Employment Offers. Buyer shall make an offer of employment to any Business Employee represented by a labor union and whose terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of employment in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately prior to the Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
Employment Offers. Buyer shall make an offer of employment Prior to any Business Employee represented by a labor union and whose terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”)Effective Time, Buyer shall, or its Affiliate shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of employment in a comparable position toemployment, effective as of 11:59 p.m.the Employee Transfer Time, local time, to substantially all of those Non-Union Employees and Union Employees set forth on Schedule 6.2(a) with salaries and benefits that are substantially the Offer Effective Date, each of such Business Employees, or (ii) same as those enjoyed by current Buyer employees with similar duties and responsibilities. Also prior to the extent Effective Time, Buyer or its Affiliate may interview the Employees set forth on Schedule 6.2(b) for the purpose of determining whether, in Buyer’s sole discretion, Buyer or its Affiliate desires to offer employment to such Employees. Buyer shall have no obligation to offer employment to any Employee set forth on Schedule 6.2(a) or Schedule 6.2(b) that is on Leave at the Effective Time, other than as required by Law. The consummation of any offer shall be subject to compliance with Buyer’s applicable policies, procedures and in accordance with applicable Law, enter into employment agreements with each of such Business Employeesrequirements relating to drug testing and criminal background checks. Those Business Employees, including both Represented All Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with and become employees of Buyer or any as of its Subsidiaries, shall be the Employee Transfer Time pursuant to the offers described in this Section 6.2 are referred to herein as “Transferred Employees.” At the Closing, Buyer Transferred Employees who are Union Employees are also referred to herein as “Union Transferred Employees,” and the Seller Transferred Employees who are Non-Union Employees are referred to herein as “Non-Union Transferred Employees.” Nothing in this Agreement shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at affect Buyer’s cost, have right to change the benefit terms of employment or terminate the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry employment of any Transferred Employee on the operation of the Business from and or after the Closing Datedate he or she becomes Buyer’s employee, with or without cause. In accordance with the Buyer will give each Non-Union Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance each Union Employee no less than seven (7) days in which to the Seller the actual, out-of-pocket expenses to be paid accept or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately prior to the Closing Datereject Buyer’s employment offer.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (NuStar Energy L.P.), Sale and Purchase Agreement (NuStar GP Holdings, LLC)
Employment Offers. Buyer shall Subject to Applicable Law, within 10 days following Newco’s formation pursuant to Section 4.16 (Newco Formation and Preparation), or such other period of time after the date hereof as may be reasonably agreed by Newco, Intel, ST and FP, Newco may make an offer offers of employment to Intel Business Employees (other than any Intel Excluded Employees) and ST Business Employees (other than any ST Excluded Employees), to be effective as of the Closing or on such later date specified in the offer as may reasonably be agreed by Newco, Intel, ST and FP, provided that to the extent permitted by Applicable Law, the offers to any inactive Intel Business Employee represented or ST Business Employee shall be effective on the date such Business Employee returns to active employment. Notwithstanding the foregoing, ST Designated Employees (to the extent employed by ST immediately prior to the Closing) shall automatically transfer to Newco on the Closing (or if such ST Designated Employee is inactive, at such time as specified by Applicable Law). Schedule 4.11(a) of the ST Master Agreement Disclosure Letter sets forth the ST Designated Employees. Notwithstanding anything in this Agreement to the contrary, in no event shall the acceptance of employment by any Intel Business Employee or ST Business Employee be a labor union condition to the Closing. The offers of employment for each such Intel Business Employee (other than Intel Excluded Employees) and whose ST Business Employee (other than ST Excluded Employees) will (i) be subject to requirements of Applicