with respect to any Transferred Employee or JV Terminated Employee and his or her qualified beneficiaries (as defined in Section 4980B(g)(1) of the Code) who experience a “qualifying event” (as defined in Section 4980B(f)(3) of the Code) on or after the Closing Date.
(ii) Effective on the Closing Date, the JV Entity shall provide to the Transferred Employees the right to participate in a tax-qualified “401(k)” plan sponsored, established or maintained by the JV Entity (the “JV Entity 401(k) Plan”). Each Transferred Employee who, prior to the Closing, participated in a 401(k) plan sponsored or maintained by Crackle or any of its Affiliates (the “Crackle 401(k) Plan”) shall be given the opportunity by Crackle as soon as administratively practicable after the Closing Date to receive a distribution of his or her account balance under the corresponding Company Employee Program Crackle 401(k) Plan (in satisfying cash, but also including any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during promissory notes for associated participant loans) and by the calendar year in which JV Entity to elect to roll over such account into the Closing occursJV Entity 401(k) Plan.
(g) Prior The JV Entity shall assume and honor under substantially equivalent terms to making any broad-basedthose currently provided by Crackle, written communications all vacation, sick leave and other personal time off accrued and unused as of the Closing of each Transferred Employee. Thereafter, such accrued and unused time shall be subject to the employees vacation, sick leave and other personal time-off policies of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, JV Entity applicable to the extent not prohibited by applicable Lawrespective Transferred Employee, (i) provide Parent consistent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faiththis Section 5.11.
(h) During Crackle and its Affiliates shall be solely responsible for workers’ compensation obligations by or with respect to any Transferred Employee that are incurred prior to the Interim Period, the Parent Parties Closing and the Company JV Entity and its Affiliates (excluding Crackle) shall be solely responsible for workers’ compensation by or with respect to any Transferred Employee that are incurred on or after the Company Subsidiaries shall, Closing. Crackle also shall be responsible for such post-Closing obligations regarding Existing Crackle Employees who received an offer of employment which contained Substantially Similar Terms and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by who rejected such offer. For purposes of this Section 7.85.11(h) a workers’ compensation claim shall be considered incurred before the Closing if the injury or condition giving rise to the claim occurs before the Closing. Crackle acknowledges and agrees that, unless otherwise provided under applicable Law, Benefit Plans that provide group health benefits shall be solely responsible for health benefit claims incurred by Transferred Employees before the Closing and JV entity shall be responsible for all health benefit claims incurred by Transferred Employees on or following Closing. A health benefit claim shall be considered incurred before the Closing if rendering of the health service occurs before Closing.
(i) Nothing Notwithstanding anything to the contrary contained herein, at Closing, the JV Entity shall adopt a severance policy (the “JX Xxxxxxxxx Policy”) applicable to Existing Crackle Employees (including JV Terminated Employees and Transferred Employees) with respect to any termination of any such Existing Crackle Employee at Closing, or, in this Section 7.8 the case of Transferred Employees, at any time during the period commencing on the Closing Date and ending on the ninety first (91st) day following the Closing Date. The JX Xxxxxxxxx Policy shall (i) confer any rights upon any Personprovide for severance benefits equivalent in value, including all payment obligations, to Crackle’s existing severance policy (inclusive of the payment of base salary, COBRA reimbursement and third party recruiting/placement services, but not bonuses); provided, however, the JX Xxxxxxxxx Policy may provide that terminated Transferred Employees receive staggered severance payments rather than lump sum payments. The JV Entity shall reimburse CPE, or any Continuing Affiliate thereof, promptly upon written request therefore, for any COBRA provided to a JV Terminated Employee or former employee of the Company or the Company Subsidiariesa Transferred Employee under a Crackle Benefit Plan, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person Benefit Plan maintained by CPE or any Affiliate thereof. The JX Xxxxxxxxx Policy shall condition all payments and benefits on execution by any terminated Transferred Employee or JV Terminated Employee of a separation agreement and release in favor of the JV Entity, Crackle and CSSE, in form and substance reasonably satisfactory to counsel for the JV Entity. The form of separation agreement counsel for the JV Entity prepares will not reduce any payments or benefits that, pursuant to this Agreement, the JV Entity undertakes to offer to each contemplated Transferred Employee. The JV Entity Severance Policy shall not permit termination of severance payments to any terminated Transferred Employee or JV Terminated Employee because such employee finds other employment. Crackle shall remain responsible for payment to all Existing Crackle Employees of all year-end bonuses for the fiscal year ending March 31, 2019, and Crackle shall pay same as and when due and the same shall be payable in accordance with Crackle’s and its Affiliates’ internal policies. With respect to any Transferred Employee, the payment of such bonus shall be subject to his or her continued employment or service with or for, or to receive the JV Entity through the date such payments are due.
(j) In the event of a conflict between this Section 5.11 and any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit planemployee-related Benefit Plan, program, policyarrangement, agreement contract or arrangement at any time assumedpractice of the JV Entity, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementthis Section 5.11 shall control.
Appears in 1 contract
Samples: Contribution Agreement (Chicken Soup for the Soul Entertainment, Inc.)
Employment Matters. (a) During The Acquired Entities and their Subsidiaries are in material compliance with all terms and conditions of employment, employment agreements and all Laws respecting employment, including, without limitation, pay equity, wages, hours of work, overtime, vacation, human rights, Tax and work safety and health, and there are no outstanding claims, complaints, investigations or Orders in relation to any such Laws.
(b) All amounts due or accrued due for all salary, wages, bonuses, commissions, vacation with pay, sick days and benefits under Employee Plans and other similar accruals have either been paid or are accurately reflected in all material respects in the period commencing on the Closing Books and ending on the date that is twelve (12) months after the Closing (or if earlier, the date Records of the Continuing Employee’s termination Acquired Entities and their Subsidiaries.
(c) The Acquired Entities and their Subsidiaries have not and are not engaged in any unfair labour practice and no unfair labour practice complaint, grievance or arbitration proceeding is pending or, to the Knowledge of employment with Parent and the Parent Company, threatened against the Acquired Entities or any of their Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee .
(d) Section 3.28(d) of the Company Disclosure Schedule sets forth a true and complete list of all material Acquired Entities Employee related claims, complaints, investigations or Orders under any Company Subsidiary immediately prior such Law now pending or, to the Company Merger Effective Time Knowledge of Company, threatened against the Acquired Entities and who remains employed its Subsidiaries by Parent or before any Parent Subsidiary Governmental Entity as of the Company Merger Effective Time date hereof.
(each, a “Continuing Employee” and collectively, the “Continuing Employees”e) with (i) except Except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on in Section 7.8(a3.28(e) of the Company Disclosure Schedule, and no Acquired Entities Employee has any agreement as to length of notice or severance payment required to terminate his or her employment which would entitle such Acquired Entities Employee to an amount exceeding US$50,000 or which are not terminable on the giving of reasonable notice (iii) other compensation and employee benefits that are no less favorableor, in the aggregateany case, more than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing 6 months’ notice) in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeeaccordance with applicable Law.
(bf) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated Except as set forth in Section 7.8(d)(i3.28(f) of the Company Disclosure Schedule, and (ii) there are no change of control payments, golden parachutes, severance payments, retention payments, Contracts or other agreements with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as current or former Acquired Entities Employees, or current or former directors or independent contractors of immediately prior to the Company Merger Effective Time as to Acquired Entities or any of its Subsidiaries, providing for cash or other compensation or benefits which restrictions shall have lapsed as of immediately prior to would be triggered upon the Company Merger Effective Timeconsummation of, or relating to, the right Transactions, including a change of control of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding Acquired Entities or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursits Subsidiaries.
(g) Prior There are no material outstanding assessments, penalties, fines, Liens, charges, surcharges, or other amounts due or owing pursuant to making any broad-basedworkplace safety, written communications workers compensation or insurance legislation and none of the Acquired Entities nor any of their Subsidiaries has been reassessed in any material respect under such legislation during the past three years and, to the employees Knowledge of the Company Company, no audit of the Acquired Entities or any Company Subsidiary of their Subsidiaries is currently being performed pursuant to any applicable workplace safety, workers compensation or insurance legislation.
(other than h) No Orders or WSHL have been provided to the Acquired Entities or any communications consistent of their Subsidiaries in the past three years. To the Knowledge of the Company, there are no material charges pending under WSHL. The Acquired Entities and their Subsidiaries have complied in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, any Orders issued under WSHL and to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee knowledge of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination there are no appeals of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementOrders under WSHL currently outstanding.
Appears in 1 contract
Samples: Securities Exchange Agreement (NextPlay Technologies Inc.)
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employeeemployee’s termination of employment with Parent, Parent OP and the Parent Subsidiaries), Parent shall, and shall cause each Parent SubsidiarySubsidiary (including the Partnership and Parent OP), as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time Closing and who remains employed by the Company, any Company Subsidiary, Parent or any Parent Subsidiary as of (including the Company Merger Effective Time Partnership and Parent OP) immediately following the Closing (each, each a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise compensation and benefits, that are mutually agreed between the Parent Parties and each such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance OP and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time time-off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate arrangement (but not for purposes of any benefit accrual under any defined benefit pension plan) under each plan, program, policy, agreement or arrangement of Parent or the Parent Subsidiaries (including the Partnership and Parent) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(dc) Without limiting To the generality of Section 7.8(a)extent permitted by applicable Law, (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries Surviving Entity to use, commercially reasonable efforts to cause each Parent Company Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Company Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(hd) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.87.8 and the Company and the Company Subsidiaries agree, upon the reasonable request of Parent, to assist the Parent Parties with respect post-closing employment matters relating to employees of the Company and the Company Subsidiaries.
(ie) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, for the Company, the Company Subsidiaries, Parent, Parent or OP, the Parent Subsidiaries, or the Surviving Entity, or to any compensation or benefits of any nature or kind whatsoever, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program Program, program, policy, agreement or any arrangement of the Company, the Company Subsidiaries, Parent, Parent Employee ProgramOP, the Parent Subsidiaries, or the Surviving Entity, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent, Parent or OP, the Parent Subsidiaries or the Surviving Entity to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Merger Agreement (Prologis, Inc.)
Employment Matters. (a) Immediately prior to the Closing, MarketSource shall terminate the employment or engagement of the employees and consultants of MarketSource listed on Section 6.9 of the Disclosure Schedule (the "360 Youth Business Employees"). MarketSource shall terminate any and all existing employment, consulting, independent contractor, confidentiality, non-disclosure, assignment of inventions or other intellectual property, non-competition, non-solicitation or similar agreements between MarketSource and any 360 Youth Business Employee effective as of the Closing Date. MarketSource shall also, in accordance with all applicable law, pay to each 360 Youth Business Employee all wages, salaries and commissions earned through the Closing Date, reimburse each 360 Youth Business Employee for all reimbursable expenses incurred by him or her through the Closing Date and make such other payments as may be required by applicable law to the 360 Youth Business Employees as of such date. MarketSource shall also pay to the 360 Youth Business Employees all bonus payments due to such employees under the MarketSource Corporation Incentive Compensation Plan (or any other similar plan) as soon as reasonably practicable following its calculation of such bonus payments. On the Closing Date, Acquisition Sub shall offer to each of the 360 Youth Business Employees employment or engagement on terms acceptable to Acquisition Sub. Any such 360 Youth Business Employee accepting a position with Acquisition Sub is referred to herein as a "Transferred Employee" and, notwithstanding anything in this Agreement to the contrary, shall be employees or independent contractors of Acquisition Sub, as determined by Acquisition Sub, following the Closing Date. Acquisition Sub shall credit each Transferred Employee for all accrued and unpaid vacation and sick days as set forth in Section 3.1(t)(i) of the Disclosure Schedule. MarketSource shall accept sole and exclusive responsibility for the disposition of any 360 Youth Business Employee who does not accept employment with Acquisition Sub including, without limitation, any obligation to offer and provide COBRA continuation coverage for health insurance to such individual and his or her spouse and dependents, if any.
(b) During the period commencing on the Closing Date and ending on the date that is twelve (12) months after the Closing (or if earlier, the date last day of the Continuing Employee’s termination of employment with Parent pay period including December 31, 2001, MarketSource shall continue to provide to all Transferred Employees, coverage under MarketSource's health, dental, life and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) disability insurance plans to the same extent that such service was recognized under a similar planTransferred Employees participated in any such plan immediately prior to the Closing Date, programand MarketSource shall pay all wages to Transferred Employees as approved by Acquisition Sub, policyand shall withhold appropriate taxes and other withholdings with respect to such wages and issue all information statements to all such employees (including W-2 statements) and taxing authorities and pay all federal and state taxes with respect to such Transferred Employees; provided, agreement or arrangement -------- that, Acquisition Sub shall reimburse MarketSource for its direct costs incurred ---- for such premiums, wages and taxes after MarketSoruce has provided Acquisition Sub evidence of such payments as Acquisition Sub may reasonably require.
(c) Promptly following the Closing Date, Alloy shall grant to certain of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided Transferred Employees options to purchase up to an aggregate of 600,000 shares of Alloy Common Stock (the "Employee Options") at an exercise price per share equal to the extent that greater of (i) it results in the closing price of a duplication share of benefits, or (ii) such service was not recognized under Alloy Common Stock on the corresponding Company Employee Program.
(d) Without limiting NASDAQ for the generality trading day immediately preceding the date of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, grant and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent $12.47. The Employee Program in which any Continuing Employee participates that provides health or welfare benefits to Options (i) waive all limitations shall be issued to such Transferred Employees and in such individual amounts as to preexisting conditionsis determined by Alloy after consultation with MarketSource, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any paymentsshall be incentive stock options, charges and expenses within the meaning of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees Section 422 of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shallCode, to the extent not prohibited by applicable Lawpossible, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree shall become exercisable as to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee 25% of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability underlying shares on each anniversary of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries grant date for a period of four (4) consecutive years. All such options shall be granted in accordance with and subject to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such planthe Alloy, programInc. Restated 1997 Employee, policy, agreement or arrangementDirector and Consultant Stock Option Plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Alloy Inc)
Employment Matters. (a) During For the one-year period commencing on following the Closing and ending on the date that is twelve (12) months after the Closing Effective Time (or if earlier, such shorter period as the date of the applicable Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior Employee continues to the Company Merger Effective Time and who remains be employed by Parent or any the Surviving Corporation after the Effective Time) and subject to Applicable Law, Parent Subsidiary as of shall provide, or shall cause the Surviving Corporation to provide to each Continuing Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with Employee (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base at least the same level of hourly salary or base wage rate that is not less than the base salary or base wage rate wages and annual target bonus opportunity as provided to such Continuing Company Employee immediately prior to the Closing, Effective Time and (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable(excluding equity-based compensation) that, in the aggregate, than those are at least as favorable as the employee benefits (excluding equity-based compensation) provided to such Continuing Company Employee under the Company Benefit Plans as in effect immediately prior to the ClosingEffective Time. Notwithstanding the generality of the foregoing, provided(i) with respect to the Continuing Company Employees’ eligibility to participate in a long term incentive plan maintained by Parent, howeverParent will endeavor to use substantially similar criteria and processes in evaluating such eligibility of Continuing Company Employees as Parent does in evaluating the eligibility of employees of Parent, that no postand (ii) for the one-retirement medicalyear period following the Effective Time, equity-based compensation, deferred compensationParent shall provide, or retentionshall cause the Surviving Corporation to provide, change-in-control or other special or non-recurring compensation or to the Continuing Company Employees, severance benefits not less favorable than the severance benefits provided prior by the Company pursuant to the Closing shall be taken into account for purposes of Company Benefit Plans and Made Available to Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after Following the Company Merger Effective TimeClosing Date, Parent shall, and or shall cause the Surviving Corporation to, cause any employee benefit plans sponsored or maintained by Parent or the Surviving Corporation or their Subsidiaries in which the Continuing Company Employees are eligible to participate following the Closing Date (collectively, the “Post-Closing Plans”) to recognize the service of each Parent SubsidiaryContinuing Company Employee with the Company prior to the Closing Date for purposes of eligibility, as applicablevesting and, solely for purposes of any vacation and severance benefits, levels of benefits under such Post-Closing Plans, in each case, to honorthe same extent such service was recognized immediately prior to the Effective Time under a comparable Company Benefit Plan in which such Continuing Company Employee was eligible to participate immediately prior to the Effective Time; provided that such recognition of service shall not (i) apply for purposes of any plan that provides retiree welfare benefits, (ii) apply for purposes of benefit accruals or participation eligibility under any defined benefit pension plan or plan providing post-retirement pension plan benefits, (iii) operate to duplicate any benefits of a Continuing Company Employee with respect to the same period of service, or (iv) apply for purposes of any plan, program or arrangement (x) under which similarly situated employees of Parent and its Subsidiaries do not receive credit for prior service or (y) that is grandfathered or frozen, either with respect to level of benefits or participation. With respect to any Post-Closing Plan that provides medical, dental or vision insurance benefits, for the plan year in accordance which such Continuing Company Employee is first eligible to participate, Parent shall use reasonable best efforts to (A) cause any pre-existing condition limitations or eligibility waiting periods under such plan to be waived with their terms, all severance and separation pay plans, agreements and arrangementsrespect to such Continuing Company Employee to the extent such limitation would have been waived or satisfied under the Company Benefit Plan in which such Continuing Company Employee participated immediately prior to the Effective Time, and all (B) credit each Continuing Company Employee for an amount equal to any medical, dental or vision expenses incurred by such Continuing Company Employee in the year that includes the Closing Date (or, if later, the year in which such Continuing Company Employee is first eligible to participate in such Post-Closing Plan) for purposes of any applicable deductible and annual out-of-pocket expense requirements under any such Post-Closing Plan to the extent such expenses would have been credited under the Company Benefit Plan in which such Company Employee participated immediately prior to the Effective Time, subject to the applicable information being provided to Parent in a form that Parent reasonably determines is administratively feasible to take into account under its plans. Such credited expenses shall also count toward any annual or lifetime limits, treatment or visit limits or similar limitations that apply under the terms of the applicable plan.
(c) If requested by Parent in writing delivered to the Company not less than ten (10) Business Days before the Closing Date, the Company Board (or the appropriate committee thereof) shall adopt resolutions and take such corporate action as is necessary to terminate the Company’s 401(k) plan (the “Company 401(k) Plan”), effective as of the day prior to the Closing Date. To the extent the Company 401(k) Plan is terminated pursuant to Parent’s request, the Continuing Company Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its Subsidiaries or Affiliates as soon as reasonably practicable following the Closing Date.
(d) The Company will provide Parent with a copy of any material written employment, severance, retention, incentive, change in control communications intended for broad-based and termination agreements (including general distribution to any change in control provisions therein) applicable to current or former employees of the Company or any Company Subsidiary of its Subsidiaries if such communications relate to the compensation, employment or labor aspects of the transactions contemplated hereby, and in effect immediately will provide Parent with a reasonable opportunity to review and comment on such communications prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Sharedistribution.
(e) Parent and Nothing in this Agreement shall confer upon any Company Employee or other service provider any right to continue in the employ or service of Parent, the Surviving Corporation or any affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any of their affiliates, which rights are hereby expressly reserved, to discharge or terminate the services of any Company Employee at any time for any reason whatsoever, with or without cause. In no event shall take the actions described in Section 7.8(e) terms of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits this Agreement be deemed to (i) waive all limitations establish, amend, or modify any Company Benefit Plan or any “employee benefit plan” as to preexisting conditionsdefined in Section 3(3) of ERISA, exclusionsor any other benefit plan, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employeesprogram or Contract maintained or sponsored by Parent, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitationsSurviving Corporation, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary of their respective Subsidiaries (other than any communications consistent in all material respects with prior communications made by including, after the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this AgreementClosing Date, the Company shall, to the extent not prohibited by applicable Law, (iand its Subsidiaries) provide Parent with a copy of the intended communication, or Affiliates; or (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of Parent, the CompanySurviving Corporation or any of their Subsidiaries (including, after the Closing Date, the Company and its Subsidiaries, Parent ) or the Parent Subsidiaries affiliates to amend, modify or terminate any Company Benefit Plan or any other compensation or benefit or employment plan, programprogram or Contract after the Closing Date. Notwithstanding any provision in this Agreement to the contrary, policy, agreement nothing in this Section 6.15 shall create any Third Party beneficiary rights in any Company Employee or arrangement at current or former service provider of the Company or its affiliates (or any time assumed, established, sponsored beneficiaries or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementdependents thereof).
Appears in 1 contract
Employment Matters. (a) During the For a period commencing on of no less than two years following the Closing Date, Buyer will cause the Surviving Corporation to continue to provide the employees of the Company and ending on the date that is twelve (12) months after its Subsidiaries as of the Closing (or Date with salary, wages, cash bonus opportunities, and commission rates, if earlierapplicable, and benefits which in the date aggregate are at least substantially comparable to those salary, wages, cash bonus opportunities, and commission rates, if applicable, and benefits provided prior to the Closing Date by the Company and its Subsidiaries taken as a whole. This Section 5.6 will not limit the obligation of the Continuing Employee’s termination Surviving Corporation to maintain any Employee Plan that, pursuant to an existing Contract, must be maintained for a period longer than two years. No provision of this Agreement will be construed as a guarantee of continued employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an of any employee of the Company or any Company Subsidiary immediately prior of its Subsidiaries, and this Agreement will not be construed so as to prohibit the Surviving Corporation or any of its Subsidiaries from having the right to terminate the employment of any employee of the Surviving Corporation or any of its Subsidiaries.
(b) For a period of two years following the Closing Date, any employee of the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary its Subsidiaries as of the Closing Date whose employment is terminated after Closing will be entitled to severance in accordance with the past practices of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately its Subsidiaries prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that which practices are not less than the target annual or other short-term periodic cash incentive opportunities set forth described on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(aSchedule 5.6(b). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, Each employee of the Company and shall cause its Subsidiaries as of the Parent Subsidiaries to, provide credit for each Continuing Employee’s length Effective Date will be credited with his or her years of service with the Company and the Company its Subsidiaries (as well as service with and any predecessor employer of entities thereof) before the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level Closing Date under any employee vacationbenefit plan of Parent, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent Buyer and the Parent its Subsidiaries in which such Continuing providing benefits similar to those provided under an Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) Plan to the same extent that as such employee was entitled, before the Closing Date, to credit for such service was recognized under a similar plansuch Employee Plan. With respect to the calendar year in which Parent or Buyer ceases to maintain any particular Employee Plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit each employee will be required or provided to the extent that (i) it results in a duplication given credit for amounts paid under such Employee Plan for purposes of benefitsapplying deductibles, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, activelyco-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible payments and out-of-pocket maximums under the corresponding Company Employee Program as though such amounts had been paid in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent accordance with the terms and conditions of such the parallel plan, programprogram or arrangement of Parent, policy, agreement Buyer or arrangementits Subsidiaries.
Appears in 1 contract
Samples: Merger Agreement (PENTAIR PLC)
Employment Matters. (a) During the period commencing on On the Closing and ending on the date that is twelve (12) months after the Closing (or if earlierDate, the date of the Continuing Employee’s termination of employment with Parent Buyer shall cause Company and the Parent Subsidiaries)Subsidiaries to (i) employ, Parent shall, at will (unless otherwise specified by a Contract in effect and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of binding on the Company or any Company Subsidiary on such Closing Date), all persons who are employees of such entities on the Closing Date and listed in Section 4.19 of the Disclosure Schedule (the “Affected Employees”), and (ii) employ such Affected Employees in positions and at compensation and benefit levels comparable to that enjoyed by such Affected Employees immediately prior to Closing. Notwithstanding anything in this Agreement to the contrary but subject to any Contracts existing and binding on the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubtDate, nothing in this Section 7.3 or elsewhere in this Agreement shall require Parent prevent Buyer from changing its compensation structure or employee benefit programs with respect to Affected Employees or obligate Buyer to provide any Parent Subsidiary particular type or amount of compensation or benefits to any Affected Employees, or shall be construed and resulting in any Affected Employee being employed other than on an “at will” basis or as obligating Buyer to employ any Person, nor shall it alter Affected Employee for any length of time following the at-will Closing Date. Upon the termination of employment status of any Continuing Employeeof the Affected Employees following the Closing Date, the Company will be liable for any and all severance obligations in effect on or after the Closing Date.
(b) From and after the Company Merger Effective TimeClosing Date until December 31, Parent shall2013, and Affected Employees shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees be maintained on the employee benefit plans of the Company and/or the Subsidiaries, other than the Company’s 401(k) plan as set forth in Section 7.3(d), below. Beginning as of January 1, 2014, Buyer shall provide, or any Company Subsidiary cause its Affiliates to provide, the Affected Employees with the opportunity to participate in employee benefit plans which are substantially comparable in the aggregate to the Benefit Plans and Arrangements in effect immediately prior to the Company Merger Effective Time.
(c) Parent shallClosing Date; provided, however, that the comparability of employee benefits provided or caused to be provided by Buyer and its Affiliates shall be determined without regard to, and neither Buyer nor any of its Affiliates shall have any obligation or liability whatsoever to provide, (i) equity-based benefits provided by the Company or any Subsidiary, or (ii) any retention or transaction bonus or severance compensation or benefits of any kind. To the extent any such benefits are provided pursuant to employee benefit plans of the Buyer or its Affiliate (the “Buyer Benefit Plans”), Buyer shall (A) cause the Parent Subsidiaries toAffected Employees and their eligible dependents to be covered under such Buyer Benefit Plans without a waiting period and without regard to any pre-existing condition, (B) provide Affected Employees with credit for each Continuing Employee’s length any co-insurance payments and deductibles made during the plan year in which the Closing Date occurs for the purposes of satisfying any applicable deductible, out of pocket, or similar requirements under such Buyer Benefit Plans, and (C) credit Affected Employees with their service with the Company and or a Subsidiary, as the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) case may be, for purposes of eligibility, eligibility and vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) accruals with respect to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee ProgramBuyer Benefit Plans.
(dc) Without limiting the generality of Section 7.8(a)12.13, (i) cash incentive bonuses for calendar year 2023 this Section 7.3 shall be treated as set forth in Section 7.8(d)(i) binding upon and inure solely to the benefit of each of the Company Disclosure Scheduleparties to this Agreement, and (ii) with respect nothing in this Section 7.3, expressed or implied, is intended to each Company 2015 Plan Restricted Share that is issued and outstanding as confer upon any other Person any rights or remedies of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date nature whatsoever under or by reason of this Agreement) that shall not have been satisfied Section 7.3 and no provision of this Section 7.3 will create any third party beneficiary rights in full through receipt of the Merger Consideration and Fractional Share Consideration in the Mergerany current or former employee, if anyofficer, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding director or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees individual independent contractor of the Company or any Company Subsidiary in respect of continued employment (or resumed employment) or service or any other than any communications consistent matter.
(d) Notwithstanding anything in all material respects with prior communications made by this Agreement to the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreementcontrary, the Company shall, will terminate its 401(k) plan prior to the extent not prohibited by applicable Law, (i) provide Parent with a copy Closing and Seller will retain any Losses or liabilities arising out of the intended communication, (iioperation or termination of the Company’s 401(k) give Parent a reasonable period of time plan. Buyer agrees to review assume responsibility for the administrative aspects associated with the post-termination and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee winding up of the Company 401(k) plan, but Seller and Buyer expressly agree that Buyer shall not assume any liabilities or Losses arising out of or relating to the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii401(k) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Employment Matters. (a) During At the period commencing on Closing, Buyer shall cause the Closing and ending on Company to continue the date that is twelve (12) months after the Closing (or if earlier, the date employment of all of the Continuing EmployeeCompany’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary employees as of the Company Merger Effective Time Closing Date (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary ). Such offers of employment shall include an hourly rate or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closingsalary, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Scheduleas applicable, and (iii) other compensation and aggregate employee benefits that are no less favorable, in the aggregate, favorable than those provided to in effect for such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to Employees as of the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeDate.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for For purposes of eligibility, vesting and benefit entitlement to benefits, including entitlement to, and level of, paid time off and vacation benefits (but not for accrual of pension benefits), each Continuing Employee shall be given credit for service with the Company under any employee vacation, severance or paid time off benefit plan, program, policy, agreement program or arrangement, arrangement of the Buyer or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries its Affiliates in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) the “Buyer Benefit Plans”), to the same extent that such service credit was recognized provided under a similar plancomparable Benefit Plans, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that but in no case where such prior service credit will be required or provided to the extent that (i) it results would result in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release . For purposes of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or Buyer Benefit Plans providing welfare benefits to (i) Continuing Employees, Buyer shall use commercially reasonable efforts, or shall cause its Affiliates to, as applicable, waive all limitations as to preexisting conditions, exclusions, waiting periods periods, actively-at-work requirements, and service conditions requirements to show evidence of good health with respect to participation and coverage requirements applicable to the Continuing Employees under any such Buyer Benefit Plan provided to the Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or except to the extent that such preexisting condition limitationsconditions, exclusions, waiting periods, actively-at-work requirements, and requirements and waiting periods to show evidence of good health would not have been satisfied or waived apply under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursanalogous Benefit Plan.
(gc) Prior On and after the Closing Date, Buyer shall not take any actions that would result in obligations or liabilities to making any broad-basedSeller or its Affiliates under the WARN Act, written communications or under other applicable Laws requiring notice of plant closings, relocations, mass layoffs, reductions in force or similar actions. On and after the Closing Date, Buyer shall be responsible for complying with the WARN Act and any and all obligations under other applicable Laws requiring notice of plant closings, relocations, mass layoffs, reductions in force or similar actions (and for failures to so comply), in any case, applicable to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faithContinuing Employees.
(hd) During Effective upon the Interim PeriodClosing, Buyer shall establish a bonus pool to pay incentive compensation to the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8Continuing Employees as set forth on Schedule 5.15(d).
(ie) Nothing Notwithstanding anything in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee 5.15 or former employee of the Company or the Company Subsidiaries, other than the Parties to otherwise in this Agreement and their respective successors and permitted assignsto the contrary, (ii) no provision of this Agreement is intended to, or shall, constitute or create be deemed to constitute the establishment or adoption of, or an employment agreement or create amendment to, any right in any Continuing Employee Benefit Plan, Buyer Benefit Plan or any other Person employee benefit plan (within the meaning of Section 3(3) of ERISA), and no person shall have any claim or cause of action, under ERISA or otherwise, in respect of any provision of this Agreement as it relates to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any such employee benefit plan, program, policy, agreement employment or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementotherwise.
Appears in 1 contract
Samples: Securities Purchase Agreement (Accel Entertainment, Inc.)
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except Effective as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee of immediately prior to the Closing, Seller will have terminated each of the Company Employees and Xxxxxxx X. Xxxxxx, except for the Assigned Employees. The written employment agreement of each Assigned Employee will be amended and assigned to Buyer for continuing employment with Buyer thereunder. Buyer will make offers of at-will employment to all Company Employees other than the Assigned Employees and Xxxxxxx X. Xxxxxx, subject to its standard pre-hiring conditions and screening procedures. The Company Employees who accept employment with Buyer, including the Assigned Employees, are referred to as the “Hired Employees.” All Hired Employees will become employees of Buyer effective as of the Closing.
(ii) target annual or other short-term periodic cash incentive Buyer will provide to the Hired Employees compensation, bonus opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorablewhich are, in the aggregate, than those comparable to the compensation, bonus opportunities and employee benefits provided to such Continuing Employee the Company Employees immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, Closing Date. Each Hired Employee will be given credit for his or retention, change-in-control or other special or non-recurring compensation or benefits provided her years of service with Seller prior to the Closing shall be taken into account Date for purposes of Parent’s obligations benefit accruals, determining eligibility to participate in and vesting under this Section 7.8(a). For the avoidance employee benefit plans of doubt, nothing in this Agreement shall require Parent Buyer or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries its Affiliates in which such Continuing Employee is Hired Employees become eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to after the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with Closing Date. With respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain welfare or fringe benefit plan maintained by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding Buyer or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program its Affiliates in which any Continuing Employee participates that provides health Hired Employees become eligible to participate on or welfare benefits to after the Closing Date, (iA) Buyer will waive all limitations as to preexisting conditions, exclusions, exclusions and waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employeesthe Hired Employees (and their covered dependents), other than any such limitations applicable that are in effect with respect to any Hired Employee (or his or her covered dependents) and that have not been satisfied under the corresponding Company Employee Program or Benefit Plan immediately prior to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program Closing Date; and (iiB) honor Buyer will provide each Hired Employee with credit for any payments, charges deductibles and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and maximum out-of-pocket maximums requirements paid by such Hired Employee for the then current plan year under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which Benefit Plan immediately prior to the Closing occursDate. Nothing in this Agreement, express or implied, is intended to or shall confer upon or be construed to confer upon any Person not a party to this Agreement, including any Hired Employee or legal representative thereof, any rights or remedies (including any right to employment for any specified period or rights to any specific benefits or compensation) of any nature or kind whatsoever under or by reason of this Agreement; nor shall Buyer or its Affiliates be prevented from promoting, demoting, terminating or taking any other action (including, without limitation, altering at-will status) with respect to any Hired Employee.
(giii) Prior to making any broad-based, written communications to Buyer and Seller agree that the employees consummation of this Agreement does not result in the Hired Employees experiencing a separation of service for purposes of Section 409A of the Company or Code and any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by severance under the Company or Parentwritten employment agreements assigned to Buyer pursuant to Section 5(h)(i). Buyer will be responsible for and pay severance obligations under the written employment agreements identified Section 5(h)(iii) pertaining to compensation or benefits matters that are affected by of the transactions contemplated by this Agreement, the Company shallDisclosure Schedule, to the extent such severance obligations arise out of (A) the termination of any such Assigned Employee who does not prohibited become a Hired Employee and (B) any such Assigned Employee that becomes a Hired Employee, is terminated by applicable LawBuyer within one year following the Closing Date, (iand who would have been entitled to severance under his or her written employment agreement identified on Section 5(h)(iii) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time Disclosure Schedule if terminated prior to review and comment on the communication and (iii) consider any such comments in good faithClosing.
(hiv) During Buyer will be responsible for providing continuation coverage required under COBRA to all such employees, former employees or their dependents of Seller who are or become “M&A Qualified Beneficiaries” (as such term is defined in Treasury Regulations §54.4980B-9) as a result of the Interim Period, the Parent Parties consummation of this Agreement and the Company and the Company Subsidiaries shall, and agree any former employee of Seller that is receiving continuation coverage under COBRA or any similar state Law as of immediately prior to cause their applicable Affiliates to, cooperate Closing. Buyer will be responsible for all administrative duties required in connection with each other to accomplish the matters addressed by this Section 7.8providing continuation coverage under COBRA or any similar state Law.
(iv) Nothing in this Each Hired Employee who receives an “eligible rollover distribution” (within the meaning of Section 7.8 shall (i402(c)(4) confer any rights upon any Personof the Code) from a Company Benefit Plan will be eligible to rollover such distribution, including any Continuing Employee participant loan under a Company Benefit Plan that is part of such “eligible rollover distribution,” into an account in the tax-qualified defined contribution plan which will be maintained by Buyer or former employee an Affiliate of Buyer for the Hired Employees.
(vi) Not more than forty-five (45) days following the three (3)-month anniversary of the Company or the Company SubsidiariesClosing Date, other than the Parties Buyer shall provide to this Agreement Seller written evidence reasonably satisfactory to Seller and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability that all payments of the Company, Bonus Amount were made to the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent Incentive Plan Recipients in accordance with the terms of such plan, program, policy, agreement or arrangement.Seller’s instructions set forth on Schedule A.
Appears in 1 contract
Samples: Asset Purchase Agreement (Core Molding Technologies Inc)
Employment Matters. (a) During As soon as reasonably practicable following the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shallEffective Time, and shall cause subject to applicable law, each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to who is employed in the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary United States as of the Company Merger Effective Time Closing Date and who becomes an employee of Parent or the Surviving Corporation in the United States immediately following the Closing (each, a “"Continuing Employee” and collectively, the “Continuing Employees”") with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided shall be eligible to such Continuing Employee immediately prior participate in Parent's employee benefit plans subject to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) terms and conditions of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeeplans.
(b) From For purposes of eligibility, vesting and, except with respect to any pension benefit plan, calculation of benefits under each of Parent's employee benefit plans, programs and after the Company Merger Effective Timearrangements in which a Continuing Employee becomes a participant, Parent shallshall grant, and or shall cause the Surviving Corporation to grant, each Parent Subsidiary, as applicable, to honor, in accordance such Continuing Employee credit for all service with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any a Company Subsidiary and in effect immediately prior to the extent such service was credited under the corresponding Company Merger Effective Timeor Company Subsidiary Employee Benefit Plan, if any, provided no credit will be given for any service that would result in a duplication of benefits under any such plan.
(c) Parent shallshall provide, and or shall cause the Parent Subsidiaries toSurviving Corporation to provide, provide credit for to each Continuing Employee (and each Continuing Employee’s length 's beneficiaries and dependents) immediate coverage under a health benefit plan that is an "employee welfare benefit plan" within the meaning of service with Section 3(1) of ERISA that is maintained by the Company and Surviving Corporation or Parent solely for the Company Subsidiaries benefit of its employees. Parent shall waive, or cause the Surviving Corporation to waive, any applicable pre-existing condition exclusion (as well as service with any predecessor employer of to the extent such exclusion did not apply to a pre-existing condition under the corresponding Company or any Company SubsidiarySubsidiary Employee Benefit Plan, if any) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off such health benefit plan, programand, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar planapplicable deductibles, program, policy, agreement co-payments or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any health benefit plan, program, policy, agreement each Continuing Employee shall receive credit under such health benefit plan for all amounts paid by them under the Company's or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such Company Subsidiary's health benefit plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Merger Agreement (Atmi Inc)
Employment Matters. (a) During Seller will terminate the period commencing employment of all of the current Employees immediately prior to Closing. Although Buyer shall be under no obligation to hire Employees previously employed by Seller, Buyer may, in its discretion, hire any or all of such employees as new employees of Buyer. Employees of Seller who are hired by Buyer are herein called “Hired Employees.” Terminated Employees of Seller to whom Buyer makes no offer of employment on the Closing Date or within three (3) business days thereafter are herein called the “Non-Offer Employees.” While Buyer has no obligation to do so, Buyer intends to extend offers of employment to no fewer than 70 of the Employees for employment by Buyer in the same position and ending on with the date that is twelve same base compensation, and with employment benefits believed by Buyer to be substantially the same as the value of those employment benefits previously provided by Seller to such Hired Employees immediately prior to the Execution Date.
(12b) months Subject to Section 5.7(d), within 15 days after the Closing (or if earlierDate, the date Seller shall pay all of the Continuing Employee’s termination Employees terminated by Seller at the time of employment with Parent or immediately prior to Closing for all vacation time and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiaryother paid time off, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that which they are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided entitled prior to the Closing Date. Subject to Section 5.7(d), Seller shall be taken into account solely responsible to pay for purposes all other liabilities which may exist or arise as a result of Parentwage claims, severance claims, benefit claims, or other employment related claims of any sort of any employees of Seller with respect to all periods prior to the Closing Date.
(c) Buyer and Seller agree that Buyer shall not be deemed a successor company to Seller in connection with any employment related arrangement or benefit plan to which the present or former employees of Seller are or were entitled (including any severance arrangements). Nothing in this Agreement shall confer upon any of the Hired Employees or former employees of Seller any rights or remedies, including any right to employment, or continued employment for any specified period, of any nature whatsoever under or by reason of this Agreement or the consummation of the transactions contemplated by this Agreement. Buyer shall have the right, at any time and in its sole discretion, to amend or terminate any benefit plan that Buyer may make available to any Hired Employee, without the consent of any person covered thereunder.
(d) Buyer and Seller agree concurrent with an extension of an offer of employment by Buyer to an Employee terminated by Seller, Buyer will offer to recognize and assume such Employee’s obligations accrued, unused paid time off per Seller’s books and records (“PTO”) in the lesser amount of the accrued, unused PTO earned by such employee as of the Closing Date and PTO equal to 80 hours, conditioned upon such Employee becoming a Hired Employee and such Hired Employee, Seller and Buyer signing an agreement in which such Hired Employee consents to his or her accrued PTO (up to 80 hours) to be transferred to and assumed by Buyer and agrees to look solely to Buyer to honor transferred PTO (a “PTO Transfer Agreement”) in substantially the form of Exhibit 5.7(d) to this Agreement. Seller agrees and acknowledges each Hired Employee may freely decide whether he or she wants to accept Buyer’s offer of assumption of his or her accrued, unused PTO subject to the terms of the PTO Transfer Agreement and Buyer shall not be required or expected under this Section 7.8(a)Agreement to encourage any Hired Employee to accept Buyer’s offer. For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately unused PTO accrued by Hired Employees prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for their termination by Seller that Buyer assumes under each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this executed PTO Transfer Agreement, collectively shall solely constitute the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faithAssumed PTO Obligations.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Employment Matters. (a) During The Parties currently anticipate that the period commencing on senior management at the Hospital shall be retained following the Closing Date, will continue to function in their current capacities at the Hospital and ending on be integrated into the date overall management team operations for LCMC. Subject to the ongoing reviews that would be customary with respect to their positions, it is twelve intended that the Chief Executive Officer (12“CEO”) of the Hospital will report to the LCMC CEO, as well as to the Newco Board. Other senior management of the Hospital will report to its CEO, and will be expected also to maintain a “dotted line” responsibility to corresponding senior management of LCMC. The Parties also agree that Newco shall offer employment to all or nearly all other employees of the Facilities, and maintain such persons’ employment and their current length of service credit, subject to customary pre-employment background checks and the exigencies of the market place, for a period of no less than eighteen (18) months after following the Closing (or if earlierDate, unless otherwise approved by the date of Newco Board. The Parties acknowledge that LCMC shall not immediately integrate the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shallFacilities’ existing human resource functions, and shall cause each Parent Subsidiarywork with current Hospital management on a collaborative and coordinated basis to evaluate all employment-related programs and functions, so as applicableto develop an approach that meets the needs of all Hospital employees, toand positions the LCMC System as the region’s employer of choice. LCMC also expects to add staffing, provide each individual who is employment and career advancement infrastructure to facilitate internal advanced educational and career opportunities for Hospital employees as an employee integral part of the Company or any Company Subsidiary immediately prior to LCMC workforce. Notwithstanding the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubtforegoing, nothing in this Agreement Section 10.1 shall require Parent limit the right of LCMC, Newco or any Parent Subsidiary their Affiliates to employ any Person, nor shall it alter terminate the at-will employment status of any Continuing Employeeemployee of Newco or to determine or change the terms and conditions of such employment at any time in accordance with entity policy, procedures and processes.
(b) From and after Newco shall be solely responsible for providing continuation coverage under the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company current or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangementformer Hospital employee, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company dependents thereof, who have a “qualifying event” on, prior to, or any Company Subsidiaryafter the Closing Date (each of the foregoing a “Covered COBRA Electee”); provided that the District shall be responsible for all costs and expenses incurred by Newco in providing such COBRA coverage. Newco shall, except that no such prior service credit will be required or provided to as soon as practicable following the extent that end of each calendar quarter, send an invoice for (i) it results in a duplication the amount of benefits, or benefits paid by Newco’s self-insured group health plans on behalf of any Covered COBRA Electee during such period (which are not reimbursable by Newco’s stop-loss insurance policy) minus (ii) the amount of COBRA premiums paid by all Covered COBRA Electees during such service was not recognized under period. The District shall remit the corresponding Company Employee Program.
amount so invoiced to Newco within thirty (d30) Without limiting the generality days of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Shareinvoice.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Cooperative Endeavor Agreement
Employment Matters. (a) During Buyer will offer employment, as of the period commencing close of business on the Closing Date, on an at-will basis, to each employee (i) of any Selling Company who is actively and ending on exclusively employed in the date that is twelve (12) months after the Closing (or if earlier, the date operation of the Continuing Employee’s termination of employment with Parent Business and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an not listed on Schedule 6.5(a)(i) and (ii) to each employee of the any Selling Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time otherwise listed on Schedule 6.5(a)(ii) (each, a an “Continuing Active 41 Table of Contents Employee” and collectively”), the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those the compensation and benefits that have been provided to such Continuing Employee persons by the Selling Companies immediately prior to the Closing, provided, however, that no postexcept for changes in the costs of benefits required by third-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to party providers of such benefits. An Active Employee who accepts an offer of employment as of the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Date with Buyer is referred as a “Hired Active Employee.
” (b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a)the foregoing, (i) cash incentive bonuses for calendar year 2023 Buyer shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all any preexisting condition limitations as otherwise applicable to preexisting conditionsemployees and their eligible dependents under any plan of Buyer or its subsidiaries that provides health benefits in which Hired Active Employees may be eligible to participate following the Closing Date, exclusions, waiting periods and service conditions other than any limitations that were in effect with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable such employees as of the Closing Date under the corresponding analogous Company Employee Program or to the extent that such preexisting condition limitationsPlan, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any paymentsdeductible, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible co-payment and out-of-pocket maximums incurred by the Hired Active Employees and their eligible dependents under the corresponding Company Employee Program 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 applicable deductibles, co-payments or out-of-pocket maximums or under health plans of Buyer and its subsidiaries in which they are eligible to participate after the Closing Date in the same plan year in which such deductibles, co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broador out-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiariesof-pocket maximums were incurred, (iii) constitute waive any waiting period limitation or evidence of insurability or at work requirement that would otherwise be treated as applicable to a Hired Active Employees and his or her eligible dependents on or after the Closing Date, in each case to the extent such employee or eligible dependent had satisfied any similar limitation or requirement under an amendmentanalogous Company Plan prior to the Closing Date, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit with respect to any Company Plan, recognize the ability service with the Company prior to the Closing (based upon the Company’s service records as provided to Buyer) of the CompanyHired Active Employees; provided, the Company Subsidiarieshowever, Parent or the Parent Subsidiaries to amendthat such recognition shall not result in a duplication of benefits, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent and (iv) credit Hired Active Employees with the terms applicable amount of such plan, program, policy, agreement or arrangement.Rolled-Over Accrued Vacation pursuant to Section 5.8(b). 6.6
Appears in 1 contract
Samples: Master Asset Purchase Agreement
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent Seller shall, and shall cause the Parent Subsidiaries toIndian Seller and Seller’s other Affiliates, provide credit for each Continuing Employee’s length of service to cooperate with the Company and Buying Parties in their efforts to hire the Company Subsidiaries (Business Employees, effective as well as service with any predecessor employer of the Company or any Company Subsidiary) Closing (or, in the case of Business Employees whose employment remains subject to certain visa restrictions, following the Closing), for purposes of eligibility, vesting and benefit level under carrying on the Business post-Closing (any such Business Employee who becomes an employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company Buying Parties or any Company Subsidiarytheir Affiliate in connection with the transactions contemplated hereunder, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program“Buyer Business Employees”).
(db) Without limiting Buyer shall, before the generality Closing, extend offers for employment of Section 7.8(a)comparable compensation terms with Buyer, (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) the Indian Buyer or their Affiliate to all of the Company Disclosure ScheduleBusiness Employees, and with employment commencing effective as of the Closing (ii) or, in the case of Business Employees whose employment remains subject to certain visa restrictions, as soon as feasible following the Closing); except that, with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective TimeBusiness Employees located in India, the right Indian Buyer or its Affiliate shall extend offers of the holder thereof to any payment in respect employment of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance comparable compensation terms with the formula set forth Indian Buyer or its Affiliate to all such Business Employees located in Section 7.8(d)(ii) of the Company Disclosure Schedule) India (no later than five (5) Business Days following days prior to the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) date of the Company Disclosure Schedule.
Indian Closing), with employment commencing effective as of the Indian Closing. The Buyer Business Employees shall be eligible to participate in Buyer’s employee benefit plans on the same basis as similarly situated employees of the Buyer, the Indian Buyer of their Affiliate, for which such employees are eligible (fthe “Buyer Benefit Plans”). The Buyer shall recognize the prior service with Seller, the Indian Seller or their Affiliates of each of the Buyer Business Employees (other than Buyer Business Employees located in India) Parent for purposes of determining eligibility to participate, vesting and entitlement to benefits where length of service is relevant (including, but not limited to, for purposes of vacation, sick and paid time-off accrual and severance benefits) under Buyer Benefit Plans. Buyer shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditionscondition exclusions (or actively at work or similar limitations), exclusions, evidence of insurability requirements and waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employeesthe Buyer Business Employees under any medical, dental and vision plans that such employees may be eligible to participate in after the Closing Date, unless the same is not permitted by an insurer or other than limitations applicable provider under the corresponding Company Employee Program or to terms of any such plan. Buyer shall also provide the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Buyer Business Employees (and their eligible dependentsdependents with credit for any co-payments, deductibles and offsets (or similar payments) that were applied toward made under Seller’s employee benefit plans for the deductible year in which the Closing Date occurs under Buyer’s medical, dental and out-of-pocket maximums under vision plans for the corresponding Company Employee Program in purposes of satisfying any applicable deductiblesdeductible, out-of-pocket maximums pocket, or co-payments similar requirements under a corresponding Parent Employee Program during such Buyer Benefit Plans in the calendar year in which the Closing Date occurs, in the amounts specified by Seller in a writing provided to Buyer at Closing.
(gc) Prior Seller and Buyer agree that Selling Parties (or their applicable Affiliates) shall remain responsible to making any broad-based, written communications furnish 2012 Forms W-2 to the Buyer Business Employees and 2012 Forms W-2 and W-3 with respect to the Buyer Business Employees to the Social Security Administration with respect to all periods through Closing.
(d) Seller shall pay, and will cause the Indian Seller or their Affiliates to pay, all compensation or other money due to the Buyer Business Employees with respect to their employment and resignation of employment with Seller, the Indian Seller or such other Affiliates through and including day that is one (1) Business Day prior to the Closing Date, including, in any event, any sale bonuses, severance, change in control benefits, other bonuses (including variable pay in India), commissions, payments of gratuity as required by law and all other amounts required to be paid to such employees pursuant to applicable law, agreements, policies or awards of Seller, the Indian Seller or their Affiliates through one (1) Business Day prior to the Closing Date or as a result of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by consummation of the transactions contemplated by this Agreement and the Indian Purchase Agreement, the Company shall, provided that if Buyer’s failure to the extent not prohibited by applicable Law, (i) provide Parent comply with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing its covenants set forth in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right 5.7 results in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any such compensation or benefits fromother money coming due, then Buyer shall pay the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementsame.
Appears in 1 contract
Employment Matters. (a) During The Company shall use its commercially reasonable efforts to cooperate with the period commencing on Parent in its efforts to cause not less than 70% of the Company’s and its Subsidiaries’ employees to accept employment with the Parent or its Subsidiaries and to execute and deliver an Offer Letter and CIA Agreement to be effective upon consummation of the Transaction.
(b) Prior to the Closing and ending on the date that is twelve (12) months after the Closing (or if earlierDate, the date of Company shall cooperate with Parent, if and to the Continuing Employee’s termination of employment with extent requested by the Parent, to (i) allow the Parent and its Representatives to conduct employee orientation sessions (with such sessions to be held during scheduled work hours at times reasonably agreed to by the Parent Subsidiaries), Parent shall, Company and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee the Parent) and to meet with employees or independent contractors of the Company or any of its Subsidiaries (either individually or in groups) during breaks, outside of scheduled work hours or as otherwise agreed to by the Company Subsidiary and the Parent, and (ii) provide information to employees regarding Parent’s (or any of its Subsidiaries’) employee benefit plans and allow the Parent and its representatives to conduct an open enrollment period to enable potential continuing employees to make benefit enrollment elections under such employee benefit plans of the Parent (or any of its Subsidiaries) that will be made available (if any) to continuing employees on and after the Closing.
(c) As soon as practicable following the Closing Date, Parent shall (or shall cause one or more of its Subsidiaries to) provide all individuals who are employed by Company or any of its Subsidiaries immediately prior to the Company Merger Effective Time and who remains remain employed by with Parent or any Parent Subsidiary as of following the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with employee benefits (iother than equity-based awards) except as otherwise mutually agreed between that are substantially similar in the aggregate to those employee benefits provided to similarly situated employees of Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee its Subsidiaries as of immediately prior to the Closing, Effective Time. Any individual (whether employed by the Company as of the date hereof or hired by the Company after the date hereof but prior to the Closing Date) who is not offered employment with Parent or one or more of its Subsidiaries pursuant to an Employment Document or Offer Letter that provides (i) base compensation at least equal to such individual’s base compensation at the Company as of the date hereof and (ii) base compensation and target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits bonuses that are no less favorable, favorable to such individual than those in place at the Company as of the date hereof shall not be included in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account denominator for purposes of Parent’s obligations under this the thresholds set forth in Section 7.8(a5.9(a) or Section 7.3(j). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(bd) From and after As soon as practicable following the Company Merger Effective TimeClosing Date, Parent shall, and shall (or shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees one or more of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent its Subsidiaries to, ) provide any Continuing Employees with service credit (if applicable) with respect to all employee benefit plans and programs (other than equity plans) maintained by Parent or its applicable Subsidiaries in which the Continuing Employees participate or become eligible to participate for each such Continuing Employee’s length of Employees’ service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting participation and benefit level under any employee vacationvesting, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that permitted by the applicable plan or program (i) it results except to the extent such service credit would result in a duplication of benefits). With respect to any welfare benefit plans provided under any Employee Plans maintained by Parent or its applicable Subsidiaries for the benefit of the Continuing Employees on and after the Closing Date, Parent shall (or (iishall cause its applicable Subsidiaries to) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), use commercially reasonable efforts to (i) cash incentive bonuses give effect, in determining any deductible limitations, coinsurance or out-of-pocket maximums applicable to a Continuing Employee, to any amounts previously credited for such purposes under the applicable Employee Plans for the calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of which the Closing Date occurs, with respect to similar plans maintained by the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share any health benefit plans maintained by Parent or its applicable Subsidiaries (excluding any disability plans maintained by Parent or its Subsidiaries), ensure that is issued and outstanding as of immediately no pre-existing condition limitations or exclusion shall apply with respect to the Continuing Employees (except to the extent any such limitation or exclusion applied prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to Closing under the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted ShareEmployee Plan).
(e) The Company shall use commercially reasonable efforts to take all actions that may be reasonably requested by the Parent and in writing prior to the Closing Date with respect to (i) causing one or more Employee Plans, International Employee Plans or arrangements with any payroll, benefits or human resources service provider to the Company shall take the actions described in Section 7.8(e) or any Subsidiary to terminate or be amended as of the Company Disclosure ScheduleClosing Date or as of the day immediately preceding the Closing Date (in each case as specified by the Parent), (ii) causing benefit accrual or entitlement under any Employee Plan or International Employee Plan to cease as of the Closing Date, (iii) causing the continuation on and after the Closing Date of any insurance policy or arrangement relating to any Employee Plan or International Employee Plan and (iv) facilitating the merger of any Employee Plan or any International Employee Plan into any employee benefit plan maintained by the Parent (or any of its Subsidiaries).
(f) Parent Nothing contained in this Section 5.9 or otherwise in this Agreement, express or implied, shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as be construed to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under restrict in any way the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees ability of the Company Parent, the Surviving Corporation or any Company Subsidiary of their Affiliates to (A) amend, terminate or modify the duties, responsibilities or employment of any employee or independent contractor, (B) to amend, terminate or modify any Employee Plan, International Employee Plan, compensation or benefit arrangement or any other than any communications consistent in all material respects with prior communications made employee benefit plans or programs maintained by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, Surviving Corporation or their Affiliates at any time or from time to the extent not prohibited by applicable Law, time or (iC) provide Parent with a copy of the intended communicationgrant any employee or independent contractor any special right for compensation, (ii) give Parent a reasonable period be treated as an amendment or other modification of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits frombenefit arrangement of the Parent, the Company, the Company SubsidiariesSurviving Corporation or any of their Affiliates, Parent including any Employee Plan or the Parent SubsidiariesInternational Employee Plan, or (iii) constitute be construed to create any third-party beneficiary rights in any present or be treated as an amendmentformer employee, modificationservice provider, adoptionindependent contractor, suspension consultant, any such Person’s alternate payees, dependents or termination of any Company Employee Program beneficiaries or any Parent Employee Programother Person, whether in respect of continued service or resumed service, compensation, benefits or otherwise. Notwithstanding anything in this Agreement to the contrary, on and after the Closing, the employment of employees by the Parent, the Surviving Corporation or any of their Affiliates (ivas applicable) alter or limit shall be subject to the ability Parent’s usual terms, conditions and policies of employment, including the Parent’s policies regarding modifications of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any terms and conditions of them, consistent with the terms of such plan, program, policy, agreement or arrangementemployment.
Appears in 1 contract
Samples: Merger Agreement (AOL Inc.)
Employment Matters. (a) During the For a period commencing on of one (1) year following the Closing and ending on the date that is twelve (12) months after the Closing (or if earlierDate, the date of Companies shall (i) continue to employ, in substantially the Continuing Employee’s termination of same employment position and with Parent and substantially the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, same duties as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and Closing Date, those persons who remains employed by Parent or any Parent Subsidiary as are employees of the Company Merger Effective Time Companies on the Closing Date and (eachA) whose principal place of employment is at the Companies’ facilities in Arkansas or Virginia (other than Xxxxxxx who shall not be considered an Affected Employee for any purpose hereunder) or (B) who are set forth in Section 5.3(a) of the Companies Disclosure Schedule, a “Continuing Employee” and collectivelyincluding any such employees not actively at work due to injury, vacation, military duty, disability or other leave of absence (the “Continuing Affected Employees”), and (ii) with (i) except as otherwise mutually agreed between Parent and provide or cause to be provided to each such Continuing Affected Employee, (A) a base salary or base wage rate that is not less than level and cash bonus opportunity substantially comparable in the base aggregate to the salary or base wage rate provided level and cash bonus opportunity to which such Continuing Affected Employee was entitled to receive immediately prior to the ClosingClosing Date; provided, (ii) target annual or other shorthowever, that the aggregate cash bonus opportunities available to the Affected Employees, as a group, during the one-term periodic cash incentive opportunities that are year period following the Closing shall not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) exceed 15% of the Company Disclosure Scheduleaggregate base salaries of all of the Affected Employees (the “Bonus Opportunities Pool”) during such period (it being understood that certain Affected Employees may receive cash bonuses in excess of 15% of his or her base salary, so long as the aggregate cash bonus opportunities available to the Affected Employees, as a group, does not exceed the Bonus Opportunities Pool, unless Parent, in its sole discretion, determines to make payments in excess of the Bonus Opportunities Pool), and (iiiB) other compensation and employee benefits (excluding benefits provided pursuant to a defined benefit plan) that are no less favorablesubstantially comparable, in the aggregate, than to those provided pursuant to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan Plans as in effect on the date of this Agreement) ; provided, however, in the event that shall not have been satisfied in full through receipt the employment of any Affected Employee is terminated prior to the first anniversary of the Merger Consideration Closing Date other than (1) by the Companies for “cause” (as defined in any Company Plan set forth in Section 3.11(a) of the Companies Disclosure Schedule applicable to such Affected Employee) or (2) voluntarily by the Affected Employee, unless such voluntary termination is due to a relocation of such Affected Employee’s principal place of employment by more than fifty (50) miles, the Companies shall provide or cause to be provided to such Affected Employee, until the first anniversary of the Closing Date, the payments and Fractional Share Consideration benefits set forth in subsection (ii) of this Section 5.3(a); provided, that the Mergercash bonus opportunity available to such Affected Employee shall be prorated based on the amount of time the Affected Employee is employed by Parent during that year. Periods of employment with the Companies (including, if anywithout limitation, any current or former Affiliate of the Companies or any such predecessor, to the extent previously recognized under the Company Plans), shall remain be taken into account for purposes of determining, as applicable, the eligibility for participation and vesting of any Affected Employee under employee benefit plans offered by operation Parent or an Affiliate of applicable Law as an obligation Parent to Affected Employees after the Closing to the extent such periods of employment would be recognized under similar Company Plans in which such Affected Employee participated or was eligible to participate immediately prior to the Surviving Entity and shall be settled in cash (and Closing; provided, for the avoidance of doubt, such cash payment, if any, that the foregoing shall be determined not apply to the extent that its application would result in accordance with the formula set forth in Section 7.8(d)(ii) a duplication of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights benefits with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) same period of the Company Disclosure Schedule.
(f) service. Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as any limitation on medical coverage of Affected Employees due to preexisting conditions, exclusions, waiting periods and service pre-existing conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program applicable group health plan of Parent or an Affiliate of Parent to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods limitations would not have been satisfied or waived under a group health plan of the comparable Company Employee Program Companies or their Affiliates immediately prior to the Closing Date, and (ii) honor credit each Affected Employee with all deductible payments and co-payments paid by such employee under the group health plan of the Companies or their Affiliates prior to the Closing Date during the year in which the Closing occurs for the purpose of determining the extent to which any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the such employee has satisfied his or her deductible and whether he or she has reached the out-of-pocket maximums maximum under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums group health plan of Parent or co-payments under a corresponding an Affiliate of Parent Employee Program during the calendar year in which the Closing occursfor such year.
(gb) Prior to making any broad-basedExcept for the payment obligations in Section 5.3(a), written communications to the employees of the Company nothing contained in this Section 5.3 or any Company Subsidiary (other than any communications consistent elsewhere in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shallexpress or implied, to the extent not prohibited by applicable Law, shall (i) provide limit the right of Parent with a copy or its Affiliates to terminate the employment or services of, or to reassign or otherwise alter the status of, any Affected Employee or contractor or consultant of the intended communicationCompanies and their Subsidiaries after the Closing, or to change in any manner the terms and conditions of his or her employment or other service to or engagement by the Companies and their Subsidiaries, (ii) give be construed to prevent, and no action by the Companies or their Subsidiaries prior to the Closing Date shall limit the ability of, Parent a reasonable period of time or its Affiliates from terminating or modifying to review and comment on the communication and any extent or in any respect any employee benefit plan that Parent or its Affiliates may establish or maintain or (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated construed as an amendment, modification, adoption, suspension or termination of amending any Company Employee Program or any Parent Employee Program, or (iv) alter or limit Plan as in effect immediately prior to the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementClosing.
Appears in 1 contract
Samples: Merger Agreement (Perrigo Co)
Employment Matters. (a) During the For a period commencing on of one year following the Closing and ending on the date that is twelve (12) months after the Closing (or if earlierDate, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent Buyer shall, and or shall cause each Parent Subsidiary, as applicable, the Surviving Corporation and its Subsidiaries to, provide each individual who is an employee maintain for employees of the Company or any Company Subsidiary and its Subsidiaries immediately prior to the Company Merger Effective Time and Closing who remains employed by Parent continue in the employ of Buyer, the Surviving Corporation or any Parent Subsidiary as of their Subsidiaries immediately following the Company Merger Effective Time Closing Date (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with the following during their period of employment: base salary or wage rate and other material compensation and benefits (other than any incentive, equity, equity-based, deferred compensation, transaction-, change in control- or retention-related, or post-employment health and welfare compensation or benefits) which are substantially comparable in the aggregate to either (i) except those provided to the Continuing Employees under the terms of the Company Benefit Plans set forth on Schedule 4.13(a) immediately prior to the Closing or (ii) those provided to similarly-situated employees of Buyer, the Surviving Corporation or any of their Subsidiaries. No provision of this Agreement shall be construed as otherwise mutually agreed between Parent and such a guarantee of continued employment of any Continuing Employee, a base salary and this Agreement shall not be construed so as to prohibit or base wage rate that is not less than in any way limit Buyer, the base salary Surviving Corporation or base wage rate provided any of its Subsidiaries from having the right to terminate the employment of any Continuing Employee in accordance with applicable Law.
(b) Buyer shall use commercially reasonable efforts to give each Continuing Employee credit for his or her prior service as an employee of the Company (or any predecessor thereof) for purposes of eligibility to participate and level of accrual under any applicable vacation, paid time off and severance plans or programs sponsored, maintained or contributed to by Buyer or any of its Subsidiaries for such Continuing Employee that replaces any comparable Company Benefit Plan, to the same extent as recognized by the Company or any of its Subsidiaries as of immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than except to the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, extent such credit would result in the aggregate, than those provided to such Continuing Employee immediately prior to duplication of benefits for the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes same period of Parent’s obligations under this Section 7.8(a)service. For the avoidance of doubt, nothing in this Agreement notwithstanding the foregoing, Buyer shall require Parent or any Parent Subsidiary not be required to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or provide credit for service for benefit accrual purposes under any Company Subsidiary and in effect immediately prior to the Company Merger Effective TimeBenefit Plan that is a defined benefit pension plan.
(c) Parent shall, and Buyer shall cause the Parent Subsidiaries to, provide credit use commercially reasonable efforts to (i) waive for each Continuing Employee’s length Employee and his or her dependents, any waiting period provision, payment requirement to avoid a waiting period, pre-existing condition limitation, actively-at-work requirement and any other restriction that would prevent immediate or full participation under the group health plans of service with Buyer or any of its Subsidiaries applicable to such Continuing Employee to the extent such waiting period, pre-existing condition limitation, actively-at-work requirement or other restriction would not have been applicable to such Continuing Employee under the terms of the analogous group health plans of the Company and the Company its Subsidiaries (as well as service with any predecessor employer of the Closing, and (ii) give full credit under the group health plans of Buyer and its Subsidiaries applicable to each Continuing Employee and his or her dependents for all co-payments and deductibles satisfied prior to the Closing in the same plan year as the Closing, and for any lifetime maximums, as if there had been a single continuous employer.
(d) The parties acknowledge and agree that all provisions contained in this Section 7.3 are included for the sole benefit of the parties hereto. This Agreement is not intended by the parties to, and nothing in this Section 7.3 or otherwise in this Agreement, whether express or implied, shall, (i) constitute an amendment to any Company Benefit Plan or any Company Subsidiary) for purposes of eligibility, vesting and other employee benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of Buyer, the Company Surviving Corporation or any Company Subsidiaryof its Subsidiaries, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) create any obligation of the Company Disclosure Schedule, and parties hereto to any Person (iiother than the other parties hereto) with respect to each any Company 2015 Benefit Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored of Buyer or maintained by the Surviving Corporation or any of themtheir respective Affiliates, consistent with (iii) confer on any Continuing Employee or any other Person any right to continued employment or engagement by Buyer, the terms Surviving Corporation or any of such plan, program, policy, agreement their respective Affiliates or arrangement(iv) confer on any Continuing Employee or any other Person (other than the parties hereto) any rights or remedies (including third party beneficiary rights).
Appears in 1 contract
Employment Matters. (a) During Company’s Disclosure Schedule sets forth, (A) with respect to each current employee of the period commencing Company and its Subsidiaries (including any employee who is on a leave of absence, sick leave, disability leave or on layoff status subject to recall) (each, an “Employee”) (i) the Closing name of such Employee and ending on the date that as of which such Employee was originally hired by the Company or any of its Subsidiaries, and whether the Employee is twelve on an active or inactive status; (12ii) months after the Closing such Employee’s title; (or if earlier, iii) such Employee’s annualized compensation as of the date of this Agreement, including base salary, vacation and/or paid time off accrual amounts, bonus and/or commission potential, severance pay potential, and any other compensation forms; (iv) whether such Employee is not fully available to perform work because of disability or other leave and, if applicable, the Continuing basis of such disability or leave and the anticipated date of return to full service; (v) whether such Employee is employed by the Company or a Subsidiary of the Company; (vi) the facility at which such Employee is deemed to be located; (vii) each current benefit plan in which such Employee participates or is eligible to participate; and (viii) any governmental authorization, permit or license that is held by such Employee and that is used in connection with the Company’s business; and (B) with respect to each current and former Employee, whether such current or former Employee has executed the Company’s termination or one of employment its Subsidiaries’ standard form nondisclosure, confidentiality and assignment of inventions agreement.
(b) Company’s Disclosure Schedule contains a list of individuals who are currently performing services for the Company and its Subsidiaries and who are classified as “consultants” or “independent contractors,” the respective compensation of each such “consultant” or “independent contractor” and whether the Company or any of its Subsidiaries is party to a consulting or independent contractor agreement with the individual. Any such agreements have been delivered to Parent and are set forth on Company’s Disclosure Schedule. Any Persons now or heretofore engaged by the Parent Subsidiaries)Company or any of its Subsidiaries as independent contractors, Parent shallrather than employees, have been properly classified as such, are not entitled to any compensation or benefits to which regular, full-time employees are or were at the relevant time entitled, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee were and have been engaged in accordance with all applicable Laws.
(c) Each employment agreement for a current Employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent of its Subsidiaries or for any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate former Employees that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities contain provisions that are not less than the target annual or other short-term periodic cash incentive opportunities still operative is set forth on Section 7.8(a) Company’s Disclosure Schedule and a copy of each employment agreement and any amendment thereto has been provided to Parent. Except as set forth on the Company Company’s Disclosure Schedule, and the employment of each of the Employees is terminable by the Company or any of its Subsidiaries (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or except for non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to U.S. employees of the Company or any of its Subsidiaries located in a jurisdiction that does not recognize the “at will” employment concept) and neither the Company Subsidiary and in effect immediately nor any of its Subsidiaries have any obligation to provide any particular form or period of notice prior to terminating the employment of any of its Employees, except as set forth on Company’s Disclosure Schedule. Neither the Company Merger Effective Time.
(c) Parent shallnor any of its Subsidiaries have, and shall cause to the Parent Subsidiaries toKnowledge of Company, provide credit for each Continuing Employee’s length of service with no other Person has, (i) entered into any agreement that obligates or purports to obligate the Company and the Company or any of its Subsidiaries (as well as service with to make an offer of employment to any predecessor employer present or former Employee or consultant of the Company or any Company Subsidiaryof its Subsidiaries or (ii) for purposes of eligibility, vesting and benefit level under promised or otherwise provided any employee vacation, severance assurances (contingent or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension planother) to the same extent that such service was recognized under a similar plan, program, policy, agreement any present or arrangement former Employee or consultant of the Company or any of its Subsidiaries of any terms or conditions of employment with the Company Subsidiary, except that no such prior service credit will be required or provided to any of its Subsidiaries following the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee ProgramClosing.
(d) Without limiting the generality The Company has delivered to Parent accurate and complete copies of Section 7.8(a)all current employee manuals and handbooks, (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) employment policy statements and employment agreements of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Shareits Subsidiaries.
(e) Parent and (A) Except as set forth on the Company shall take the actions described in Section 7.8(e) of the Company Company’s Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent no Employee Program in which any Continuing Employee participates that provides health has given written notice terminating his or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions her employment with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by a Subsidiary, or terminating his or her employment upon a sale of, or business combination relating to, the Company or Parent) pertaining to compensation or benefits matters that are affected by in connection with the transactions contemplated by this Agreement; (B) to the Company’s Knowledge, no Employee, consultant or contractor is a party to or is bound by any employment contract, patent disclosure agreement, noncompetition agreement, any other restrictive covenant or other contract with any Person (other than the Company shallor any of its Subsidiaries), or is subject to any Order, any of which would reasonably be expected to have a material adverse effect in any way on (x) the performance by such Person of any of his or her duties or responsibilities for the Company or any of its Subsidiaries, or (y) the Company’s or any of its Subsidiaries’ business or operations; (C) to the extent not prohibited Company’s Knowledge, no current Employee, contractor or consultant is in violation of any term of any employment contract, patent disclosure agreement, noncompetition agreement, or any other restrictive covenant to a former employer or entity relating to the right of any such Employee, contractor or consultant to be employed or retained by applicable Lawthe Company or any of its Subsidiaries; and (D) neither the Company nor any of its Subsidiaries are and have never been, engaged in any dispute or litigation with an Employee regarding intellectual property matters.
(f) Except as set forth on Company’s Disclosure Schedule, (i) provide Parent with a copy neither the Company nor any of the intended communication, its Subsidiaries have an established severance pay practice or policy; (ii) give Parent a reasonable period neither the Company nor any of its Subsidiaries are liable for any severance pay, bonus compensation, acceleration of payment or vesting of any equity interest, or other payments (other than accrued salary, vacation, or other paid time off in accordance with the Company’s or any of its Subsidiaries’ policies) to review and comment on any Employee arising from the communication termination of employment under any benefit or severance policy, practice, agreement, plan, program of the Company or any of its Subsidiaries, applicable Law or otherwise; and (iii) consider as a result of or in connection with the transactions contemplated hereunder or as a result of the termination by the Company or any such comments of its Subsidiaries of any Persons employed by the Company or any of its Subsidiaries on or prior to the Closing Date, neither the Company nor any of its Subsidiaries will have (x) any liability that exists or arises under any benefit or severance policy, practice, agreement, plan or program of the Company or any of its Subsidiaries, or under any applicable Law applicable thereto, other than the Transaction Bonus Payments, or (y) to accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due any Employee, other than in good faithrespect of the Options and Warrants.
(g) The Company and each of its Subsidiaries are, and have been during the last three (3) years, in compliance, in all material respects, with all applicable Laws, agreements, contracts and promises respecting employment, employment practices, employee benefits, terms and conditions of employment, immigration matters, labor matters, and wages and hours, in each case, with respect to its Employees, as well as former employees.
(h) During There are no Proceedings pending or, to the Interim PeriodCompany’s Knowledge, threatened, before any Governmental Authority by any Employees for compensation, pending severance benefits, vacation time, vacation pay or pension benefits, or any other claim threatened or pending before any Governmental Authority (or any state “referral agency”) from any Employee or any other Person arising out of the Parent Parties and Company’s status as employer, whether in the form of claims for employment discrimination, harassment, retaliation, unfair labor practices, grievances, wrongful discharge, breach of contract, tort, unfair competition or otherwise. In addition, there are no pending, or to Company’s Knowledge threatened or reasonably anticipated claims or actions against the Company and the Company or any of its Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8under any workers compensation policy or long-term disability policy.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee The Company and each of the Company or the Company its Subsidiaries, other than the Parties and to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company’s Knowledge each Employee, is in compliance with all applicable visa and work permit requirements, and no visa or work permit held by an Employee will expire during the Company Subsidiaries, Parent or six (6) month period beginning at the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination date of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementthis Agreement.
Appears in 1 contract
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shallunless Surviving Corporation and an officer, director or employee of Target otherwise agree, Parent, Surviving Corporation and shall cause each Parent Subsidiary, as applicable, to honortheir respective Subsidiaries will honor and assume, in accordance with their terms, all existing employment, compensation and severance agreements between Target and separation pay plansany officer, agreements and arrangementsdirector, or employee of Target and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company benefits or any Company Subsidiary and in effect immediately prior other amounts earned or accrued to the Company extent vested or which become vested in the ordinary course under all employee benefit plans of Target, except that to the extent that Parent employs any employee of Target, such employment shall be at will unless otherwise provided in an agreement to which Parent or Merger Effective TimeSub is a party.
(cii) Merger Sub or Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length all employees of service with the Company and the Company Subsidiaries (Target as well as service with any predecessor employer of the Company Effective Time to be eligible to participate in the "employee welfare benefit plans" and "employee pension plans" (within the meaning of Section 3(1) and Section 3(2) of ERISA, respectively) of Merger Sub or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is similarly situated employees of Merger Sub or Parent are generally eligible to participate (but not for or, alternatively, may choose in their discretion to continue certain or all of the benefit plans currently provided by Target to its employees or otherwise to provide benefits comparable to some or all of such plans); provided that nothing herein shall prevent Merger Sub or Parent from terminating the employment of any such employee or modifying or terminating such plans from time to time. For purposes of any benefit accrual under length of service requirements, waiting periods, vesting periods or differential benefits based on length of service in any defined benefit pension plansuch plan for which an employee may be eligible after the Effective Time, Merger Sub or Parent shall ensure that service by such employee with Target shall be deemed to have been service with Merger Sub or Parent, as applicable.
(iii) From and after the Effective Time, Parent shall provide or cause to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided (a) salary and benefits (subject to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under above) to their employees of Target, which will, in the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a)aggregate, (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedulecomparable to those currently provided by Target to its employees, and (iib) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment participation in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Parent's Stock Option Plan as in effect on the date of this Agreement) same basis as that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law provided to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted ShareParent's current employees.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Merger Agreement (C Cor Net Corp)
Employment Matters. (a) During For purposes of eligibility, vesting and, except with respect to any pension benefit plan, calculation of benefits (except to the period commencing on extent crediting such service would result in the Closing duplication of benefits) under each of Parent's employee benefit plans, programs and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is arrangements in which an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains is employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time Closing Date and who becomes an employee of Parent or the Surviving Corporation immediately following the Closing (each, a “"Continuing Employee” and collectively") participates, Parent shall grant, or shall cause the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing EmployeeSurviving Corporation to grant, a base salary or base wage rate that is not less than the base salary or base wage rate provided to each such Continuing Employee immediately prior to with credit for all service with the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeCompany.
(b) From and after As soon as practicable following the Company Merger Effective Time, Parent shalleach Continuing Employee shall be eligible to participate in Parent's 401(k) plan, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior subject to the Company Merger Effective Timeterms of such plan.
(c) Parent shallshall provide, and or shall cause the Parent Subsidiaries toSurviving Corporation to provide, provide credit for to each Continuing Employee (and each such Continuing Employee’s length of service with 's beneficiaries and dependents) immediate coverage under a health benefit plan maintained by the Company and Surviving Corporation or Parent. Parent shall waive, or cause the Company Subsidiaries Surviving Corporation to waive, any applicable pre-existing condition exclusion (as well as service with any predecessor employer of to the Company or any Company Subsidiaryextent such exclusion did not apply to a pre-existing condition under the Company's plan) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off such health benefit plan, programand, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar planapplicable deductibles, program, policy, agreement co-payments or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under any such health benefit plan, each Continuing Employee shall receive credit under such health benefit plan for all amounts paid by them under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursCompany's health benefit plan.
(gd) Prior Each Continuing Employee shall enter into Parent's standard agreements for employees relating to making any broadconfidentiality, proprietary information, inventions and non-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faithcompetition.
(he) During It is expressly agreed that the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by provisions of this Section 7.87.4 are not intended to be for the benefit of or otherwise enforceable by any third Person, including, without limitation, any employee of the Company, or any collective bargaining unit or employee organization.
(if) Nothing in this Section 7.8 herein shall (i) confer any rights upon any Personprevent Parent, including any Continuing Employee or former employee of Merger Sub, the Company or the Company SubsidiariesSurviving Corporation from amending or modifying any employee benefit plan, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute program or create an employment agreement or create any right arrangement in any Continuing Employee respect or terminating or modifying the terms and conditions of employment or other service of any particular employee or any other Person to person. Nothing contained in this Agreement shall create or imply any continued employment or service with or forobligation on the part of Parent, or to receive any compensation or benefits from, the CompanyMerger Sub, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of Surviving Corporation to provide any Company Employee Program or continuing employment right to any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementindividual.
Appears in 1 contract
Samples: Merger Agreement (Atmi Inc)
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date Buyer shall have no obligation to hire any of the Continuing Employee’s termination employees of Sellers, although it may make offers of employment with Parent to or hire as independent contractors those employees listed on Schedule 7.1(e) or Schedule 9.3. Any such employee listed on Schedule 7.1(e) or Schedule 9.3 who accepts Buyer’s offer of employment and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is becomes an employee of Buyer or who is hired as an independent contractor of Buyer shall be herein after referred to as a “Hired Person.” Notwithstanding any other provision herein, Buyer may hire employees of Sellers from general solicitations or similar advertisements for the Company employment or use of employees not specifically targeted at Sellers’ employees, including through the use of search firms or head hunters not directed to target Sellers’ employees and directly solicit for employment and hire or engage with any Company Subsidiary immediately of Sellers’ employees in the event that such employee’s relationship with such Seller has expired by its terms or was terminated such Seller prior to the Company Merger Effective Time such solicitation or employment. Sellers agree that upon 5 days written notice from Buyer, Sellers will amend all noncompetition or nonsolicitation agreements, if any, between Sellers or their affiliates and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate Hired Person listed on Schedule 9.3 that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior hired by Buyer, which amendments will waive all restrictions relating to the Closing, Xxxx Wrap Business (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medicalcertain individuals specifically identified on Schedule 9.3 must agree in writing to waive any rights to future severance payments from Sellers to which the applicable individual may be eligible or otherwise entitled) and, equity-based compensationand so long as the applicable Hired Person has agreed with Sellers in writing to waive any rights to any future severance payments from Sellers to which such individual may be eligible or otherwise entitled, deferred compensationany other product category or product which is designed, manufactured, marketed or retentionsold by Buyer, change-in-control its affiliates or subsidiaries as of the date hereof (other special or non-recurring compensation or benefits provided prior than to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(atissue and gift bag, gift box and gift sack business, the everyday gift wrap business and the ribbon and bow “trim-a-package” business). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after To the Company Merger Effective Timeextent required by applicable law, Parent shall, and Sellers shall cause each Parent Subsidiary, as applicable, offer continuation coverage pursuant to honor, in accordance with their terms, the Consolidated Omnibus Budget Reconciliation Act (COBRA) to all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and Xxxx Wrap Business who are “M&A qualified beneficiaries” (as such term is defined in effect immediately prior to Q&A 4 of Treas. Reg. section 54.4980B-9) as a result of the Company Merger Effective Timetransaction contemplated by this Agreement.
(c) Parent shall, The provisions of this Section 9.3 are for the benefit of the parties to this Agreement only and shall cause the Parent Subsidiaries tonot be construed to grant any rights, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries remedies, or benefits, as a third party beneficiary or otherwise, to any person (as well as service with including any predecessor employer of the Company Hired Person or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties Xxxx Wrap Business) who is not a party to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementAgreement.
Appears in 1 contract
Employment Matters. (a) During the period commencing on ETP and PennTex acknowledge that all PennTex Employees are and, except as provided in Section 10.1(b), as of immediately following the Closing and ending on will remain, employed by ManagementCo, it being understood that none of PennTex, the date Holdco Group or ETP can guarantee that is twelve (12) months any PennTex Employee will remain employed with ManagementCo for any period of time. Within thirty days after the Closing Date (such date, the “Offer Date”), with respect to each PennTex Employee other than the PennTex Senior Executives, ETP shall either (i) terminate (or if earliercause ManagementCo to terminate) the employment of such PennTex Employee (these employees, the date “Non-Offered Employees”), (ii) extend a written offer to continue such PennTex Employee’s employment with ManagementCo or ETP or one of its Affiliates for a transitional period (the “Transitional Period”) not to exceed nine months (inclusive of the Continuing Employee’s termination of employment with Parent thirty-day offer period) following the Offer Date (such offer, a “Transitional Offer” and these employees, the Parent Subsidiaries“Transitional Employees”), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee or (iii) extend a written offer to continue the employment of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time such PennTex Employee on a continuing basis (eachsuch offer, a “Continuing Employee” Offer”) and collectivelythese employees, the “Continuing Offered Employees”). Prior to the Offer Date, the PennTex Employees may be subjected to ETP’s standard procedures for new employees (including reasonable screening and background checks) 39 and ETP may decline to provide a Transitional Offer or a Continuing Offer on the basis of an employee’s failure to satisfy ETP’s standard screening and background check conditions, provided that any such employees will be treated as Non-Offered Employees for all purposes hereunder.
(b) Prior to Closing, the Holdco Group Members shall cause ManagementCo to take all action necessary to terminate the employment of all PennTex Employees with a title of Vice President or above (the “PennTex Senior Executives”) effective no later than immediately prior to Closing, provided however, that (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less terminations shall become effective immediately following the Closing rather than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual the Holdco Group Members shall ensure that ETP does not incur or become subject to any liability or obligation that it would not have otherwise incurred or become subject to had such terminations been effective immediately prior to Closing and (iii) ManagementCo shall not so terminate the employment of those PennTex Senior Executives set forth on Schedule 10.1(b) (such PennTex Senior Executives, the “Retained PennTex Senior Executives”). Following the Closing, ETP agrees that it will take, or cause to be taken, such actions as are reasonably necessary or appropriate to cause the General Partner to administer the Equity Plan and all award agreements thereunder governing outstanding awards held by such PennTex Senior Executives in accordance with the terms of the Equity Plan and such award agreements. Except with respect to the Retained PennTex Senior Executives, the Holdco Group Members shall ensure that all severance benefits payable to the PennTex Senior Executives by the Holdco Entities shall be fully satisfied prior to the Closing and that the Holdco Entities will not have any obligation or liability with respect to severance benefits following Closing.
(c) Each Transitional Offer shall provide that the Offered PennTex Employee shall be provided during the applicable Transitional Period with (i) employment (A) that is comparable to the job responsibilities and duties as in effect prior to the Closing and with a title that is substantially similar to the title given by ETP to its other short-term periodic cash incentive opportunities employees holding substantially equivalent positions and (B) in a location within 25 miles of such Offered PennTex Employee’s current employment, (ii) base salary or wages that are not no less than the target annual base salary or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of wages provided immediately prior to the Company Disclosure ScheduleClosing, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than substantially similar to those provided by ETP to such Continuing Employee immediately prior its similarly situated employees, provided that, notwithstanding the foregoing, the benefits provided under group retirement and welfare benefit plans may instead, as determined by ETP in its sole discretion, be those provided pursuant to the Closingapplicable PennTex Benefit Plans. All Transitional Offers and Continuing Offers shall be for employment on an “at-will” basis, providedsubject to Section 10.1(e) below. The PennTex Entities shall, howeverincluding during the period from the date hereof through the Closing Date, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior assist ETP in communicating with the Offered PennTex Employees regarding potential continued employment with ETP and shall provide reasonable access to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From facilities and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees personnel records of the Company or any Company Subsidiary PennTex Entities for the purpose of ETP preparing for and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service conducting employment interviews with any predecessor employer of such PennTex Employees, who the Company or any Company Subsidiary) PennTex Entities shall make reasonably available for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained interview by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee ProgramETP.
(d) Without limiting the generality No Contributor or any post-Closing Affiliate (other than portfolio companies of Section 7.8(a), NGP) thereof (i) cash incentive bonuses shall solicit for calendar year 2023 employment any PennTex Employee (other than PennTex Senior Executives who are not Retained PennTex Senior Executives) prior to the Closing Date or (ii) after the Closing Date and prior to the Offer Date shall be treated attempt to hire from ETP or its Affiliates any PennTex Employee (other than PennTex Senior Executives who are not Retained PennTex Senior 40 Executives) or attempt to dissuade them from accepting a Transitional Offer or a Continuing Offer. In addition, no Contributor or any post-Closing Affiliate (other than portfolio companies of NGP) thereof shall attempt to hire from ETP or its Affiliates any Transitional Employee or Continuing Employee (as set forth defined in Section 7.8(d)(iSchedule 10.1(e)) (i) with respect to Transitional Employees, prior to the end of the Company Disclosure ScheduleTransitional Period, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately Continuing Employees in Louisiana, prior to the Company Merger Effective Time as second anniversary of the Closing Date, and (iii) with respect to which restrictions shall have lapsed as of immediately Continuing Employees other than those in Louisiana, prior to the Company Merger Effective Time, the right first anniversary of the holder thereof to Closing Date. Nothing in this Section 10.1(d) shall prohibit general advertisements or solicitations that are not specifically targeted at any payment in respect Continuing Employee or group of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted ShareContinuing Employees.
(e) Parent With respect to the period beginning upon the Closing and ending on the Company first anniversary thereof, ETP shall take pay (or shall cause ManagementCo to pay) and provide severance amounts and benefits to the actions described PennTex Employees (other than the PennTex Senior Executives who are not Retained PennTex Senior Executives) in Section 7.8(eaccordance with the terms set forth on Schedule 10.1(e)) and ETP shall cause the terms of all Transitional Offers and Continuing Offers to include severance rights consistent with all of the Company Disclosure Scheduleterms set forth on Schedule 10.1(e), provided that payment of any amounts or provision of any benefits pursuant to this Section 10.1(e) shall be conditioned upon the timely execution and non-revocation of a release of claims by the applicable PennTex Employee in a form that is reasonably acceptable to ETP and that includes Contributors as parties against which claims are released. During any applicable period set forth on Schedule 10.1(e) that an applicable PennTex Employee is eligible for severance pursuant thereto, such PennTex Employee shall not participate in or otherwise be eligible for severance compensation or benefits under any Employee Benefit Plan or arrangement of ETP or its Affiliates that provides for severance compensation benefits.
(f) Parent From and after the Closing, ETP shall give each PennTex Employee (other than PennTex Senior Executives who are not Retained PennTex Senior Executives) full credit for all purposes under any Employee Benefit Plans (including under any applicable pension, 401(k), savings, medical, dental, life insurance, vacation, long-service leave or other leave entitlements, and severance or separation pay plans) that are provided, sponsored, maintained or contributed to by ETP or any of its Affiliates in which the Hired Employees are eligible to participate for such Employee’s service with the Holdco Entities or their Affiliates, and with any predecessor employer thereto, to the same extent properly recognized by the Holdco Entities or their Affiliates for a similar purpose, but only to the extent (i) such credit would not result in the duplication of benefits for the same period of service and (ii) such service crediting is permitted by third-party insurers and administrators and does not violate applicable Law. Notwithstanding the foregoing, in no event shall ETP be required to provide credit for such service for purposes of vesting under any equity incentive plan or similar plan for benefit accrual purposes under any defined benefit pension plan or any plan subject to Section 412 of the Code or Title IV of ERISA. In addition, to the extent the Hired Employees commence participation in any group health plan sponsored by ETP or its Affiliates during the plan year in which the Closing occurs, ETP shall waive for each Hired Employee and his or her eligible dependents, any waiting period provision, payment requirement to avoid a waiting period, pre-existing condition limitation, actively-at-work requirement and any other restriction that would prevent immediate or full participation under such plan(s) to the extent such waiting period, pre-existing condition limitation, actively-at-work requirement or other restriction was not applicable to such Hired Employee under the terms of the corresponding PennTex Benefit Plan, but, in all cases, only to the extent such actions are permitted by third-party insurers and administrators and do not violate any applicable Law.
(g) Prior to the Closing, the Holdco Group will cause PennTex or ManagementCo, as applicable, to pay each PennTex Employee the full amount of his or her annual cash bonus award for fiscal year 2016, as determined by PennTex; provided that the aggregate amount of all such payments shall not exceed $4.7 million. Contributors shall ensure that neither ETP nor any of the Holdco Entities shall have any obligation or liability following Closing with respect to amounts payable pursuant to this Section 10.1(g).
(h) Prior to the Closing Date, PennTex shall use, and shall or cause the Parent Subsidiaries applicable Holdco Group Member to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made obtain approval by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shallits equityholders, to the extent not prohibited required by applicable Law, (iand in a manner that complies with Section 280G(b)(5)(B) provide Parent with a copy of the Code and the Treasury Regulations promulgated thereunder, of the right of any “disqualified individual” (as defined in Section 280G(c) of the Code) to receive or retain any payments that could, in the absence of such approval by such equityholders, constitute “excess parachute payments” (as defined in Section 280G(b)(1) of the Code). Prior to seeking such approval, PennTex shall use its commercially reasonable efforts to seek and obtain waivers from the intended communicationrecipients of such payments, (iiwhich waivers shall provide that unless such payments are approved by PennTex’s equityholders to the extent required by and in the manner that complies with 280G(b)(5)(B) give Parent a of the Code and the Treasury Regulations promulgated thereunder, no Holdco Group Member shall be required to make such payments. Prior to seeking any waiver or shareholder approval, PennTex shall provide to ETP or its counsel drafts of all waivers, consents, disclosures, and other documents prepared in connection with the actions described in this Section 10.1(h) and PennTex shall consider in good faith any reasonable period of time comments from ETP to review and comment on the communication and (iii) consider any such documents, provided such comments in good faith.
are delivered to PennTex or its counsel within 2 (htwo) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8Business Days of ETP’s receipt of such drafts.
(i) Subject to the limitations on liability set forth in Section 14.3(i), the Holdco Group Members shall indemnify, defend and hold harmless ETP and, after Closing, the Holdco Entities, with respect to any and all liabilities to ETP or to any Holdco Entity that arise as a result of any pre-Closing ERISA Affiliate of any Holdco Entity’s (other than other Holdco Entities) (i) sponsorship of, participation in, contribution to or requirement to contribute to any Employee Benefit Plan subject to (A) Section 412 of the Code or (B) Section 302 or Title IV of ERISA or (ii) violation of COBRA, Part 7 of Subtitle B of Title I of ERISA, 4980D of the Code or the ACA.
(j) Prior to Closing, Contributors shall ensure that the Holdco Entities shall pay to each PennTex Employee in cash in a single lump sum the value of such PennTex Employee’s accrued vacation and other paid-time off as accrued under the PennTex Benefit Plans to the extent such accruals exceed forty (40) hours.
(k) Nothing in this Agreement, express or implied, will be construed as requiring ETP or any of its Affiliates to employ any Hired Employee for any length of time following the Closing Date, subject to the severance payment obligations set forth in Section 7.8 shall 10.1(e). Nothing in this Agreement, express or implied, will be construed to (i) confer prevent ETP or any rights upon of its Affiliates from terminating, or modifying the terms of employment of, any Hired Employee following the Closing Date or terminating or modifying any applicable PennTex Benefit Plan, (ii) constitute an amendment of any PennTex Benefit Plans or any employee benefit plan maintained by ETP or any of its Affiliates, or (iii) create any third-party beneficiary or other right in any Person, including any Continuing Employee current or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee Contributor or any other Person to any continued employment or service with or forAffiliate thereof, or to receive any compensation current or benefits fromformer participant in (or dependent, the Companybeneficiary, the Company Subsidiaries, Parent designee or the Parent Subsidiaries, (iiiassignee with respect to) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementPennTex Benefit Plan.
Appears in 1 contract
Samples: Contribution Agreement (Energy Transfer Partners, L.P.)
Employment Matters. (a) During the period commencing on Prior to the Closing Date (but subject to the occurrence of the Merger), the Company shall terminate the employment of Xxxxxx Xxxxxxxxx (the “Designated Employee”). All costs and ending on expenses related to such termination shall be borne by the date Company.
(b) For all purposes (including purposes of eligibility, vesting and benefit accrual) under the employee benefit plans of the Parent, the Surviving Corporation and any of their respective affiliates providing benefits to any employee of the Company that is twelve (12) months becomes an employee of the Parent, the Surviving Corporation or any of their respective affiliates after the Closing (or if earlierwhich , for clarity, shall exclude the date of the Continuing Designated Employee’s termination of employment with ) (any such employee, an “Employee” and such employee benefit plans, “Parent and the Parent SubsidiariesPlans”), Parent shalleach Employee shall be credited with his or her years of service with the Company before the Closing Date, and shall cause each Parent Subsidiary, to the same extent as applicable, to, provide each individual who is an employee such Employee was entitled before the Closing Date to credit for such service under any similar benefit plan of the Company in which such Employee participated or any Company Subsidiary was eligible to participate immediately prior to the Company Merger Effective Time Closing Date and who remains shall also be credited with and carry-over all vacation accrual earned while employed by the Company or its respective predecessors, as applicable; provided, that the foregoing shall not apply to the extent that its application would result in a duplication of benefits or the accrual of benefits under a defined benefit pension plan with respect to such Employee or such activities are not permitted under the applicable Parent or Plan. In addition, and without limiting the generality of the foregoing, but subject to the requirements of the applicable Parent Plan, (i) each Employee shall be immediately eligible to participate without any waiting time, in any and all Parent Plans to the extent coverage under such Parent Plans is comparable to any benefit plan of the Company in which the Employee participated immediately before the Closing Date and (ii) the Parent shall cause (A) to be waived all pre-existing condition exclusion and similar limitations, eligibility waiting periods and evidence of insurability requirements under any Parent Subsidiary Plans to the extent waived or satisfied by such Employee under any benefit plan of the Company as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure ScheduleClosing Date, and (iiiB) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, any covered expenses incurred on or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to before the Closing shall Date by any such Employee (or covered dependent thereof) to be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubtsatisfying applicable deductible, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the atcoinsurance and maximum out-will employment status of any Continuing Employee.
(b) From and of-pocket provisions after the Company Merger Effective Time, Closing Date under any applicable Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective TimePlan.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 5.19 shall be construed to confer on any Person (i) confer any rights upon any Person, including any Continuing Employee current and former employees or former employee of and other service providers to the Company or the Company SubsidiariesCompany), other than the Parties to this Agreement and parties hereto, their respective successors and permitted assigns, (ii) constitute any benefit under or create an employment agreement or create right to enforce the provisions of this Section 5.19, including any right in to employment or continued employment for any Continuing Employee period of time or any other Person right to any continued employment a particular term or service with or forcondition of employment, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated construed as an amendment, modification, adoption, suspension waiver or termination creation of any Company Employee Program or any Parent Employee Program, or (iv) alter or benefit plan. Nor does anything in this Section 5.19 limit the ability of the CompanyParent, the Company Subsidiaries, Parent Surviving Corporation or any affiliate of any of the Parent Subsidiaries foregoing to amend, modify amend or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementplan pursuant to its terms.
Appears in 1 contract
Employment Matters. (a) During the For a period commencing on of one year following the Closing and ending on Date, Buyer shall or shall cause the date that is twelve (12) months after Surviving Corporation to maintain for employees who continue in the employ of Buyer, the Surviving Corporation or any of their Subsidiaries following the Closing Date (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent ), compensation and such Continuing Employee, a base salary or base wage rate that is not less than other benefits which are substantially comparable in the base salary or base wage rate aggregate to those provided to such the Continuing Employee Employees immediately prior to the Closing. This Section 7.3 shall not limit the obligation of Buyer to maintain any compensation arrangement or benefit plan that, (ii) target annual or other short-term periodic cash incentive opportunities that are not less pursuant to an existing contract, must be maintained for a period longer than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) one year. No provision of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will be construed as a guarantee of continued employment status of any Continuing EmployeeEmployee and this Agreement shall not be construed so as to prohibit Buyer or any of its Subsidiaries from having the right to terminate the employment of any Continuing Employee or to amend, modify or terminate any particular employee benefit plan or program for or for the benefit of Continued Employees at any time, subject to overall compliance with the terms of this Section 7.3(a).
(b) From and after the Company Merger Effective TimeClosing, Parent shallBuyer shall give each Continuing Employee full credit for all purposes (including for purposes of eligibility to participate, level of benefits, early retirement eligibility and shall cause each Parent Subsidiaryearly retirement subsidies, as applicablevesting and benefit accrual) under any employee benefit plans, to honorarrangements, in accordance with their termscollective agreements and employment-related entitlements (including under any applicable pension, all 401(k), savings, medical, dental, life insurance, vacation, long-service leave or other leave entitlements, post-retirement health and life insurance, termination indemnity, severance and or separation pay plans) provided, agreements and arrangementssponsored, and all written employment, severance, retention, incentive, change in control and termination agreements (including maintained or contributed to by Buyer or any change in control provisions therein) applicable to employees of its Subsidiaries for such Continuing Employee’s service with the Company or any Company Subsidiary of its Subsidiaries, and in effect immediately prior with any predecessor employer, to the same extent recognized by the Company Merger Effective Timeor any of its Subsidiaries, except to the extent such credit would result in the duplication of benefits for the same period of service. Notwithstanding the foregoing but subject to overall compliance with the terms of Section 7.3(a), to the extent permitted under applicable Law, Buyer shall not be required to provide credit for such service for benefit accrual purposes under (i) any Buyer defined benefit pension plan, (ii) any Buyer defined contribution savings plan with respect to the “Retirement Contribution”or (iii) any Buyer retiree medical or retiree life insurance plan.
(c) Parent shall, and Buyer shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as for each Continuing Employee and his or her dependents, any waiting period provision, payment requirement to preexisting conditionsavoid a waiting period, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting pre-existing condition limitations, exclusionslimitation, actively-at-work requirements requirement and any other restriction that would prevent immediate or full participation under the welfare plans of Buyer or any of its Subsidiaries applicable to such Continuing Employee to the extent such waiting periods period, pre-existing condition limitation, actively-at-work requirement or other restriction would not have been satisfied or waived applicable to such Continuing Employee under the comparable terms of the welfare plans of the Company Employee Program and its Subsidiaries, and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums give full credit under the corresponding Company welfare plans of Buyer and its Subsidiaries applicable to each Continuing Employee Program in satisfying any applicable deductibles, out-of-pocket maximums and his or her dependents for all co-payments under a corresponding Parent Employee Program during the calendar year in which and deductibles satisfied prior to the Closing occursin the same plan year as the Closing, and for any lifetime maximums, as if there had been a single continuous employer.
(gd) Prior to making any broad-based, written communications Notwithstanding anything to the employees contrary in this Section 7.3, the parties expressly acknowledge and agree that this Agreement is not intended to create a contract between Buyer or the Surviving Corporation, on the one hand, and any employee of the Company or any Company Subsidiary (of its Subsidiaries, on the other than hand, and no such employee may rely on this Agreement as the basis for any communications consistent in all material respects with prior communications made by breach of contract claim against Buyer, the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy any of the intended communication, (ii) give Parent a reasonable period its Subsidiaries. No provision of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer 7.3 is intended to modify, amend or create any rights upon any Person, including any Continuing Employee employee benefit plan of Buyer or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and any of their respective successors and permitted assigns, (ii) constitute Subsidiaries or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementAffiliates.
Appears in 1 contract
Employment Matters. (a) During The Vendor acknowledges that the period commencing Purchaser has made offers of employment, effective on the Closing and ending Date, to all of the Employees listed on the date that is twelve Schedule G (12) months after the Closing (or if earliercollectively, the date of “Offered Employees”) on terms and conditions, including terms and conditions relating to salary, benefits and compensation, substantially similar to those under which the Continuing Employee’s termination of employment with Parent and Offered Employees are employed in the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary Purchased Business immediately prior to the Company Merger Effective Time Closing Date except for the addition of a six (6) month termination clause and who remains employed by Parent or any Parent Subsidiary as relocation clause. The Vendor shall terminate the employment of all of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, Offered Employees who accept the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth Purchaser’s offer of employment effective on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeDate.
(b) From The Purchaser shall be liable for all obligations, commitments and liabilities, including unpaid wages, salaries, bonuses, accrued overtime, banked hours, flex time, sick leave, holiday pay, vacation pay, severance pay and termination pay (collectively, the “Employee Liabilities”) arising from and after the Company Merger Effective Time, Parent shall, Closing Date relating to any Offered Employee who accepts employment with the Purchaser. The Purchaser shall not be liable for any Employee Liabilities to Departing Employees arising on or after the Closing Date and shall cause each Parent Subsidiary, as applicable, relating to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements the employment (including any change in control provisions thereinlength of service) applicable to employees of the Company or any Company Subsidiary and in effect immediately Departing Employees prior to the Company Merger Effective TimeClosing Date. The Vendor shall confirm to the Purchaser prior to the Closing Date what the Vendor’s Obligations are for the non-key employees in the United Kingdom and same shall not result in a Material Adverse Effect. If same do result in a Material Adverse Effect, the Purchaser shall be able to terminate this Agreement pursuant to Section 4.1(c) hereof.
(c) Parent shallThe Vendor shall be liable for all Employee Liabilities to Employees (including Offered Employees who accept employment with the Purchaser) arising prior to the Closing Date except as set forth in Schedule G. For clarity, the Vendor shall also be liable for all Employee Liabilities to Departing Employees arising after the Closing Date and shall cause relating to the Parent Subsidiaries to, provide credit for each Continuing Employee’s employment (including length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer service) of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) Departing Employees prior to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee ProgramClosing Date.
(d) Without limiting If an Offered Employee does not accept the generality offer of Section 7.8(aemployment made to it by the Purchaser pursuant to subsection 8.1(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of then any and all remaining claims of such Offered Employee will be the sole responsibility of the Vendor and the Vendor shall have no rights with respect to each against the Purchaser as a result of such Company 2015 Plan Restricted Sharenon-acceptance of the Purchaser’s offer of employment.
(e) Parent and In the Company shall take event that an Offered Employee does not accept the actions described in Section 7.8(e) offer of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries employment made to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made it by the Company or Parent) pertaining Purchaser pursuant to compensation or benefits matters that are affected by the transactions contemplated by this Agreementsubsection 8.1(a), the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider then any such comments in good faith.
(h) During the Interim Period, the Parent Parties Offered Employee shall enter into a training and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment transition agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementPurchaser prior to Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Waste2Energy Holdings, Inc.)
Employment Matters. (a) During the period commencing on No later than thirty (30) days prior to the Closing and ending on the Date or no later than five (5) days following any applicable hire date that is twelve occurs after such thirtieth (1230th) months day, Buyer or one of its Affiliates shall provide, or shall cause an Affiliate to provide, an offer of employment to each Scheduled Business Employee, Asset Selling Entity Business Employee, and Offeree to the extent that the employment of such Scheduled Business Employee, Asset Selling Entity Business Employee or Offeree would not transfer to Buyer (or an Affiliate of Buyer, including after the Closing Closing, a Transferred Subsidiary) under the TUPE Regulations or would not otherwise automatically transfer to Buyer (or if earlieran Affiliate of Buyer, including after the Closing, a Transferred Subsidiary), which offer of employment shall be consistent with the terms of Section 5.2(c). Notwithstanding the foregoing, the date parties acknowledge that the purchase and sale of the Continuing Devices & Services Business would constitute a “transfer of an undertaking” under the Finnish Employment Contracts Act and similar laws in other jurisdictions in which the TUPE Regulations are applicable. Consequently, Business Employees who would be required under the TUPE Regulations to transfer to Buyer or any Affiliate thereof, shall automatically transfer to Buyer (or an Affiliate) at the Closing in accordance with applicable Law, without the need for a separate offer. Each (i) Scheduled Business Employee’s termination , Asset Selling Entity Business Employee, Offeree, in each case, who has accepted an offer of employment from Buyer or an Affiliate of Buyer and commences employment with Parent Buyer or an Affiliate of Buyer at the Closing, and the Parent Subsidiaries), Parent shall(ii) Transferred Subsidiary Business Employee shall become a “Transferred Employee”.
(b) Seller shall use, and shall cause each Parent Subsidiaryof its applicable Affiliates to use, its or their reasonable best efforts to comply with respect to all requirements of applicable Law regarding advance notice, consultation with works councils, labor unions and similar employee representative organizations, as applicablewell as any applicable collective bargaining agreements or similar such agreements pertaining to the Business Employees.
(c) Subject to Buyer and its applicable Affiliates’ obligations pursuant (i) to applicable Law (including but not limited to the TUPE Regulations) or (ii) or any collective bargaining agreement or other agreement with a works council or other employee representative group, tofor the twelve (12) month period following the Closing (the “Continuation Period”), Buyer shall provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and Transferred Employee who remains employed by Parent Buyer or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) its Affiliates with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorablefavorable in the aggregate than the compensation and employee benefits being provided by Seller and its Affiliates to such Transferred Employee as of the Closing Date (excluding for such purposes payments made pursuant to any retention arrangement or other payment made upon and in connection with the transactions contemplated by this Agreement). Notwithstanding the foregoing, nothing contemplated by this Agreement shall be construed as requiring Buyer or its Affiliates to (i) be obligated to continue the employment of any Transferred Employee for any period of time after the Closing or (ii) maintain any specific employee benefit plan, arrangement or program, except as may be required by applicable Law.
(d) Buyer shall, or shall cause an Affiliate to, provide to each Transferred Employee who remains employed by Buyer or any Affiliate full credit for such Transferred Employee’s service with any of the Seller Entities or Transferred Subsidiaries, or any of their respective Affiliates prior to the Closing for all purposes, including for purposes of eligibility, vesting, benefit accruals and determination of the level of benefits (including, for purposes of vacation, severance and retirement benefits, but excluding for purposes of long-term service awards and sabbatical program), under any benefit plan in which such Transferred Employee participates on or following the Closing to the same extent recognized by any of the Seller Entities or Transferred Subsidiaries or any of their respective Affiliates immediately prior to the Closing; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits or additional accruals under any defined benefit plan. Buyer shall, or shall cause an Affiliate to: waive any limitation on health and welfare coverage of such Transferred Employees due to pre-existing conditions, waiting periods, active employment requirements, and requirements to show evidence of good health under any applicable health and welfare plan of Buyer or any Affiliate to the extent such Transferred Employees were covered under a similar benefit plan of the Seller Entities, Transferred Subsidiaries or any of their respective Affiliates and (ii) use commercially reasonable efforts to credit each such Transferred Employee with all deductible payments, co-payments and co-insurance paid by such employee under any benefit plan of any Seller Entity or Transferred Subsidiary, or any of their respective Affiliates, prior to the Closing during the year in which the Closing occurs for the purpose of determining the extent to which any such employee has satisfied any applicable deductible and whether such employee has reached the out-of-pocket maximum under any benefit plan of Buyer or any Affiliate for such year, provided that Seller shall have provided to Buyer or an Affiliate of Buyer information in a timely manner sufficient for Buyer to determine the amounts of such payments and, provided further, that in lieu of such credit Buyer shall be permitted to provide to such Transferred Employees payments or benefits having an equivalent value to such payments. Buyer shall recognize and credit, and cause its Affiliates to recognize and credit, the vacation days and paid time off accrued by such Transferred Employees prior to the Closing.
(e) During the Continuation Period, Buyer and its Affiliates shall provide each Transferred Employee who is involuntarily terminated by Buyer without “cause” during the Continuation Period with severance and termination benefits, to the extent applicable, in an amount equal to the severance and termination benefits that would be due under the comparable applicable severance and termination benefit plans, programs, policies, agreements or arrangements of Seller and its Affiliates in effect on the date hereof (“Seller Severance Arrangements”) had such Transferred Employee’s involuntary termination occurred on the date hereof (contingent upon delivery of a legally binding general release if permitted by applicable Law); provided that if a Transferred Employee is entitled to, and is provided, upon his involuntary termination a severance and termination benefit pursuant to applicable Law or Contract (including a collective bargaining agreement) other than a Seller Severance Arrangement, then the amount of severance and termination benefits provided to such Transferred Employee based on the Seller Severance Arrangements shall be reduced by the amount of severance and termination benefits received by the Transferred Employee under such Contract or applicable Law. Without limiting the foregoing, in the aggregateevent that Buyer or any Affiliate, than those provided to without a Transferred Employee’s prior consent, (i) reduces the wage rate or base salary of any Transferred Employee as in effect for such Continuing Transferred Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality relocates a Transferred Employee’s principal place of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect employment to each Company 2015 Plan Restricted Share a facility or location that is issued and outstanding more than fifty (50) kilometers (or such shorter distance as may be required pursuant to applicable Law) from the Transferred Employee’s principal place of employment as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price Closing (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to either clause (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments), charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program “Good Reason”), in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program either case during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Continuation Period, such Transferred Employee shall be entitled (for a period not to exceed thirty (30) days following the Parent Parties event giving rise to Good Reason) to terminate his or her employment and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, severance consistent with the terms of the previous sentence. For purposes of this Section 5.2(e), “cause” shall mean a good faith determination by the Buyer that any of the following has occurred: (i) willful and gross misconduct or gross neglect of employee’s material duties (ii) commission by employee of a misdemeanor with moral turpitude or a felony under the law of the jurisdiction in which such planemployee works; (iii) commission by employee of fraud, program, policy, theft or dishonesty in connection with the Buyer or its Affiliates; or (iv) material breach by employee of the Buyer’s written policies or any agreement with the Buyer that results in injury to the Buyer or arrangementits Affiliates.
Appears in 1 contract
Employment Matters. (a) During From and after the period commencing Effective Time, Veeco shall cause the Surviving Corporation to continue to employ all employees of the Target Corporations on the Closing and ending Date ("COMPANY EMPLOYEES") at no less than their base salary on the date hereof; provided, that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregateabsence of an employment agreement, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing this provision shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it not alter the at-will employment status of any Continuing such Company Employee.
(b) From and after For a period of not less than one year following the Company Merger Effective Time, Parent shallVeeco shall provide, and or shall cause each Parent Subsidiaryto be provided, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective TimeEmployees compensation and benefit plans, programs and policies and fringe benefits, that, in the aggregate, are at least as favorable to the Company Employees as that provided to them by the Target Corporations as of the date hereof as described in SECTION 3.12(a) of the Disclosure Schedule; provided, however, Veeco shall not be required to grant Company Options.
(c) Parent shallFor all purposes under the employee benefit plans of Veeco and its Subsidiaries providing benefits to any Company Employee after the Effective Time, and each Company Employee shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length be credited with his or her years of service with the Company Target Corporations before the Effective Time for eligibility and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibilityvesting purposes, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that as such Company Employee was entitled before the Effective Time to credit for such service was recognized under a any similar plan, program, policy, agreement or arrangement plans of the Company or any Company Subsidiary, Target Corporations except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication other similarly situated employees of benefitsVeeco and its Subsidiaries are not credited with past services under such plans. In addition, or (ii) such service was not recognized under and without limiting the corresponding generality of the foregoing, if any plan of the Target Corporations providing medical, dental, pharmaceutical and/or vision benefits to any Company Employee Programis replaced by a new plan (or by a plan otherwise sponsored by Veeco or any of its Subsidiaries) (a "NEW PLAN"), Veeco shall, to the extent possible, cause all "preexisting condition" exclusions of such New Plan to be waived for all Company Employees covered thereby and his or her covered dependents, and Veeco shall cause any eligible expenses incurred by such employee and his or her covered dependents during the portion of the plan year ending on the date such employee's participation in the New Plan begins, to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out of pocket requirements applicable to such employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 Nothing herein expressed or implied shall be treated as set forth in Section 7.8(d)(i) confer upon any of the Company Disclosure ScheduleEmployees any right to employment, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Timeor continued employment for any specified period, the or any right of the holder thereof to any payment in respect specific kind of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faithbenefits.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Employment Matters. (a) During the period commencing on the Closing From and ending on the date that is twelve (12) months after the Closing (or if earlierExecution Date, Seller will assist Buyer in Buyer’s efforts to hire Seller’s field level employees whose duties relate to the date operation of Assets to effectuate a smooth transition of the Continuing Employee’s termination operation of employment the Assets by Buyer. Within five (5) Business Days from the Execution Date, Seller will provide Buyer with Parent and a list (the Parent Subsidiaries“Available Employees List”) of all field level employees of Seller (the “Available Employees”), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior whose duties related to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary operation of Assets as of the Company Merger Effective Time (eachExecution Date, a “Continuing Employee” which list will include name, job title and collectivelystart date, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closingextent permitted by applicable Law, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a)salary ranges. For the avoidance of doubt, nothing if Seller does not include an employee of Seller in the Available Employees List, then Buyer shall be prohibited from hiring any such employee not listed in the Available Employees List for a period of twelve (12) months after Closing. Buyer or its Affiliates shall provide offers of employment to the Available Employees on the Available Employees List that Buyer desires to hire, with each offer stipulating the date for commencement of work (the “Hire Date”). Buyer shall provide Seller with notice of the names of those Available Employees to whom Buyer has made employment offers and who has accepted such offers contemporaneously with the making and acceptance of such offers. The Available Employees that Buyer hires as of the Hire Date are referred to as the “New Employees.” Any offers made by Buyer to any Available Employee shall be contingent upon the occurrence of the Closing. If the Closing does not occur and this Agreement is terminated, all such offers shall automatically terminate, and Buyer will not, unless acting in accordance with Seller’s prior written consent, hire any Available Employee for a period of two (2) years following such termination. Furthermore, no Available Employee shall become a New Employee unless he or she (a) accepts Buyer’s offer of employment under the terms provided in Buyer’s offer, (b) passes any required pre-employment screening required by Buyer and (c) on the Hire Date, is actively at work. Nothing in this Agreement shall require Parent or be construed or interpreted as requiring Buyer to offer employment to any Parent Subsidiary employee of Seller or to employ any Person, nor shall it alter continue the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements employee of Seller (including any change in New Employees) following their respective Hire Date, or to prevent Buyer from changing the terms and conditions of employment (including compensation and benefits) of any of its employees (including any New Employees) following their respective Hire Dates. Prior to the Hire Date of an Available Employee, Seller shall have the right to control provisions therein) applicable and direct such Available Employee as to employees the performance of duties and as to the means by which such duties are performed, including the right to terminate the employment of any Available Employee. Concurrently with Seller’s delivery of the Company or any Company Subsidiary Available Employees List, Seller shall inform Buyer of all employment and in effect immediately benefit matters relating to Available Employees prior to the Company Merger Effective Time.
(c) Parent shallAvailable Employees’ respective Hire Dates that, and shall cause in the Parent Subsidiaries toreasonable judgment of Seller’s management, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with could have a material impact on Buyer prior to taking any predecessor employer of the Company actions or making any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) decisions with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as such matters, subject to applicable Law. Notwithstanding any other provisions of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shallprovisions of this Section 14.6 are not intended to and shall not create or confer any third-party beneficiary rights respecting any Available Employee or New Employee. In the event Buyer hires New Employees, Buyer shall have the option to purchase from Seller or assume the extent not prohibited by applicable Law, (ivehicle lease from Seller of any Vehicle(s) provide Parent directly associated with such New Employees. In such event the Parties shall work together to agree upon a copy mutually acceptable sale price or assumption of the intended communication, (iilease price for such Vehicle(s) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 amounts shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated included as an amendment, modification, adoption, suspension upward adjustment in the Closing Settlement Statement or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementFinal Settlement Statement as applicable.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Midstates Petroleum Company, Inc.)
Employment Matters. (a) Subject to Section 4.2(b), Parent presently intends for the Surviving Company to honor the Benefit Plans and employment agreements of the Surviving Company; provided, however, for the avoidance of doubt, (i) Parent reserves the right to cause the Surviving Company to terminate the employment of any “at will” employee at any time, with or without cause, and to exercise all termination rights available to it under any employment agreement, and (ii) should a background check or drug screen regarding any employee of the Surviving Company (regardless of whether such background check or drug screen is conducted before or after the Closing Date) indicate that he or she has been excluded from participation under any Government Program or would for some other reason not be qualified for employment by Parent under its existing policies or applicable Law, Parent, in its sole discretion, shall have the option to cause the Surviving Company to terminate the employment of such employee. With the exception of any payments or liabilities associated with the termination of the Conversion Award Agreements and the Phantom Unit Agreements, which payments are being made pursuant to Section 2.4(a)(v) hereof and which other liabilities, if any, are being accounted for as a liability in the computation of Closing Working Capital, the Surviving Company shall be solely responsible for all liabilities relating to the amendment, termination or alleged termination of any Benefit Plan occurring at or following the Closing (and no liability or obligation related thereto shall be accounted for as a liability in computing the Closing Working Capital). In addition, the Surviving Company shall be solely responsible for all severance obligations relating to the termination of any employees at or following the Closing (and no liability or obligation related thereto shall be accounted for as a liability in computing the Closing Working Capital); provided, however, it is understood and agreed that, in the event any such employees are offered continued employment by the Surviving Company at the Closing on substantially the same terms and conditions and such employees elect to decline such continued employment, any severance obligations relating to the termination of their employment shall be accounted for as a liability in computing the Closing Working Capital. In addition, it is understood and agreed that all Sales Bonus Payments are being paid at Closing out of the Merger Consideration.
(b) During the period commencing on at the Closing and ending on the date that which is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employeeemployee’s termination of employment with Parent and the Parent SubsidiariesMerged Company), Parent shall, shall and shall cause each Parent Subsidiary, as applicable, to, Merged Company to provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of immediately after the Company Merger Effective Time Closing (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with with: (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not hourly wages which are no less than the base salary or base wage rate hourly wages provided by such Merged Company immediately prior to the Closing; (ii) target bonus opportunities (excluding equity-based compensation), if any, which are no less than the target bonus opportunities (excluding equity-based compensation) provided by such Merged Company immediately prior to the Closing; (iii) retirement and welfare benefits that are no less favorable in the aggregate than those provided by such Merged Company immediately prior to the Closing; and (iv) severance benefits that are no less favorable than the practice, plan or policy in effect for such Continuing Employee immediately prior to the Closing; provided, however, Parent and the Merged Companies’ obligations hereunder (iix) target annual or other short-term periodic cash incentive opportunities that are not less than expressly subject to and conditioned upon the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such related Continuing Employee immediately executing and delivering to Parent, prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubtstandard protective covenants agreement required for similarly situated employees, nothing in this Agreement and (y) shall require Parent or any Parent Subsidiary terminate with respect to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after Employee if he or she ceases to be employed by the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective TimeMerged Companies.
(c) Parent shallThe provisions of this Agreement are for the benefit of the parties hereto, and no employee of any Merged Company shall cause the Parent Subsidiaries tohave any rights hereunder. Nothing herein expressed or implied shall be deemed an amendment of any Benefit Plan or otherwise confer upon any employee of any Merged Company, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) legal representatives or beneficiaries thereof, any rights or remedies, including any right to employment or continued employment for purposes of eligibility, vesting and benefit level any specified period or to be covered under or by any employee vacation, severance or paid time off benefit plan, program, policy, agreement plan or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries employment status of any employee to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, be other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-terminable at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurswill.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Merger Agreement (Amedisys Inc)
Employment Matters. (a) During On the Closing Date, the employees of the Company and its Subsidiaries remain the employees of the Company and any of its Subsidiaries (“Continuing Employees”) and for a period commencing on of one year following the Closing Date, Acquiror shall cause the Company to provide each Continuing Employee with severance benefits and protections that are no less favorable than the severance benefits and protections that were provided to such Continuing Employee under an applicable Company Benefit Plan in effect immediately prior to the Closing and ending on the date that is twelve (12set forth in Section 7.3(a) months after the Closing (or if earlier, the date of the Continuing Employee’s termination Company Disclosure Letter. This Section 7.3 shall not limit the obligation of the Company to maintain any Company Benefit Plan that, pursuant to an existing contract, must be maintained for a period longer than one year. No provision of this Agreement shall be construed as a guarantee of continued employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an of any employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time of its Subsidiaries and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent not be construed so as to prohibit the Surviving Corporation or any Parent Subsidiary of its Subsidiaries from having the right to employ any Person, nor shall it alter terminate the at-will employment status of any Continuing Employeeindividual.
(b) From Each employee and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees former employee of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent its Subsidiaries shall, for purposes of eligibility and shall cause the Parent Subsidiaries tovesting (and for purposes of benefit accrual for severance and vacation only), provide credit for each Continuing Employee’s length be credited with his or her years of service with the Company and the Company its Subsidiaries (as well as service with and any predecessor employer of entities thereof) before the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level Closing Date under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent plan of Acquiror and the Parent its Subsidiaries in which such Continuing Employee is eligible employee may participate after the Closing Date providing benefits similar to participate (but not for purposes of any benefit accrual those provided under any defined benefit pension plan) Company Benefit Plan to the same extent that as such employee or former employee was entitled, before the Closing Date, to credit for such service was recognized under a similar plan, program, policy, agreement or arrangement of the such Company or any Company Subsidiary, except that no such prior service credit will be required or provided Benefit Plan. With respect to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 in which Acquiror ceases to maintain any particular Company Benefit Plan, each employee shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and given credit for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each paid under such Company 2015 Benefit Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) for purposes of the Company Disclosure Schedule.
(f) Parent shall useapplying deductibles, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, activelyco-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible payments and out-of-pocket maximums under as though such amounts had been paid in accordance with the corresponding Company Employee Program in satisfying any applicable deductiblesterms and conditions of the parallel plan, out-of-pocket maximums program or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursarrangement of Acquiror.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(ic) Nothing in this Section 7.8 7.3 express or implied, is intended to or shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment right, benefit or service with remedy of any nature whatsoever under or forby reason of this Agreement, and no provision of this Section 7.3 shall constitute an amendment of, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries undertaking to amend, modify any Company Benefit Plan or terminate benefit plan of Acquiror or any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementaffiliate.
Appears in 1 contract
Samples: Merger Agreement (GP Investments Acquisition Corp.)
Employment Matters. (a) During Upon the period commencing on the Closing Closing, Asset Seller shall terminate, and ending on the date that is twelve (12) months after the Closing (or if earlier, the date Purchaser shall make offers of employment to each of the Continuing Employee’s termination employees of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time Asset Seller identified in Schedule 8.2(a) (each, a “Continuing Employee” and collectively, the “Continuing Transferred Employees”) with (i) except as otherwise mutually agreed between Parent and to commence effective upon the Closing. Such offers shall be made by Purchaser on terms on conditions which, in the aggregate for each such Continuing Employeeindividual, a base salary or base wage rate that is not less than the base salary or base wage rate provided are comparable to such Continuing Employee those existing immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less . Not later than the target annual or other short-term periodic cash incentive opportunities set forth on Closing Date, Sellers will provide to Purchaser such information with respect to each Transferred Employee as may be reasonably necessary to permit Purchaser to comply with its covenants in this Section 7.8(a8.2(a) with respect to the Transferred Employees. Purchaser hereby covenants and agrees that it will be responsible for any WARN Liability with respect to any Transferred Employees of the Company Disclosure ScheduleAsset Seller that accept employment with Purchaser at Closing pursuant to this Section 8.2(a), and (iii) such WARN Liabilities shall constitute Assumed Liabilities. Asset Seller hereby agrees that it will be responsible for any WARN Liability with respect to any employees of Asset Seller other compensation and employee benefits than Transferred Employees that are no less favorable, in the aggregate, than those provided accept employment with Purchaser at Closing pursuant to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a8.2(a). For the avoidance of doubt, nothing in this Agreement and such WARN Liabilities shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeeconstitute Excluded Liabilities.
(b) From and after Asset Seller shall remain solely responsible for the Company Merger Effective Timesatisfaction of all claims for medical, Parent shalldental, and shall cause each Parent Subsidiarylife insurance, as applicable, to honor, health accident or disability benefits brought by or in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements respect of current or former employees (including any change in control provisions therein) applicable to employees Transferred Employees), officers, directors, independent contractors or consultants of the Company Acquired Entity or any Company Subsidiary and in effect immediately Asset Seller or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring prior to the Company Merger Effective TimeClosing Date. Asset Seller also shall remain solely responsible for all worker's compensation claims of any current or former employees (including Transferred Employees), officers, directors, independent contractors or consultants of the Acquired Entity or Asset Seller which relate to events occurring prior to the Closing Date. Asset Seller shall pay, or cause to be paid, all such amounts to the appropriate Persons as and when due.
(c) Parent shall, and Purchaser shall cause the Parent Subsidiaries to, provide give those Transferred Employees that accept employment with Purchaser at Closing pursuant to Section 8.2(a) full credit for prior service from each Continuing Employeesuch employee’s length of service with the Company and the Company Subsidiaries (hire date as well as service with any predecessor employer of the Company or any Company Subsidiaryset forth on Schedule 4.13(a) for purposes of eligibility, eligibility and vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in Employee Plan of Purchaser for which such Continuing Employee employee is eligible to participate and offered participation (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that except where such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results would result in a duplication of benefits; provided that Purchaser may modify, terminate or revise any employee benefit plan as it sees fit; and provided, further, that Purchaser shall not be required to credit any service to the extent that doing so would result in duplication of benefits, and further provided that nothing herein entitles any employee to contributions under any retirement plan for time periods prior to or after the Closing). Asset Seller shall be responsible for all severance and other obligations related to the payment of final wages with respect to all employees of Asset Seller, whether terminated at, prior to, or (ii) following the Closing, other than those employees that are hired by Purchaser at Closing pursuant to Section 8.2(a), including all accrued but unused vacation pay that was vested at the time of termination with respect to such service was not recognized under employees. Purchaser shall be responsible for all severance and other obligations related to the corresponding Company payment of final wages with respect to Transferred Employees that accept employment with Purchaser at Closing pursuant to Section 8.2(a), excluding the Accrued Vacation Amount. Asset Seller shall be responsible for paying the portion of the Accrued Vacation Amount applicable to each Transferred Employee Programthat accepts employment with Purchaser at Closing pursuant to Section 8.2(a), and shall make such payments at the Closing.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated Effective as set forth in Section 7.8(d)(i) of the Company Disclosure ScheduleClosing Date, Asset Seller shall cease to serve and (ii) Purchaser shall commence to serve as the sponsoring and petitioning employer for U.S. immigration law purposes with respect to each Company 2015 Plan Restricted Share Transferred Employees that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an accept employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.with
Appears in 1 contract
Employment Matters. (a) During Except as otherwise provided in a collective bargaining agreement to which the Company or its Subsidiaries is currently a party, for a period commencing on of no less than one year following the Closing and ending on the date that is twelve (12) months after the Closing (or if earlierDate, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and Acquiror shall cause each Parent Subsidiary, as applicable, to, Surviving Corporation to continue to provide each individual who is an employee the employees of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as its Subsidiaries with employment at a level of the Company Merger Effective Time (eachsalary, a “Continuing Employee” and collectivelywages, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employeecommissions, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Scheduleif applicable, and benefits (iiiother than equity based compensation) other compensation and employee benefits that which are no less favorableat least substantially equivalent, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closingsalary, providedwages, howevercommissions, that no post-retirement medicalif applicable, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or and benefits provided prior to the Closing Date by the Company or its Subsidiaries taken as a whole (it being understood that incentive programs will remain discretionary); provided, however, that management of the Company who became management of the Surviving Corporation shall be taken into account permitted to propose and authorize modifications to salary, wages, commissions, if applicable, and benefits provided to employees from time to time after the Closing Date (and any changes made as a result thereof shall not be deemed to be, and shall not be, a breach of this Section 6.3 buy the Acquiror or the Surviving Corporation). This Section 6.3 shall not limit the obligation of Surviving Corporation to maintain any Employee Plan that, pursuant to an existing contract, must be maintained for purposes a period longer than one year or limit the ability of Parent’s Surviving Corporation to amend or terminate any Employee Plan in accordance with its terms as long as the Surviving Corporation continues to comply with its minimum aggregate benefit obligations under this Section 7.8(a)6.3. For the avoidance No provision of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will be construed as a guarantee of continued employment status of any Continuing Employeeemployee of the Company or its Subsidiaries and this Agreement shall not be construed so as to prohibit the Surviving Corporation or its Subsidiaries from terminating the employment of any employee of Surviving Corporation or its Subsidiaries.
(b) From and Except as otherwise provided in a collective bargaining agreement, to the extent Acquiror does not maintain any Employee Plan after the Company Merger Effective TimeClosing Date, Parent shall, (i) each employee and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees former employee of the Company and its Subsidiaries shall be credited with his or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length her years of service with the Company and the Company its Subsidiaries (as well as service with and any predecessor employer of entities thereof) before the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level Closing Date under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent plan of Acquiror and the Parent its Subsidiaries in which providing benefits similar to those provided under such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) Plan to the same extent that as such employee or former employee was entitled, before the Closing Date, to credit for such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, Plan; and (ii) with respect to the calendar year in which Acquiror ceases to maintain any particular Employee Plan, each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and employee shall be settled in cash (and given credit for the avoidance amounts paid under such Employee Plan for purposes of doubtapplying deductibles, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, activelyco-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible payments and out-of-pocket maximums under as though such amounts had been paid in accordance with the corresponding Company Employee Program in satisfying any applicable deductiblesterms and conditions of the parallel plan, out-of-pocket maximums program or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursarrangement of Acquiror.
(gc) Prior to making No provision of this Section 6.3 will create any broad-basedthird party beneficiary right on behalf of any current or former employee, written communications to the employees director or consultant of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company its Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementcollective bargaining unit.
Appears in 1 contract
Samples: Merger Agreement (Rexnord Corp)
Employment Matters. (a) During The Sellers and the period commencing on Seller Parent each will not interfere with the Closing Buyer's efforts to hire those employees, consultants, and ending on officers of the date that is twelve Sellers and the Seller Parent including without limitation Dennis Roche (12the "EMPLOYEES") months the Buyer seeks to hire after the Closing Closxxx Xxxx. Xxe Sellers and the Seller Parent will not terminate any Employees unless and until Buyer has had an opportunity to meet with and interview such Employees, provided that such meeting occurs no later than midnight August 6, 2002. The Sellers and the Seller Parent shall cooperate with Buyer to arrange such meetings. The Buyer may, but is not required to, make offers of employment or consultancy to all or any of such individuals. The terms and conditions (e.g., compensation matters, full-time, part-time, temporary, permanent) of such offers shall be determined by the Buyer in its sole discretion. Buyer agrees to notify Seller Parent of those Employees to whom it makes offers of employment by August 7, 2002. Those Employees who agree to accept a position with the Buyer or if earlier, its Affiliates shall be referred to herein as the date "TRANSFERRED EMPLOYEES". Each of the Continuing Employee’s termination of employment with Parent Sellers and the Seller Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee hereby consents to such hiring or engagement of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time Transferred Employees and who remains employed by Parent or any Parent Subsidiary effective as of the Company Merger Effective Time (eachClosing waives in perpetuity, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior respect to the Closing, (ii) target annual employment or other short-term periodic cash incentive opportunities that are not less than engagement by the target annual Buyer or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) any of its Affiliates of the Company Disclosure ScheduleTransferred Employees, and (iii) other compensation and employee benefits that are no less favorable, in any claims or rights either of the aggregate, than those provided to Sellers or the Seller Parent may have against the Buyer or any of its Affiliates or against any such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or Transferred Employees under any non-recurring compensation competition, confidentiality, employment, assignment of inventions or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeesimilar Contract.
(b) Neither the Buyer nor any of its Affiliates shall have any Liability which arises from either of Sellers or Seller Parent's employment of any current or former employee, officer, director or consultant of the Sellers or any Seller Affiliate or Employee Plan or any claim thereof or related thereto. From and after the Company Merger Effective TimeClosing, the Sellers and the Seller Parent shallshall remain jointly and severally responsible for any and all Liabilities in respect of the current and former Employees, including the Transferred Employees and shall cause each Parent Subsidiarytheir beneficiaries and dependents, relating to or arising in connection with or as applicablea result of (i) the employment or the actual or constructive termination of employment or consultancy of any such employee or consultant by either of the Sellers or any Seller Affiliate (including, to honorwithout limitation, in accordance connection with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees the consummation of the Company transactions contemplated by this Agreement), (ii) the participation in or accrual of benefits or compensation under, or the failure to participate in or to accrue compensation or benefits under, or the operation and administration of, any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company Employee Plan or any Company Subsidiary) for purposes of eligibility, vesting and other employee or retiree benefit level under any employee vacation, severance or paid time off benefit compensation plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, programpractice, policy, agreement or arrangement of either of the Company Sellers or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, Seller Affiliate or (iiiii) such service was not recognized under the corresponding Company Employee Program.
accrued but unpaid salaries, wages, bonuses, incentive compensation, vacation or sick pay or other compensation or payroll items (d) Without limiting the generality of Section 7.8(aincluding, without limitation, deferred compensation), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) . Each of the Company Disclosure Schedule, Sellers and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, Seller Parent shall remain by operation of applicable Law as an obligation of the Surviving Entity jointly and shall be settled in cash (and severally responsible for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release payment of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described retention, change in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall usecontrol, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health severance or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to similar compensation or benefits matters that which are affected by or may become payable to any of their Employees in connection with the consummation of the transactions contemplated by this Agreement.
(c) At the request of the Buyer and to the extent commercially reasonable and not requiring any costs or expenses to be paid by Sellers or Seller Parent, the Company shallSellers and the Seller Parent will cooperate with the Buyer to (i) treat the Buyer as a "successor employer" and the Sellers or the Seller Parent as a "predecessor," within the meaning of sections 3121(a)(1) and 3306(b)(1) of the Code, with respect to Transferred Employees who are employed by the Buyer for purposes of Taxes imposed under the United States Federal Unemployment Tax Act ("FUTA") or the United States Federal Insurance Contributions Act ("FICA") and (ii) avoid, to the extent possible, the filing of more than one IRS Form W-2 with respect to each such Transferred Employee for the calendar year within which the Closing Date occurs, but the Buyer shall not prohibited by be treated as a successor employer for any other purpose. Further, at the request of the Buyer with respect to any particular applicable Lawtax Law relating to employment, unemployment insurance, social security, disability, workers' compensation, payroll, health care or other similar Tax other than Taxes imposed under FICA and FUTA, the Sellers and the Seller Parent will (i) provide treat the Buyer as a successor employer and the Sellers or Seller Parent with as a copy predecessor employer, within the meaning of the intended communicationrelevant provisions of such tax Law, with respect to Transferred Employees who are employed by the Buyer and (ii) give Parent a reasonable period cooperate with the Buyer to avoid, to the extent possible, the filing of time more than one individual information reporting form pursuant to review and comment on each such tax Law with respect to each such Transferred Employee for the communication and (iii) consider any such comments in good faithcalendar year within which the Closing Date occurs.
(hd) During For a period of two (2) years from the Interim PeriodClosing Date, each of the Parent Parties Sellers and the Company and the Company Subsidiaries shallSeller Parent, will not, and agree to cause will not permit any of their applicable respective Affiliates to, cooperate solicit, offer to employ or retain the services of or otherwise interfere with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee relationship of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee Buyer or any other Person to of its Affiliates with any continued employment individual employed by the Buyer or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementits Affiliates.
Appears in 1 contract
Samples: Asset Purchase Agreement (Youthstream Media Networks Inc)
Employment Matters. (a) During Central hereby agrees to honor the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, Plans in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan terms as in effect on the date hereof, to the same extent that Holdings, Allright and the Subsidiaries would be required to perform them in the event that the Merger were not consummated. This Section 5.10(a) is intended to be for the benefit of this Agreementthe beneficiaries of the Plans.
(b) that Central shall honor, comply with and perform all of the respective terms and all obligations of Holdings, Allright or the Subsidiaries under any severance agreement, retention agreement, employment agreement or any severance or retention provision of any employment agreement set forth on Schedule 5.10. This Section 5.10(b) is intended to be for the benefit of the employees party to such agreements. Central agrees to provide severance to those employees of Allright or any Subsidiary which will be terminated after the Closing Date and which do not have been satisfied severance agreements or severance provisions in full through receipt any employment agreements in effect with Holdings, Allright or any Subsidiary as of the Merger Consideration and Fractional Share Consideration in Closing Date on terms not less favorable than it would provide to any of its or the MergerCentral Subsidiaries' similarly situated employees.
(c) Central agrees that individuals who are employed by Holdings, if any, Allright or the Subsidiaries immediately prior to the Closing Date shall remain by operation of applicable Law as an obligation employees of the Surviving Entity and Corporation immediately following the Closing Date (each such employee, an "Affected Employee"); provided, however, that nothing in this Section 5.10(c) shall be settled in cash (and for limit or otherwise restrict the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) ability of the Company Disclosure Schedule) no later than five (5) Business Days following Surviving Corporation to terminate, lay-off or reduce the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights work hours with respect to each the employment of any Affected Employees following their initial continued employment following the Effective Time.
(d) Central shall, or shall cause the Central Subsidiaries or the Surviving Corporation to, give Affected Employees full credit, for purposes of eligibility, vesting, benefit accrual and determination of the level of benefits under any employee benefit plans or arrangements maintained by Central or the Central Subsidiaries or the Surviving Corporation, for such Company 2015 Plan Restricted ShareAffected Employees' service with Holdings, Allright or the Subsidiaries to the same extent recognized by the Holdings, Allright and the Subsidiaries immediately prior to the Closing Date, provided however that the Affected Employees' eligibility to participate in, and benefits under, such plans and arrangements shall otherwise be determined under the terms of such plans.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall useCentral shall, and or shall cause the Parent Central Subsidiaries to useor the Surviving Corporation to, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, conditions exclusions and waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employeesthe Affected Employees under any welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations applicable or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for the corresponding Company Employee Program or Affected Employees immediately prior to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program Closing Date and (ii) honor provide each Affected Employee with credit for any payments, charges co-payments and expenses of Continuing Employees (and their eligible dependents) that were applied toward deductibles paid prior to the deductible and out-of-pocket maximums under the corresponding Company Employee Program Closing Date in satisfying any applicable deductibles, out-deductible or out- of-pocket maximums or co-payments requirements under a corresponding Parent Employee Program during the calendar year any welfare plans that such employees are eligible to participate in which after the Closing occursDate.
(gf) Prior For a period of two years immediately following the Closing Date, the coverage and benefits provided to making any broad-basedAffected Employees pursuant to employee benefit plans or arrangements maintained by Central or the Central Subsidiaries or the Surviving Corporation shall be, written communications in the aggregate, not less favorable than those provided to the similarly situated employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties Central and the Company Central Subsidiaries and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8Surviving Corporation.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Merger Agreement (Apollo Real Estate Investment Fund Ii L P)
Employment Matters. (a) During For the period commencing on the Closing Date and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries)thereafter, Parent shall, and or shall cause each the Surviving Corporation to, comply with the terms of the employment, severance, termination, consulting, retirement and other compensation and benefit plans, arrangements and agreements to which the Company or any of its Subsidiaries is a party set forth on Schedule 4.16(a); provided that such compliance will not result in a duplication of compensation or benefits; and provided, further, that the foregoing shall not limit the Surviving Corporation’s ability to amend or terminate such plans, arrangements and agreements to the extent permitted by their terms and otherwise in compliance with Section 7.3(b).
(b) For the period commencing on the Closing Date and ending on December 31, 2015, Parent Subsidiaryshall, as applicable, or shall cause the Surviving Corporation to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to of its Subsidiaries who continues in the Company Merger Effective Time and who remains employed by Parent employ of Parent, the Surviving Corporation or any Parent Subsidiary as of their respective Affiliates following the Company Merger Effective Time Closing Date (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with with: (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a annual base salary or base wage rate and cash incentive compensation opportunities that is not are no less than the annual base salary or base wage rate and cash incentive compensation opportunities, respectively, provided to such Continuing Employee immediately prior to the Closing, Closing Date and (ii) target annual or other short-term periodic cash incentive opportunities employee benefits (excluding equity compensation) that are not less favorable to such Continuing Employee than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(amore favorable to such Continuing Employee of (A) of the Company Disclosure Schedule, and (iii) other compensation and employee those benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the ClosingClosing Date, provided, however, and (B) those benefits that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary its Affiliates provide to employ any Person, nor shall it alter the attheir similarly-will employment status of any Continuing Employeesituated employees during such period.
(bc) From and after the Company Merger Effective TimeClosing, Parent shall(i) shall give each Continuing Employee full credit for all purposes, including eligibility to participate, level of benefits, vesting and shall cause each Parent Subsidiarybenefit accrual, as applicableunder any applicable employee benefit plans, to honorarrangements, in accordance with their terms, all collective agreements and employment-related entitlements (including severance and separation pay plansvacation/paid time off policies (and any accruals thereunder)) provided, agreements and arrangementssponsored, and all written employment, severance, retention, incentive, change in control and termination agreements (including maintained or contributed to by Parent or any change in control provisions therein) applicable to employees of its Affiliates for such Continuing Employee’s service with the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shallof its Subsidiaries, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of employer, to the same extent recognized by the Company or any Company Subsidiaryof its Subsidiaries, except to the extent such credit would result in the duplication of benefits for the same period of service, and (ii) for purposes of eligibility, vesting and benefit level shall credit to each Continuing Employee under any employee vacation, severance the applicable vacation or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and program of the Parent Subsidiaries in which or its Affiliates all unused vacation or other paid time off days of such Continuing Employee is eligible that accrued on or prior to participate the Closing Date, and shall not take any actions that adversely affect any such Continuing Employees (but or their future accrual of vacation or paid time off) as a result of such credit; provided that the Continuing Employees’ use of unused vacation or paid time off on and after the Closing Date shall be subject to any limitations set forth in applicable program of Parent or its Affiliates. Notwithstanding the foregoing, to the extent permitted under applicable Law, Parent shall not be required to provide credit for purposes of any such service for benefit accrual purposes under any employee benefit plan of Parent or any of its Affiliates that is a defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as or cause to preexisting conditionsbe waived for each Continuing Employee and his or her dependents, exclusionsany waiting period provision, payment requirement to avoid a waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employeesperiod, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting pre-existing condition limitations, exclusionslimitation, actively-at-work requirements requirement and any other restriction that would prevent immediate or full participation under the welfare plans of Parent or any of its Affiliates applicable to such Continuing Employee to the extent such waiting periods period, pre-existing condition limitation, actively-at-work requirement or other restriction would not have been applicable to (or was previously satisfied or waived by) such Continuing Employee under the terms of the comparable welfare plan of the Company Employee Program and its Subsidiaries, and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums give or cause to be given full credit under the corresponding Company welfare plans of Parent and its Affiliates applicable to each Continuing Employee Program in satisfying any applicable deductibles, out-of-pocket maximums and his or her dependents for all co-payments under a corresponding Parent Employee Program during the calendar year in which and deductibles satisfied prior to the Closing occursin the same plan year as the Closing, and for any lifetime maximums, as if there had been a single continuous employer.
(ge) Prior to making the Closing Date, the Company shall use its reasonable best efforts to obtain from each Person (listed on Schedule 7.3(e)) who is a “disqualified individual” (as defined in Treasury Regulation Section 1.280G-1) with respect to Company and to whom any broad-basedpayment or benefit is required or proposed to be paid or provided that would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code) a written agreement waiving such Person’s right to receive some or all of such payment or benefit (the “Waived Benefit”) so that all remaining portions of such payments or benefits applicable to such Person shall not be deemed to be a parachute payment that would not be deductible under Section 280G of the Code, written communications and accepting in substitution for the Waived Benefit the right to receive payments equal to the employees Waived Benefit only if approved by the holders of Company Voting Common Stock in a manner that complies with Section 280G(b)(5)(B) of the Code. Each such waiver shall identify the specific Waived Benefit and shall provide that if such approval of the holders of Company Voting Common Stock is not obtained in a manner that complies with Section 280G(b)(5)(B) of the Code, such Waived Benefit shall not be paid or provided and such Person shall have no right or entitlement with respect thereto. As soon as practicable after execution of such waivers but in any event prior to the Closing, the Company shall seek the approval of the holders of Company Voting Common Stock in a manner that complies with Section 280G(b)(5)(B) of the Code for the Waived Benefit that has been conditioned on the receipt of such stockholder approval. The determination of which payments or benefits may be deemed to constitute parachute payments, the form of each such waiver, the disclosure documents (and related calculations) and other circumstances of any such stockholder approval shall be provided to Parent for Parent’s advance review.
(f) The Parties acknowledge and agree that all provisions contained in this Section 7.3 are included for the sole benefit of the Parties. This Agreement is not intended by the Parties to, and nothing in this Section 7.3 or otherwise in this Agreement, whether express or implied, shall, (i) constitute an amendment to any Benefit Plan, (ii) obligate Parent or the Company or any Company Subsidiary of their respective Affiliates to maintain any particular compensation or benefit plan, program, policy or arrangement, (other than iii) create any communications consistent in all material respects obligation of the Parties with prior communications made by respect to any employee benefit plan of Parent or the Company or Parent) pertaining to compensation any of their respective Affiliates (including the Benefits Plans), or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (iiv) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in on any Continuing Employee or any other Person to (other than the Parties) any continued employment rights or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, remedies (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementincluding third-party beneficiary rights).
Appears in 1 contract
Employment Matters. (a) During the period commencing on Except as set forth below, from and after the Closing and ending on the date that is twelve (12) months Parent or an Operating Subsidiary shall provide employees of the Acquired Companies who continue their employment after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent employee benefit plans, programs and such Continuing Employee, a base salary or base wage rate policies that is not less than are substantially similar in the base salary or base wage rate aggregate to those employee benefits provided to such Continuing Employee Employees by the Seller, or the applicable Acquired Company, immediately prior to Closing. To the Closingextent applicable, (ii) target annual the Parent, or other short-term periodic cash incentive opportunities that are not less than an Operating Subsidiary, shall provide the target annual Continuing Employees with service credit under the Parent’s or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of an Operating Subsidiary’s 401(k)/profit sharing plan in which the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided Continuing Employees become eligible to participate for such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of Employees’ service with the Company and Acquired Companies prior to Closing for the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting participation and vesting. With respect to any welfare benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, plans maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not or an Operating Subsidiary for purposes of any the benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to Continuing Employees on and after the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective TimeClosing, the right Parent or such Operating Subsidiary shall, upon receipt of proper documentation from the holder thereof to any payment in respect of the Change in Control Price (as defined in the applicable Acquired Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Mergerplan provider, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, use commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditionsgive credit, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition in determining any deductible limitations, exclusions, activelyco-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible payments and out-of-pocket maximums under the corresponding Company Employee Program in satisfying to any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during amounts paid by such Continuing Employees for the calendar year in which the Closing occurs.
, with respect to similar plans maintained by the applicable Acquired Company and (gii) Prior with respect to making any broadhealth benefit plans, ensure that no eligibility waiting periods, evidence of insurability requirements, or pre-based, written communications existing condition limitations or exclusions shall apply with respect to the employees of the Company or any Company Subsidiary Continuing Employees (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, except to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments requirement, limitation or exclusion applied prior to the Closing under a similar plan maintained by the applicable Acquired Company). Nothing herein, express or implied, shall be construed to create any third-party beneficiary rights in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee present or former employee of the Company employee, service provider, independent contractor, consultant, any such person’s alternate payees, dependents or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee beneficiaries or any other Person to person, including, without limitation any Continuing Employee, whether in respect of continued employment service or service with resumed service, compensation, benefits or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementotherwise.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Installed Building Products, Inc.)
Employment Matters. (a) During Except as otherwise provided in Section 6.11(b) or as otherwise agreed with any employee, immediately following the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlierClosing, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and Purchaser shall cause each Parent Subsidiary, as applicable, to, provide the Transferred Companies to continue the employment of each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (eachis, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) employed by any of the Company Disclosure ScheduleTransferred Companies, at the same seniority and (iii) other compensation in substantially the same positions and functions as such employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee held immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to Closing Date (the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a“Continued Employees”). For Subject to any WARN Act liabilities allocated pursuant to Section 5.4, neither the avoidance foregoing nor any other provision of doubt, nothing in this Agreement shall require Parent constitute a commitment, undertaking or other obligation on behalf of Purchaser or the Company to continue the employment of such Continued Employee for any Parent Subsidiary period of time, and all Continued Employees shall be “at will” employees of the Company (unless applicable law determines otherwise) whose employment may be terminated at any time subject to employ any Personapplicable agreements, nor shall it alter the at-will employment status if any, of any Continuing Employeeparticular Continued Employees with respect to severance or other rights in connection with termination of employment.
(b) From and after the Closing, the Sellers and their Affiliates (other than the Transferred Companies) shall retain or assume sponsorship of (i) all the Benefit Plans that are not Company Merger Effective TimeBenefit Plans, Parent shall(ii) payments required under the Wheelabrator Metals Recovery Incentive Bonus Program for Plant Employees and the Wheelabrator Performance Incentive Program for performance from January 1 through the Closing Date and (iii) each United States based Company Benefit Plan that provides for retiree health or life insurance benefits (including the Mishawaka Retiree Medical Plan; the Xxxxxxx Retiree Medical Plan: Wheelabrator Corporation; Wheelabrator Technologies, Inc. Xxxxxxx Retirees Medical Benefits; Program of Group Health Care Benefits for Hourly Retirees Post 1986 (Plan 1 & Disabled Under 65 and Plan II), and shall cause each Parent SubsidiaryWheelabrator Corporation Retirees Age 65 and Over Group Health Benefits)) or nonqualified pension or United States based deferred compensation benefits (including the Retirement Plan for Non-Employee Directors of Wheelabrator Technologies, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangementsInc.), and in each case shall retain or assume all written employmentcommitments, severanceliabilities and obligations thereunder, retentionwhether arising before, incentiveon or after the Closing. From and after the Closing, change the Transferred Companies shall retain and assume sponsorship for all Company Benefit Plans other than the ones described in control clause (ii) and termination agreements (including any change in control provisions thereiniii) applicable to employees of the Company previous sentence and shall retain and assume all commitments, liabilities and obligations thereunder, whether arising before, on or any Company Subsidiary and in effect immediately prior to after the Company Merger Effective TimeClosing.
(c) Parent shallThe Sellers shall pay to each eligible employee of any Transferred Company a prorated payment in accordance with WM Parent’s Annual Incentive Program for the period from January 1 through the Closing Date for the year in which the Closing occurs based on the terms of the program as previously announced; provided, however, that if actual results are not available target results of the applicable performance measures for that year may be used.
(d) With respect to Continuing Employees and their dependents and beneficiaries, (a) the Sellers and their Affiliates (other than the Transferred Companies) shall be solely responsible for (i) claims for welfare benefits that are incurred under the Benefits Plans (other than the Company Benefit Plans) on or prior to the Closing, (ii) claims for workers’ compensation benefits that are incurred on or prior to the Closing and (iii) COBRA claims attributable to “qualifying events” that occur on or prior to the Closing and (b) the Purchaser shall be solely responsible for (i) claims for welfare benefits that are incurred following the Closing or under the Company Benefit Plans at any time, (ii) claims for workers’ compensation benefits that are incurred following the Closing and (iii) COBRA claims attributable to “qualifying events” that occur following the Closing. For purposes of the foregoing, (A) a claim for welfare benefits shall be considered incurred as follows: (x) long-term disability, life, accidental death and dismemberment, and business travel accident insurance benefits, upon the death, accident or other event giving rise to such benefits, and (y) short-term disability, health, dental and prescription drug benefits, upon provision of such compensation, services, materials or supplies, and (B) a claim for workers’ compensation benefits shall cause be considered incurred when the Parent Subsidiaries toinjury or condition giving rise to the claim occurs. In the case of a workers’ compensation claim relating to an injury or condition that occurred over a period both preceding and following the Closing, provide credit the claim shall be the joint responsibility of the Sellers and the Purchaser and be equitably apportioned between them based upon the relative periods of time that the condition or injury transpired preceding and following the Closing.
(e) Sellers and Purchaser shall take any action necessary to allow any Continued Employee who so elects to roll over his or her account balance (including outstanding loans, other than any loans with respect to which there have been any missed or late payments or that are in default) from any Benefit Plan that is a qualified defined contribution plan that includes a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code into an applicable benefit plan of the Purchaser or any of its Affiliates.
(f) The Closing shall not be deemed to be a “separation from service” (as such term is defined under Treasury Regulation Section 1.409A-3(a)(1)) for any Continuing Employee who is a Participant in the WM 409A Deferral Plan as of the Closing, however, each such Continuing Employee’s length active participation under the WM 409A Deferral Plan shall cease at Closing. For purposes of service the Sellers complying with the Company requirement to distribute Participant account balances in accordance with the terms of the WM 409A Deferral Plan and the Company Subsidiaries (as well as service with any predecessor employer requirements of Section 409A of the Company Code, the Purchaser shall notify the Sellers any time that a Continuing Employee has a distribution event under the WM 409A Deferral Plan. Such notification shall contain the identity, the type and date of distribution event (the event triggering the distribution including, but not limited to, separation from service, death, or disability), and address of such Continuing Employee and shall be provided within thirty (30) days following the occurrence of the distribution event.
(g) The provisions of this Section 6.11 are for the sole benefit of the parties to this Agreement and nothing herein, express or implied, is intended or shall be construed to confer upon or give to any Company Subsidiaryperson (including any Participant), other than the parties hereto and their respective permitted successors and assigns, any legal or equitable or other rights or remedies under or by reason of any provision of this Agreement. Nothing contained herein, express or implied, (i) for purposes of eligibilityshall be construed to establish, vesting and benefit level under amend, or modify any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, ; or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent Sellers’ or the Parent Subsidiaries Purchaser’s ability to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement; or (iii) is intended to confer upon any person (including any Participant) any right to any particular term or condition of employment.
Appears in 1 contract
Employment Matters. (a) During Parent shall (i) offer employment with Parent or its affiliates to; or, (ii) continue the period commencing on employment by the Closing and ending on Foreign Subsidiaries or foreign offices of an Acquired Company of, an aggregate of at least a majority of the date that is twelve (12) months after Company Employees, with any such new offers of employment to be effective at the Closing (or if earlier, upon proof of a legal right to work in the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent SubsidiaryUnited States, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior ). Such new employment offers shall be for at-will employment to the Company Merger Effective Time and who remains employed greatest extent permitted by law, shall be provided by Parent or any Parent Subsidiary as of to the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately applicable employees prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities and shall set forth on Section 7.8(a) the specific terms of their employment (the Company Disclosure Schedule“Post-Closing Employment Agreements”), and (iii) other compensation and employee benefits that are no less favorable, in including the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes terms of Parent’s obligations under this employee proprietary information agreement. Any Continuing Employees in the United States would, subject to any necessary transition period and the terms of the employee benefit plans of Parent, be eligible to participate in the health insurance plans, vacation and sick leave policy, Code Section 7.8(a). For the avoidance 423 employee stock purchase plan, Code Section 401(k) plan and other welfare benefit plans of doubt, nothing in this Agreement shall require Parent or any Merger LLC, to the same extent and subject to the same terms and conditions as comparably situated employees (including comparability with respect to geographic location) of Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) and its subsidiaries. From and after the Company Merger Effective Time, and to the extent permitted by applicable laws, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries Surviving Entity to, provide credit for each Continuing Employee’s length of recognize the prior service with the Company and Acquired Companies of each Continuing Employee in connection with the Company Subsidiaries (as well as service with any predecessor employer of benefit plans in which Continuing Employees are eligible to participate following the Company or any Company Subsidiary) Effective Time for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible eligibility to participate and determination of level of benefits (but not for purposes of any benefit accrual accruals or benefit amounts under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program plan or to the extent that such preexisting condition limitationsrecognition would result in duplication of benefits). At the request of Parent, exclusionsthe Acquired Companies shall terminate, activelyeffective as of the Closing Date, the employment of any employee who (i) has not been offered a Post-atClosing Employment Agreement or post-work requirements and waiting periods would not have Closing employment pursuant to this section 5.5(a); or (ii) has been satisfied offered a Post-Closing Employment Agreement or waived under post-Closing employment pursuant to this Section 5.5(a) but has refused to enter into such Post-Closing Employment Agreement or continue post-Closing employment.
(b) Parent shall ensure that the comparable Company Employee Program combination of (i) the proposed equity grants in the Post-Closing Employment Agreements (excluding any RSUs or Retention Shares described in Section 1.5(a) above); and (ii) honor any payments, charges and expenses of provisions to provide additional equity grants to Continuing Employees employed by the Foreign Subsidiaries or foreign offices of an Acquired Company, include offers or provisions to grant Company Employees a combination of restricted stock units (“RSUs”) and their eligible dependentsstock options (“Parent Stock Options”) that were applied toward with aggregate Deemed Value of approximately $5,000,000. For purposes of this Section 5.5(b), the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under “Deemed Value” of each RSU (on a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(gper share basis) Prior to making any broad-based, written communications shall be equal to the employees Parent Average Stock Price and the “Deemed Value” of each stock option (on a per share basis) shall be equal to forty percent (40%) of the Company Parent Average Stock Price. The Parent Stock Options (1) shall be granted within fifteen (15) days following the Closing; (2) have an exercise price equal to the fair market value of the Parent Common Stock on the date of grant as described in Parent’s 2007 Equity Incentive Plan (the “Parent Plan”); (3) shall vest in accordance with Parent’s standard four year vesting schedule commencing on the Closing; and (4) shall be subject to the terms and conditions of the Parent Plan. The RSUs shall vest or any Company Subsidiary (other than any communications consistent be awarded over a four year period in all material respects accordance with prior communications made by Parent’s standard schedule and shall be subject to the terms and conditions of the Parent Plan. The allocation of the RSUs and the Parent Options among the Company or Employees shall be at the discretion of Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior Prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) Buyer, acting through the Buyer Board, shall elect the Company’s Chairman and Chief Executive Officer as Vice Chairman of the Company Disclosure ScheduleBuyer Board and a member of the class of directors of the Buyer whose terms shall expire at the annual meeting of the Buyer’s stockholders to be held in 2016, effective as of the Effective Time, and (iii) other compensation and employee benefits that are no less favorableas President of the Buyer, in effective as of the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeEffective Time.
(b) From and after the Company Merger Effective Time, Parent the Buyer shall, and or shall cause the Surviving Corporation to, carry out all employer responsibilities under all Company Employee Plans and all employment, severance and termination plans and agreements, in each Parent Subsidiary, as applicable, to honor, case in accordance with their termsterms as in effect immediately before the Effective Time. Subject to the foregoing, all severance and separation pay plansfor a period of one year following the Effective Time, agreements and arrangementsthe Buyer shall provide to each employee of the Company or its Subsidiaries who remain employed as of immediately prior to the Effective Time (the “Company Employees”) employee benefits that are substantially comparable, and all written employmentin the aggregate, severance, retention, incentive, change in control and termination agreements to the employee benefits provided to such employees immediately before the Effective Time (except for the Buyer’s 401(k) plan (including its policy regarding employer matching contributions), which shall be at least as favorable to any change in control provisions therein) applicable to employees such employee of the Company or any Company Subsidiary and in effect of its Subsidiaries as it is to similarly situated employees of the Buyer as of immediately prior to the Company Merger Effective Time).
(c) Parent For all purposes (including purposes of vesting, eligibility to participate and level of benefits) under the employee benefit plans of the Buyer and its Subsidiaries (excluding any retiree healthcare plans or programs maintained by the Buyer or any of its Subsidiaries) providing benefits to any Company Employees after the Effective Time (the “New Plans”), the Buyer shall, and or shall cause the Parent Subsidiaries Surviving Corporation to, provide credit for each Continuing Employee’s length recognize all service of service the Company Employees with the Company and its Subsidiaries and their respective predecessors before the Company Subsidiaries (Effective Time, as well the case may be, as if such service were with the Buyer in any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries New Plan in which such Continuing Company Employee is may be eligible to participate (but after the Effective Time; provided that the foregoing shall not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided apply to the extent that (i) it results its application would result in a duplication of benefits, benefits or (ii) such service was not recognized under the corresponding Company Employee Program.
Plan in which such Company Employee participated immediately before the consummation of the Merger (d) Without such plans, collectively, the “Old Plans”). In addition, and without limiting the generality of Section 7.8(a)the foregoing, (i) cash incentive bonuses for calendar year 2023 each Company Employee shall be treated as set forth immediately eligible to participate, without any waiting time, in Section 7.8(d)(i) of any and all New Plans to the Company Disclosure Scheduleextent such New Plan is comparable to the Old Plans, and (iiii)(A) with respect for purposes of each New Plan providing medical, dental, pharmaceutical or vision benefits to each any Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective TimeEmployee, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and Buyer shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods pre-existing condition exclusions and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements of such New Plan to be waived for such Company Employee and waiting periods his or her covered Table of Contents dependents, unless such conditions would not have been satisfied or waived under the comparable Old Plan of the Company or its Subsidiaries in which such Company Employee Program participated immediately prior to the Effective Time and (iiB) honor the Buyer shall cause any paymentseligible expenses incurred by such employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, charges coinsurance and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and maximum out-of-pocket maximums under requirements applicable to such employee and his or her covered dependents for the corresponding Company Employee Program applicable plan year as if such amounts had been paid in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursaccordance with such New Plan.
(gd) Prior If any Company Employee (who is not otherwise a party to making any broad-based, written communications an Employment Agreement) whose employment is terminated on or prior to the first anniversary of the Effective Time under circumstances under which such Company Employee would have received severance benefits under the Company’s severance practices (the “Company Severance Practices”), the Buyer will cause the Surviving Corporation to provide that such Company Employee shall be entitled to severance benefits from the Surviving Corporation that are equal to the greater of (i) the severance benefits that would have been paid under the Company Severance Practices as in existence on the date of this Agreement or (ii) the severance benefits payable under similar circumstances pursuant to a severance plan of the Buyer or its Affiliates as may be in effect at such time for similarly situated United States employees of the Buyer and its Affiliates and giving effect to the provisions of this Section 6.14.
(e) Notwithstanding anything to the contrary set forth in this Agreement (including the foregoing Section 6.14(b) through Section 6.14(d)), no provision of this Agreement shall be construed to (i) confer upon any Company Employee any right to employment or continued employment with the Company, the Buyer or any of their respective Affiliates for any period, (ii) confer any remedies upon any Company Employee, or (iii) amend or alter any New Plan, any Old Plan or any agreement in effect on the date hereof, or entered into after the date hereof, between any Company Employee, on the one hand, and the Buyer, the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreementof their respective Affiliates, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faithother hand.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Merger Agreement (Palomar Medical Technologies Inc)
Employment Matters. (a) During Except as otherwise provided herein, Seller acknowledges that although Purchaser anticipates and has some expectation that it might be able to enter into mutually agreeable employment arrangements with a significant portion of the Employees, Purchaser shall have no obligation to employ or provide severance payments or other benefits to any Employee. Except as otherwise provided herein, Purchaser shall be under no obligation to hire any Employee except as may be mutually agreed to by Purchaser and each Employee. Except for Employees or former Employees with whom Purchaser enters into an employment arrangement, any obligations to or benefits for Employees or former Employees of Seller shall be the responsibility of Seller. Except for Employees or former Employees with whom Purchaser enters into an employment arrangement, Purchaser shall have no obligations whatsoever for the provision or continuation of any bonus, compensation, welfare or pension benefit programs for any present or former Employee of the Seller, and Purchaser shall have no, nor does it accepts any, Liability with respect to any present or former Employee of Seller.
(b) Each of Seller and Shareholder covenants and agrees that, during the period commencing on the date hereof and continuing through the Closing and ending Date, it will not offer employment on any terms (whether part-time or full-time, as an employee, independent contractor or otherwise) to, or enter into any discussions concerning the same with, any Employees or former Employees, other than Employees or former Employees with respect to whom Purchaser has indicated to Seller in writing that it does not intend to offer employment.
(c) The active participation in the Benefit Plans to which Seller contributes or is required to contribute of all Employees who become employees of Purchaser shall cease as of the date that is twelve such coverage ceases in accordance with Seller's ordinary practice. Any Employee who becomes an employee of Purchaser shall be entitled to any benefits payable upon termination of employment from Seller pursuant to the terms of the Benefit Plans or as required by the Laws pertinent thereto. Notice of the availability of continuation coverage (12as defined in Section 602 of ERISA and Section 4980B of the Code) months ("COBRA") shall be provided by Seller to all such persons properly entitled thereto and all persons properly entitled to and electing such coverage shall be provided such coverage, in each case in accordance with COBRA.
(d) As soon as practicable after the Closing Date, Purchaser shall arrange for each Employee of Seller that Purchaser hires (and each such Employee's eligible dependent(s)) (collectively, "Seller Participants") to participate in Purchaser's (or if earlier, its applicable Affiliate's) group insurance and 401(k) plans (the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries"Purchaser Plans"), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medicalsuch commencement of participation shall be subject to reasonable enrollment procedures established by Purchaser. Each Seller Participant shall, equity-based compensationto the extent permitted by law and applicable tax qualification requirements, deferred compensationand subject to any generally applicable break in service or similar rule, or retention, change-in-control or other special or non-recurring compensation or benefits provided receive credit: (i) for all purposes (including without limitation for eligibility to participate and vesting) under the Purchaser Plans for years of service with Seller (and its subsidiaries and predecessors) prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubtDate, nothing in this Agreement shall require Parent or any Parent Subsidiary pursuant to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, such records provided by Seller to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, Purchaser; and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately for accrued "flexible time off" prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted ShareClosing Date.
(e) Parent and the Company shall take the actions described in Section 7.8(e) If Shareholder makes a cash payment to a Seller Participant for "flexible time off" accrued as of the Company Disclosure Schedule.
(f) Parent shall useClosing Date, and shall cause such payment was made at the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program request of such Seller Participant and in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions accordance with respect to participation and coverage the requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy Purchaser agrees to reimburse Shareholder for such payment upon request and presentation of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faithsupporting documentation.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Employment Matters. (a) During Acquiror agrees that all employees of Target who continue employment with Acquiror or the Surviving Corporation after the Effective Time (the "Continuing Employees") shall be eligible to (i) continue to participate in the Acquiror or Surviving Corporation's (as determined by Acquiror) health, vacation and other non-equity based employee benefit plans; provided, however, that (A) nothing in this Section 5.15 or elsewhere in this Agreement shall limit the right of Acquiror or the Surviving Corporation to amend or terminate any such health, vacation or other employee benefit plan at any time, and (B) if Acquiror or the Surviving Corporation amends or terminates any such health, vacation or other employee benefit plan, then, (1) subject to any necessary transition period, each Continuing Employee who immediately prior to the termination of such plan participated in such plan shall be eligible to participate in Acquiror's health, vacation and other non-equity based employee benefit plans, to substantially the same extent as employees of Acquiror in similar positions and at similar grade levels, (2) to the extent permitted by such plan, Acquiror shall credit each such Continuing Employee's service with Target, to the same extent as such service was credited under the similar employee benefit plans of Target immediately prior to the Effective Time, for purposes of determining eligibility to participate in such employee benefit plan of Acquiror, and (3) to the extent permitted or required by such employee benefit plan of Acquiror and applicable law, Acquiror shall waive any pre-existing condition limitations, waiting periods or similar limitations under such employee benefit plan of Acquiror and shall provide each such Continuing Employee with credit for any co-payments previously made and any deductibles previously satisfied, and (ii) participate in Acquiror's equity-based plans to the same extent as similarly situated employees of Acquiror. Nothing in this Section 5.15 or elsewhere in this Agreement shall be construed to create a right in any employee to employment with Acquiror or the Surviving Corporation and, subject to any other binding agreement between an employee and Acquiror or the Surviving Corporation, the employment with each Continuing Employee shall be "at will" employment. Acquiror shall review the health, vacation and other employee benefit plans of Target prior to the Effective Time in connection with its obligations under this Section 5.15(a).
(b) Pursuant to the terms and conditions of the Target ESPP, Target's Board of Directors shall (i) cause the offering period commencing on the Closing and ending on currently in effect as of the date hereof to be the last such offering period under the Target ESPP, and (ii) cause all Purchase Rights to be exercised at the end of such offering period or otherwise ensure that is twelve the holders of such Purchase Rights have withdrawn from the Target ESPP in accordance with the terms thereof.
(12c) months after To the Closing extent applicable, Acquiror and Target shall each take such reasonable steps as are required to cause the disposition and acquisition of equity securities (or if earlier, including derivative securities) pursuant to Section 1 in connection with the date consummation of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide Merger by each individual who is an employee officer or director of the Company or any Company Subsidiary immediately prior Target to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on qualify for exemption from Section 7.8(a16(b) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided Exchange Act pursuant to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized Rule 16b-3 promulgated under the corresponding Company Employee ProgramExchange Act.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior Prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, Target shall take such action as is necessary to terminate its 401(k) Plan (the right "Target 401(k) Plan") and also shall take all necessary action to ensure that each employee of Target or any Target Subsidiary is fully vested in his or her account balance under the Target 401(k) Plan. As soon as practicable following IRS approval of the holder thereof to any payment in respect termination of the Change in Control Price (Target 401(k) Plan or such earlier time as defined in Acquiror may deem reasonably practicable, the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and assets thereof shall be settled in cash (distributed and for Acquiror shall permit the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any roll such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.distributions over into Acquiror's 401(k)
Appears in 1 contract
Samples: Merger Agreement (Vitalcom Inc)
Employment Matters. (a) During For a period of one (1) year following the period commencing on Effective Time (the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries“Continuation Period”), Parent shallshall provide, and shall or cause to be provided, to each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any its Subsidiaries who is employed by the Company Subsidiary or its Subsidiaries as of immediately prior to the Company Merger Effective Time and who remains continues to be employed by Parent the Surviving Corporation (or any Parent Subsidiary as of the Company Merger Effective Time Affiliate thereof) during such one (1)-year period (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not no less than the base salary or base wage rate that provided to such Continuing Employee by any Acquired Company immediately prior to the ClosingEffective Time, (ii) target annual cash incentive compensation opportunities (excluding equity or equity-based compensation and any retention or other shortspecial or non-term periodic cash recurring bonus or incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(aawards) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee by any Acquired Company immediately prior to the Closing, provided, however, that no post-retirement medical, Effective Time and (iii) other compensation and employee benefits (excluding equity or equity-based compensation, deferred compensation, or retention, change-in-control compensation and any retention or other special or non-recurring compensation bonus or benefits incentive awards) that in the aggregate are no less favorable than those provided to such Continuing Employee by any Acquired Company immediately prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing EmployeeEffective Time.
(b) From and after Parent agrees that during the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their termsContinuation Period, all severance Continuing Employees shall be eligible to continue to participate in the Surviving Corporation’s health and separation pay plans, agreements welfare benefit plans (to the same extent such Continuing Employees were eligible to participate under the Company’s health and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect welfare benefit plans immediately prior to the Company Merger Effective Time.
); provided, however, that (ci) nothing in this Section 6.3 or elsewhere in this Agreement shall limit the right of Parent or the Surviving Corporation to amend or terminate any such health or welfare benefit plan at any time and (ii) if Parent or the Surviving Corporation terminates any such health or welfare benefit plan then the Continuing Employees shall be eligible to participate in the Surviving Corporation’s (or an Affiliate’s) corresponding health and welfare benefit plans. To the extent that service is relevant for eligibility or vesting under any benefit plan of Parent and/or the Surviving Corporation, then Parent shall ensure that such benefit plan shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibilityeligibility and vesting, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) accrual, credit Continuing Employees for service prior to the Effective Time with the Company and its Affiliates or their respective predecessors to the same extent that such service was recognized prior to the Effective Time under a similar plan, program, policy, agreement or arrangement the corresponding benefit plan of the Company. In addition, Parent and/or the Surviving Corporation shall credit each Continuing Employee with paid time off equal to the accrued paid time off such Continuing Employee had accrued with the Company that was unused as of the Effective Time. To the extent that service is relevant for benefit levels, including paid time off accruals, following the Effective Time, Parent shall ensure that any employee plan of Parent and/or the Surviving Corporation shall, for purposes of benefit levels, credit Continuing Employees for service prior to the Effective Time with the Company to the same extent that such service was recognized prior to the Effective Time.
(c) Following the Effective Time, Parent or an Affiliate of Parent shall (i) waive any Company Subsidiarypreexisting condition limitations otherwise applicable to Continuing Employees and their eligible dependents under any plan of Parent or an Affiliate that provides health benefits in which Continuing Employees are eligible to participate following the Effective Time, except other than any limitations that no were in effect with respect to such employees immediately prior service credit will to the Effective Time under the corresponding Employee Plan, (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by the Continuing Employees and their eligible covered dependents under the health plans in which they participated immediately prior to transitioning into a plan of Parent or an Affiliate during the portion of the plan year prior to such transition in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans of Parent or an Affiliate and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be required applicable to a Continuing Employee and his or provided her eligible covered dependents on or after the Effective Time, in each case to the extent that (i) it results in a duplication of benefits, such Continuing Employee or (ii) such service was not recognized eligible covered dependent had satisfied any similar limitation or requirement under an analogous Employee Plan prior to the corresponding Company Employee ProgramEffective Time.
(d) Without limiting The provisions of this Section 6.3 are solely for the generality benefit of the Parties, and no provision of this Section 7.8(a)6.3 is intended to, or shall, constitute the establishment or adoption of or an amendment to any employee benefit plan for purposes of ERISA or otherwise, and no current or former employee or any other individual associated therewith shall be regarded for any purpose as a third party beneficiary of the Agreement or have the right to enforce the provisions hereof. Nothing in this Section 6.3 or elsewhere in this Agreement shall be construed to create a right in any Person to employment with Parent, the Surviving Corporation or any other Affiliate of the Surviving Corporation or to any compensation or benefits and the employment of each Continuing Employee shall be “at will” employment to the extent permitted by applicable Legal Requirements.
(e) With respect to the Company’s 2023 fiscal year, the Company may, prior to the Offer Acceptance Time, pay annual bonuses with respect to such fiscal year at the level determined by the Board of Directors in accordance with the terms of the applicable Employee Plan and as would otherwise be determined in the ordinary course of business and consistent with past practice, provided that any such annual bonuses shall be (i) cash incentive bonuses for calendar no greater than those made with respect to the Company’s 2022 fiscal year, and (ii) calculated based on the Company’s reasonable estimate of the extent to which it projects that the performance targets otherwise applicable to such 2023 fiscal year 2023 bonus under such Employee Plan would have been achieved, and prorated based on the number of days elapsed in the applicable performance period as of the Closing Date, unless agreed to by Parent in advance in writing. If the Closing has not occurred prior to January 1, 2024, the Board of Directors shall be treated permitted to establish annual bonus targets and metrics with respect to the 2024 fiscal year in accordance with the terms of the applicable Employee Plan and as would otherwise be determined in the ordinary course of business and consistent with past practice.
(f) During the Continuation Period, Parent shall provide, or shall cause its Affiliates to provide, each Continuing Employee who experiences a termination of employment from Parent or any of its Affiliates during the Continuation Period with severance benefits that are no less favorable, in the aggregate, than those that would have been provided to such Continuing Employee by any Acquired Companies under the applicable severance policies set forth in Section 7.8(d)(i6.3(f) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior solely to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to extent that any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through such severance policies condition receipt of the Merger Consideration and Fractional Share Consideration severance payments in the Mergerexcess of Legal Requirement, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and upon provision a release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described claims in Section 7.8(e) favor of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursParent.
(g) Prior to making any broad-based, written communications Following the date of this Agreement and prior to the employees Offer Acceptance Time, the Parties shall (and shall cause their respective Affiliates to), cooperate and use good faith efforts in carrying out requisite notifications to, and consultations, discussions or negotiations with, applicable unions, works councils, labor organizations or other employee representative groups in connection with the Transactions.
(h) The Parties acknowledge and agree that all provisions contained in this Section 6.3 are included for the sole benefit of the respective Parties and shall not (i) create any third-party beneficiary or other rights in any current or former employee, manager, officer, director or independent contractor of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by to enforce the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by provisions of this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communicationSection 6.3, (ii) give Parent a reasonable period be construed as an amendment, waiver or creation of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each Employee Plan or other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee benefit plan of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiariesany Subsidiary, Parent Parent, or the Parent Subsidiariesany of their respective Affiliates, (iii) constitute or be treated as an amendmentlimit in any way the right of the Company, modificationany Subsidiary, adoptionParent, suspension or termination of any Company Employee Program or any Parent of their respective Affiliates to amend or terminate any Employee ProgramPlan at any time, or (iv) alter create any right to employment or limit the ability service, continued employment or service or any term or condition of employment or service with any of the Company, the Company Subsidiariesany Subsidiary, Parent Parent, or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementtheir respective Affiliates.
Appears in 1 contract
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date All employees of the Continuing Employee’s termination Acquired Companies (other than the Key Persons) as of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains Closing shall automatically, by operation of Law, continue to be employed by Parent or any Parent Subsidiary as of the applicable Surviving Company Merger Effective Time following the Closing (each, a “Continuing Employee” and collectively”). The Purchaser shall, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employeeor shall cause its Affiliates to, for a base salary or base wage rate that is not period of no less than the base salary or base wage rate provided to such Continuing Employee immediately prior to one (1) year after the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and provide to each Continuing Employee employee benefits that (including, without limitation, health, welfare, retirement and severance benefits) which are no less favorable, in the aggregate, than those provided to similarly-situated employees of the Purchaser or its Affiliates, except that such obligations shall cease at the time such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, is terminated for cause or retention, change-in-control voluntarily resigns from his or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeeher employment.
(b) From For purposes of determining eligibility, vesting, participation and benefit accrual under the Purchaser’s and its Affiliates’ Plans providing employee benefits (including, without limitation, severance) to Continuing Employees after the Company Merger Effective TimeClosing Date (the “Purchaser Benefit Plans”), Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length Employee shall be credited with his or her years of service with the Company Acquired Companies and their predecessors prior to the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) Closing Date to the same extent that as such Continuing Employee was (or would have been) entitled, before the Closing Date, to credit for such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company SubsidiaryPlans, except that no such prior service credit will be required or provided to the extent that providing such credit would result in any duplication of benefits. In addition, to the extent permitted under applicable Law and the Plans, the Purchaser shall (or shall cause one of its Affiliates to) (i) it results cause each Continuing Employee to be immediately eligible to participate, without any waiting time, in a duplication of benefits, or any and all Purchaser Benefit Plans; (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health Purchaser Benefit Plan providing medical, dental, hospital, pharmaceutical or welfare benefits to (i) waive vision benefits, all limitations as to preexisting conditions, exclusions, waiting periods pre-existing condition exclusions and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements of such Purchaser Benefit Plan to be waived for such Continuing Employee and waiting periods would not have been satisfied his or waived her covered dependents (except to the extent that such exclusions or requirements applied to the Continuing Employee under the comparable Company Employee Program Plans); and (iiiii) honor cause any co-payments, charges deductibles and other eligible expenses incurred by such Continuing Employee and/or his or her covered dependents during the plan year ending on the Closing Date to be credited for purposes of Continuing Employees (satisfying all deductible, coinsurance and their eligible dependents) that were applied toward the deductible and maximum out-of-pocket maximums requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year of each comparable Purchaser Benefit Plan (to the extent such credit would have been given under comparable Plans prior to the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occursClosing).
(gc) Prior to making any broad-based, written communications to This Section 5.09 is for the employees sole benefit of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this AgreementParties and shall not, the Company shall, to the extent and shall not prohibited by applicable Lawbe construed so as to, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider create any such comments third party right in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assignsEmployee, (ii) constitute confer upon any Person the right to employment or create an continued employment agreement for any period of time, or create any right in any Continuing Employee or any other Person to any continued employment particular term or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiariescondition of employment, (iii) constitute an amendment or be treated as an amendment, modification, adoption, suspension or termination modification of any Company Employee Program or any Parent Employee Programemployee benefit plan, or (iv) alter or limit obligate the ability of the CompanyPurchaser, the Company Subsidiaries, Parent Seller Parties or the Parent Subsidiaries Acquired Companies to amend, modify adopt or terminate maintain any benefit compensatory or benefits plan, programagreement arrangement or prevent the Purchaser, policy, agreement the Seller Parties or arrangement at the Acquired Companies from modifying or terminating any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement program or other arrangement.
Appears in 1 contract
Employment Matters. (a) During the For a period commencing on of one (1) year following the Closing and ending on the date that is twelve (12) months after the Closing (or if earlierDate, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and Buyer shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to of its Subsidiaries who continues in the Company Merger Effective Time and who remains employed by Parent employ of Buyer or any Parent Subsidiary as of its respective Affiliates following the Company Merger Effective Time Closing Date (each, a “Continuing Employee” ”) and collectivelywhose terms and conditions of employment are not subject to a collective bargaining or similar labor agreement (each, the a “Continuing EmployeesCompany Non-Union Employee”) with (iA) except as otherwise mutually agreed between Parent and such Continuing Employee, a annual base salary or base wage rate and annual cash incentive compensation opportunities that is not are no less than the annual base salary or base wage rate and annual cash incentive compensation opportunities, respectively, provided to each such Continuing Company Non-Union Employee immediately prior to the ClosingClosing Date, (iiB) target annual or other short-term periodic cash incentive opportunities employee benefits that are not less than substantially comparable in the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of aggregate to those benefits provided by the Company Disclosure Scheduleto each such Company Non-Union Employee immediately prior to the Closing Date; provided that such employee benefits shall exclude any change in control, transaction and retention benefits, equity and equity-based awards and programs, defined benefit pension benefits and retiree medical benefits that may be provided by the Company immediately prior to the Closing Date, and (iiiC) other compensation and employee severance benefits that are no less favorable, favorable than the severance benefits provided pursuant to the severance plans or policies listed in the aggregate, than those provided Schedule 7.3(b). As to such each Continuing Employee immediately prior whose terms and conditions of employment are subject to a collective bargaining or similar labor agreement, Buyer shall comply with the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, terms and conditions of each applicable collective bargaining or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing similar labor agreement in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employeea manner consistent with Law.
(b) From and after the Closing, Buyer shall give each Company Merger Effective TimeNon-Union Employee service credit for purposes of eligibility to participate, Parent shall, level of benefits and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all vesting under any employee benefit plans (including severance and separation pay plansvacation/paid time off policies, agreements and arrangementsbut excluding any defined benefit pension plan benefits) provided, and all written employmentsponsored, severance, retention, incentive, change in control and termination agreements (including maintained or contributed to by Buyer or any change in control provisions therein) applicable to employees of its Affiliates for such Company Non-Union Employee’s service with the Company or any Company Subsidiary of its Subsidiaries, and in effect immediately prior with any predecessor employer, to the same extent recognized by the Company Merger Effective Timeor any of its Subsidiaries under any analogous Company Benefit Plan, except to the extent such credit would result in the duplication of benefits for the same period of service.
(c) Parent shallBuyer shall use commercially reasonable efforts to (i) waive or cause to be waived for each Company Non-Union Employee and his or her dependents, any waiting period provision, payment requirement to avoid a waiting period, pre-existing condition limitation, actively-at-work requirement and any other restriction that would prevent immediate or full participation under the welfare plans of Buyer or any of its Affiliates applicable to such Company Non-Union Employee to the extent such waiting period, pre-existing condition limitation, actively-at-work requirement or other restriction would not have been applicable to (or was previously satisfied by) such Company Non-Union Employee under the terms of the analogous welfare plans of the Company and its Subsidiaries, and (ii) give or cause to be given full credit under the welfare plans of Buyer and its Affiliates applicable to each Company Non-Union Employee and his or her dependents under any analogous Company Benefit Plan for all co-payments, deductibles and out-of-pocket limits satisfied prior to the Closing in the same plan year as the Closing and, for any lifetime maximums, as if there had been a single continuous employer.
(i) At least five Business Days prior to the Closing Date, the Company shall submit for approval by its stockholders, in conformance with Section 280G of the Code and the regulations thereunder (the “280G Stockholder Vote”), any payments that could constitute a “parachute payment” pursuant to Section 280G of the Code (each, a “Parachute Payment”), (ii) at least seven Business Days prior to the Closing Date, the Company shall use reasonable best efforts to ensure that the right to any Parachute Payment shall have been irrevocably waived by each of the applicable “disqualified individuals” (as defined under Section 280G of the Code and the regulations promulgated thereunder) and (iii) the Seller shall have delivered to the Buyer true and complete copies of all disclosure and documents that comprise the stockholder approval of each Parachute Payment and the calculations and any backup data reasonably requested by Buyer used to determine what payments might constitute Parachute Payments in sufficient time to allow the Buyer to comment thereon but no less than five Business Days prior to the 280G Stockholder Vote, and shall reflect all reasonable comments of the Buyer thereon.
(e) Prior to the Closing Date, Seller shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service its Affiliates to comply with any predecessor employer Law or other requirement (whether statutory or pursuant to a Company Labor Agreement or any other written agreement with, or the constitution of, any works council or other employee body), to inform and/or consult with any employees, a relevant trade union or works council or any other employee representatives in relation to the transactions contemplated hereby.
(f) The parties acknowledge and agree that all provisions contained in this Section 7.3 are included for the sole benefit of the parties hereto. This Agreement is not intended by the parties to, and nothing in this Section 7.3 or otherwise in this Agreement, whether express or implied, shall, (i) constitute an amendment to or modification of any Company Benefit Plan or Company Labor Agreement or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any other employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or (ii) create any retirement or savings plan, maintained by Parent and obligation of the Parent Subsidiaries in which such Continuing Employee is eligible parties hereto with respect to participate (but not for purposes of any employee benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of Buyer or the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a)their respective Affiliates, (iiii) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding prevent Buyer or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any of their respective Affiliates from amending or terminating any Company Subsidiary Benefit Plans in accordance with their terms, or (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (iiv) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in on any Continuing Employee or any other Person (other than the parties to this Agreement) any continued employment rights or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, remedies (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementincluding third-party beneficiary rights).
Appears in 1 contract
Employment Matters. From and after the Execution Date, Seller will assist Buyer in Buyer’s efforts to hire certain of Seller’s field level employees whose duties relate to the operation of Assets to effectuate a smooth transition of the operation of the Assets by Buyer. Within ten (10) Business Days from the Execution Date, Seller will provide Buyer with a list (the “Available Employees List”) of the field level employees of Seller and its affiliates (the “Available Employees”), who, subject to the occurrence of the Closing, will be available for employment with Buyer, which list will include name, job title and start date. Buyer shall provide offers of employment to the Available Employees on the Available Employees List that Buyer desires to hire, with each offer stipulating the date for commencement of work (the “Hire Date”). Buyer shall provide Seller with notice of the names of those Available Employees to whom Buyer has made employment offers contemporaneously with the making of such offers. The Available Employees that Buyer hires as of the Hire Date are referred to as the “New Employees.” Any offers made by Buyer to any Available Employee shall be contingent upon the occurrence of the Closing. If the Closing does not occur, all such offers shall automatically terminate, and Buyer will not, unless acting in accordance with Seller’s prior written consent, solicit, encourage or otherwise induce any such employee to leave the employment of Seller or become an employee of Buyer. Furthermore, no Available Employee shall become a New Employee unless he or she (a) During accepts Buyer’s offer of employment under the period commencing terms provided in Buyer’s offer, (b) passes any required pre-employment screening required by Buyer and (c) on the Closing and ending on the date that Hire Date, is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a)actively at work. For the avoidance of doubt, nothing Nothing in this Agreement shall require Parent or be construed or interpreted as requiring Buyer to offer employment to any Parent Subsidiary employee of Seller or to employ any Person, nor shall it alter continue the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements employee of Seller (including any change in New Employees) following their respective Hire Date, or to prevent Buyer from changing the terms and conditions of employment (including compensation and benefits) of any of its employees (including any New Employees) following their respective Hire Dates. Prior to the Hire Date, of an Available Employee, Seller shall have the right to control provisions therein) applicable and direct such Available Employee as to employees the performance of duties and as to the Company or means by which such duties are performed, including the right to terminate the employment of any Company Subsidiary Available Employee. Seller shall inform Buyer of all employment, benefit, workplace and in effect immediately performance matters relating to Available Employees prior to the Company Merger Effective Time.
(c) Parent shallAvailable Employees’ respective Hire Dates that, and shall cause in the Parent Subsidiaries toreasonable judgment of Seller’s management, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with could have a material impact on Buyer prior to taking any predecessor employer of the Company actions or making any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) decisions with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as such matters, subject to applicable law. Notwithstanding any other provisions of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy provisions of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 14.6 are not intended to and shall (i) not create or confer any third-party beneficiary rights upon respecting any Person, including any Continuing Available Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementNew Employee.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Mid-Con Energy Partners, LP)
Employment Matters. (a) During the period commencing on No later than thirty (30) days prior to the Closing and ending on the Date or no later than five (5) days following any applicable hire date that is twelve occurs after such thirtieth (1230th) months day, Buyer or one of its Affiliates shall provide, or shall cause an Affiliate to provide, an offer of employment to each Scheduled Business Employee, Asset Selling Entity Business Employee, and Offeree to the extent that the employment of such Scheduled Business Employee, Asset Selling Entity Business Employee or Offeree would not transfer to Buyer (or an Affiliate of Buyer, including after the Closing Closing, a Transferred Subsidiary) under the TUPE Regulations or would not otherwise automatically transfer to Buyer (or if earlieran Affiliate of Buyer, including after the Closing, a Transferred Subsidiary), which offer of employment shall be consistent with the terms of Section 5.2(c). Notwithstanding the foregoing, the date parties acknowledge that the purchase and sale of the Continuing Devices & Services Business would constitute a “transfer of an undertaking” under the Finnish Employment Contracts Act and similar laws in other jurisdictions in which the TUPE Regulations are applicable. Consequently, Business Employees who would be required under the TUPE Regulations to transfer to Buyer or any Affiliate thereof, shall automatically transfer to Buyer (or an Affiliate) at the Closing in accordance with applicable Law, without the need for a separate offer. Each (i) Scheduled Business Employee’s termination , Asset Selling Entity Business Employee, Offeree, in each case, who has accepted an offer of employment from Buyer or an Affiliate of Buyer and commences employment with Parent Buyer or an Affiliate of Buyer at the Closing, and the Parent Subsidiaries), Parent shall(ii) Transferred Subsidiary Business Employee shall become a “Transferred Employee”.
(b) Seller shall use, and shall cause each Parent Subsidiaryof its applicable Affiliates to use, its or their reasonable best efforts to comply with respect to all requirements of applicable Law regarding advance notice, consultation with works councils, labor unions and similar employee representative organizations, as applicablewell as any applicable collective bargaining agreements or similar such agreements pertaining to the Business Employees.
(c) Subject to Buyer and its applicable Affiliates’ obligations pursuant (i) to applicable Law (including but not limited to the TUPE Regulations) or (ii) or any collective bargaining agreement or other agreement with a works council or other employee representative group, tofor the twelve (12) month period following the Closing (the “Continuation Period”), Buyer shall provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and Transferred Employee who remains employed by Parent Buyer or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Employees”) its Affiliates with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, favorable in the aggregate, aggregate than those the compensation and employee benefits being provided by Seller and its Affiliates to such Continuing Transferred Employee immediately prior as of the Closing Date (excluding for such purposes payments made pursuant to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control any retention arrangement or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary payment made upon and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service connection with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement). Notwithstanding the foregoing, nothing contemplated by this Agreement shall be construed as requiring Buyer or its Affiliates to (i) be obligated to continue the Company employment of any Transferred Employee for any period of time after the Closing or (ii) maintain any specific employee benefit plan, arrangement or program, except as may be required by applicable Law.
(d) Buyer shall, or shall cause an Affiliate to, provide to each Transferred Employee who remains employed by Buyer or any Affiliate full credit for such Transferred Employee’s service with any of the Seller Entities or Transferred Subsidiaries, or any of their respective Affiliates prior to the Closing for all purposes, including for purposes of eligibility, vesting, benefit accruals and determination of the level of benefits (including, for purposes of vacation, severance and retirement benefits, but excluding for purposes of long-term service awards and sabbatical program), under any benefit plan in which such Transferred Employee participates on or following the Closing to the same extent recognized by any of the Seller Entities or Transferred Subsidiaries or any of their respective Affiliates immediately prior to the Closing; provided, however, that such service shall not be recognized to the extent not prohibited by that such recognition would result in a duplication of benefits or additional accruals under any defined benefit plan. Buyer shall, or shall cause an Affiliate to: waive any limitation on health and welfare coverage of such Transferred Employees due to pre-existing conditions, waiting periods, active employment requirements, and requirements to show evidence of good health under any applicable Law, (i) provide Parent with health and welfare plan of Buyer or any Affiliate to the extent such Transferred Employees were covered under a copy similar benefit plan of the intended communicationSeller Entities, Transferred Subsidiaries or any of their respective Affiliates and (ii) give Parent a use commercially reasonable period efforts to credit each such Transferred Employee with all deductible payments, co-payments and co-insurance paid by such employee under any benefit plan of time any Seller Entity or Transferred Subsidiary, or any of their respective Affiliates, prior to review and comment on the communication and (iii) consider Closing during the year in which the Closing occurs for the purpose of determining the extent to which any such comments employee has satisfied any applicable deductible and whether such employee has reached the out-of-pocket maximum under any benefit plan of Buyer or any Affiliate for such year, provided that Seller shall have provided to Buyer or an Affiliate of Buyer information in good faith.
(h) During a timely manner sufficient for Buyer to determine the Interim Periodamounts of such payments and, provided further, that in lieu of such credit Buyer shall be permitted to provide to such Transferred Employees payments or benefits having an equivalent value to such payments. Buyer shall recognize and credit, and cause its Affiliates to recognize and credit, the Parent Parties vacation days and paid time off accrued by such Transferred Employees prior to the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8Closing.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement
Employment Matters. (a) During Upon the period commencing Closing Date, the Acquired Companies shall continue to employ all individuals who are employees of any Acquired Company on the Closing and ending on Date, including employees not actively at work due to injury, vacation, military duty, disability or other leave of absence (the date that is twelve (12) months after “Affected Employees“). Until at least December 31, 2007, Buyer shall not reduce any Affected Employee’s base salary or incentive compensation opportunity, each as in effect immediately prior to the Closing Date (provided, however, that the foregoing shall not restrict Buyer’s or if earlierthe Acquired Companies’ ability to choose the form of such incentive compensation opportunity), and shall provide employee benefits and compensation (excluding equity-based benefits and compensation) to Affected Employees that are no less favorable in the date of aggregate (excluding, for this purpose, any compensation arrangements designed for the Continuing Employee’s termination transactions contemplated by this Agreement or the transactions contemplated by the Separation Agreements) than those provided to such persons immediately prior to the Closing Date whether arising under a Company Plan or any Seller Plan. Periods of employment with Parent and the Parent Subsidiaries)any Acquired Company (including, Parent shallwithout limitation, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee any current or former Affiliate of the Company or any Company Subsidiary immediately prior predecessor, to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of extent previously recognized under the Company Merger Effective Time (eachPlans), a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations determining, as applicable, the eligibility for participation, vesting and the calculation of benefits (including severance) of any employee under this Section 7.8(aall employee benefit plans offered by Buyer or an Affiliate of Buyer to the Affected Employees, including vacation plans or arrangements, 401(k) or other retirement plans and any severance or welfare plans (but excluding for purposes of any defined benefit pension plan or post-employment welfare benefit plan). For Buyer shall cause the avoidance Acquired Companies to (i) waive any limitation on medical coverage of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary Affected Employees due to employ any Person, nor shall it alter pre-existing conditions under the at-will employment status applicable medical plan of Buyer to the extent such Affected Employees are currently covered under a medical employee benefit plan of any Continuing EmployeeAcquired Company or their Affiliates and (ii) credit each Affected Employee with all deductible payments and co-payments paid by such employee under the medical employee benefit plan of the Company or its Affiliates prior to the Closing Date during the year in which the Closing occurs for the purpose of determining the extent to which any such employee has satisfied his or her deductible and whether he or she has reached the out-of-pocket maximum under any medical plan of Buyer or an Affiliate of Buyer for such year.
(b) From and after Prior to the Company Merger Effective TimeClosing Date, Parent the Acquired Companies shall withdraw, effective as of the Closing Date, from any Seller Plan in the manner, if any, that such Seller Plan specifies for withdrawal of a participating employer.
(c) Notwithstanding the general provisions of Section 4.2(a), until at least December 31, 2007, Buyer shall, and shall cause its Affiliates to, provide each Parent Subsidiary, as applicable, Affected Employee with severance benefits that are no less favorable than (i) those that would have been provided to honor, in accordance with their terms, all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to employees of the Company or any Company Subsidiary and in effect such Affected Employee immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, Closing Date or (ii) those that may be provided to such service was not recognized Affected Employee under the corresponding Company terms of a severance plan of Buyer or its Affiliates, whichever is more favorable to such Affected Employee Programon the date of termination of employment.
(d) Without limiting The parties hereby agree to take all actions necessary to effectuate the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as provisions set forth in on Section 7.8(d)(i4.2(d) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted ShareLetter.
(e) Parent Seller, Buyer and the Company shall take acknowledge and agree that all provisions contained in this Section 4.2 and Section 4.3 with respect to Affected Employees are included for the actions described in Section 7.8(e) sole benefit of Buyer and the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which not create any Continuing Employee participates that provides health or welfare benefits to right (i) waive all limitations as to preexisting conditionsin any other Person, exclusionsincluding, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Affected Employees, other than limitations applicable under the corresponding Company Employee Program Plans or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied any beneficiary thereof or waived under the comparable Company Employee Program and (ii) honor any paymentsto continued employment with Buyer, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementAffiliates.
Appears in 1 contract
Employment Matters. (a) During Buyer (hereafter sometimes referred to as "Employer") shall, at annual salaries comparable to their current salaries, offer employment to each of Seller's employees (the period "Employees") listed on Schedule 7.2
(a) hereto together with benefits currently provided by Buyer to comparable employees of Buyer (but excluding any severance benefits). Those Employees accepting an offer and commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlier, the date of the Continuing Employee’s termination of employment with Parent Employer are herein referred to as "Transferred Employees." Seller will render reasonable assistance and provide reasonable information to assist Employer in including Transferred Employees on Employer's payroll. Seller shall provide to Buyer copies of all employment records covering the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary as of the Company Merger Effective Time (each, a “Continuing Employee” and collectively, the “Continuing Transferred Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after Seller shall assign to Buyer, effective as of the Company Merger Effective Timedate hereof, Parent shallall insurance policies, and related agreements with respect to welfare plans (as such term is defined under ERISA) of Seller and Seller shall cause each Parent Subsidiaryobtain all necessary consents to such assignments. Seller shall assume, as applicable, retain responsibility for and continue to honorpay, in accordance with their terms, all severance and separation pay the terms of the applicable employer benefit plans, agreements any hospital, medical or other health care, life insurance, short and arrangementslong-term disability, travel accident or other plan benefits and all written employment, severance, retention, incentive, change in control and termination agreements expenses for each Employee or former employee of Seller (including each Transferred Employee) with respect to claims incurred by each such employee or his or her covered dependents prior to or on the date hereof or other costs in respect of any change in control provisions therein) applicable such plan coverage for periods prior to employees or on the date hereof. For purposes of this Section 7.2, any hospital, medical, dental or other health care claim will be deemed incurred when the services giving rise to the claim are performed and any other claim will be deemed incurred when the event that is the basis of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Timeclaim first occurred.
(c) Parent shallSeller shall be liable for any amounts to which any Employee or former Employee becomes entitled under any severance or bonus policy, and shall cause plan, agreement, arrangement or program (whether or not covered by ERISA) maintained by Seller which exists or arises or may be deemed to exist or arise under the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company terms thereof or any Company Subsidiary) for purposes of eligibilityapplicable law, vesting and benefit level under any employee vacationincluding, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not limited to those provided for purposes in severance agreements for certain employees of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee ProgramSeller.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 Buyer shall be treated liable for the amount of any vacation, sick or other compensatory pay owed or which might be owed to any Transferred Employees as set forth in Section 7.8(d)(i) of the Company Disclosure Scheduledate hereof, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to without taking into account the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of transaction contemplated by this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent Buyer shall provide COBRA continuation coverage (as required under IRC Section 4980B(f) and ERISA Sections 601 through 609) for all Employees, including, without limitation, the non-Transferred Employees provided they are listed in Schedule 7.2(e). Seller shall reimburse Buyer for the costs of the COBRA continuation coverage provided to certain non-Transferred Employees at no charge (and Seller shall specify to Buyer which employees are to receive such no charge COBRA continuation coverage and the Company number of months of such coverage). The costs of such coverage shall take equal the actions described dollar value of the claims incurred (as defined in Section 7.8(e7.2(b) hereof), administrative charges with respect thereto and the cost of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health stop-loss coverage or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions similar insurance with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) that were applied toward the deductible and out-of-pocket maximums under the corresponding Company Employee Program in satisfying any applicable deductibles, out-of-pocket maximums or co-payments under a corresponding Parent Employee Program during the calendar year in which the Closing occurscoverage.
(g) Prior to making any broad-based, written communications to the employees of the Company or any Company Subsidiary (other than any communications consistent in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy of the intended communication, (ii) give Parent a reasonable period of time to review and comment on the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shall, and agree to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee of the Company or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cadus Pharmaceutical Corp)
Employment Matters. (a) During the period commencing on the Closing and ending on the date that is twelve (12) months after the Closing (or if earlierSeller shall establish its own group health insurance benefit plan, the date of the Continuing Employee’s termination of employment with Parent and the Parent Subsidiaries), Parent shall, and shall cause each Parent Subsidiary, as applicable, to, provide each individual who is an employee of the Company or any Company Subsidiary immediately prior to the Company Merger Effective Time and who remains employed by Parent or any Parent Subsidiary effective as of the Company Merger Effective Time (eachClosing Date, a “Continuing Employee” and collectively, the “Continuing Employees”) with (i) except as otherwise mutually agreed between Parent and such Continuing Employee, a base salary or base wage rate that is not less than the base salary or base wage rate provided to such Continuing Employee immediately prior to the Closing, (ii) target annual or other short-term periodic cash incentive opportunities that are not less than the target annual or other short-term periodic cash incentive opportunities set forth on Section 7.8(a) of the Company Disclosure Schedule, and (iii) other compensation and employee benefits that are no less favorable, in the aggregate, than those provided to such Continuing Employee immediately prior to the Closing, provided, however, that no post-retirement medical, equity-based compensation, deferred compensation, or retention, change-in-control or other special or non-recurring compensation or benefits provided prior to the Closing shall be taken into account for purposes of Parent’s obligations under this Section 7.8(a). For the avoidance of doubt, nothing in this Agreement shall require Parent or any Parent Subsidiary to employ any Person, nor shall it alter the at-will employment status of any Continuing Employee.
(b) From and after the Company Merger Effective Time, Parent shall, and shall cause each Parent Subsidiary, as applicable, to honor, in accordance with their terms, which all severance and separation pay plans, agreements and arrangements, and all written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) applicable to eligible employees of the Company or any Company Subsidiary and in effect immediately prior to the Company Merger Effective Time.
(c) Parent shall, and shall cause the Parent Subsidiaries to, provide credit for each Continuing Employee’s length of service with the Company and the Company Subsidiaries (as well as service with any predecessor employer of the Company or any Company Subsidiary) for purposes of eligibility, vesting and benefit level under any employee vacation, severance or paid time off benefit plan, program, policy, agreement or arrangement, or any retirement or savings plan, maintained by Parent and the Parent Subsidiaries in which such Continuing Employee is eligible to participate (but not for purposes of any benefit accrual under any defined benefit pension plan) to the same extent that such service was recognized under a similar plan, program, policy, agreement or arrangement of the Company or any Company Subsidiary, except that no such prior service credit will be required or provided to the extent that (i) it results in a duplication of benefits, or (ii) such service was not recognized under the corresponding Company Employee Program.
(d) Without limiting the generality of Section 7.8(a), (i) cash incentive bonuses for calendar year 2023 shall be treated as set forth in Section 7.8(d)(i) of the Company Disclosure Schedule, and (ii) with respect to each Company 2015 Plan Restricted Share that is issued and outstanding as of immediately prior to the Company Merger Effective Time as to which restrictions shall have lapsed as of immediately prior to the Company Merger Effective Time, the right of the holder thereof to any payment in respect of the Change in Control Price (as defined in the Company’s 2015 Award and Option Plan as in effect on the date of this Agreement) that shall not have been satisfied in full through receipt of the Merger Consideration and Fractional Share Consideration in the Merger, if any, shall remain by operation of applicable Law as an obligation of the Surviving Entity and shall be settled in cash (and for the avoidance of doubt, such cash payment, if any, shall be determined in accordance with the formula set forth in Section 7.8(d)(ii) of the Company Disclosure Schedule) no later than five (5) Business Days following the Company Merger Effective Time, without interest and less any applicable withholding or other Taxes or other amounts required by Law to be withheld, in full satisfaction and release of any and all remaining rights with respect to each such Company 2015 Plan Restricted Share.
(e) Parent and the Company shall take the actions described in Section 7.8(e) of the Company Disclosure Schedule.
(f) Parent shall use, and shall cause the Parent Subsidiaries to use, commercially reasonable efforts to cause each Parent Employee Program in which any Continuing Employee participates that provides health or welfare benefits to (i) waive all limitations as to preexisting conditions, exclusions, waiting periods and service conditions with respect to participation and coverage requirements applicable to Continuing Employees, other than limitations applicable under the corresponding Company Employee Program or to the extent that such preexisting condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Employee Program and (ii) honor any payments, charges and expenses of Continuing Employees (and their eligible dependents) of Seller and its Affiliates (other than the Acquired Companies) shall participate as of the Closing Date. Buyer shall cooperate with Seller in Seller's efforts to obtain such group health insurance coverage. In the event that were applied toward Seller cannot obtain such coverage as of the deductible Closing Date, then Buyer shall permit those participants in the PromptCare health insurance benefit plan who are employees of Seller or an Affiliate thereof (other than an Acquired Company), and out-of-pocket maximums the eligible dependents of such employees, to continue to be covered under the corresponding Company Employee Program in satisfying PromptCare health insurance benefit plan until such time as the Seller obtains group health insurance coverage for such employees and dependents (but not more than 18 months), subject to any applicable deductiblesinsurance carrier consent which may be required under the PromptCare group health insurance policy, out-of-pocket maximums or co-payments and provided that Seller shall reimburse Buyer, promptly upon Buyer's request, for the cost of the continued coverage under a corresponding Parent Employee Program during the calendar year in which the Closing occurs.
PromptCare group health insurance policy of all employees (g) Prior to making any broad-based, written communications to the other than employees of the Company Acquired Companies) and their eligible dependents, and shall indemnify Buyer and the Acquired Companies from and against any liability relating to such continued coverage (which indemnity shall not be subject to any basket, deductible or any Company Subsidiary limitation as provided in Section 10.4 above). Except to the extent provided pursuant to the preceding sentence, all employees of Seller and its Affiliates (other than any communications consistent the Acquired Companies), and the dependents of such employees, shall cease participation in all material respects with prior communications made by the Company or Parent) pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall, to the extent not prohibited by applicable Law, (i) provide Parent with a copy PromptCare group health insurance plan as of the intended communication, (iiClosing Date. Seller and Buyer shall cooperate to provide for a spin-off of that portion of Seller's 401(k) give Parent a reasonable period plan which holds the accounts of time to review and comment on current employees of the communication and (iii) consider any such comments in good faith.
(h) During the Interim Period, the Parent Parties and the Company and the Company Subsidiaries shallAcquired Companies, and agree a plan-to-plan transfer of such accounts to cause their applicable Affiliates to, cooperate with each other to accomplish the matters addressed a 401(k) plan established by this Section 7.8.
(i) Nothing in this Section 7.8 shall (i) confer any rights upon any Person, including any Continuing Employee or former employee Buyer as of the Company Closing Date or the Company Subsidiaries, other than the Parties to this Agreement and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or create any right in any Continuing Employee or any other Person to any continued employment or service with or for, or to receive any compensation or benefits from, the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries, (iii) constitute or be treated as an amendment, modification, adoption, suspension or termination of any Company Employee Program or any Parent Employee Program, or (iv) alter or limit the ability of the Company, the Company Subsidiaries, Parent or the Parent Subsidiaries to amend, modify or terminate any benefit plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them, consistent with the terms of such plan, program, policy, agreement or arrangementsoon as practicable thereafter.
Appears in 1 contract
Samples: Stock Purchase Agreement (Allied Healthcare International Inc)
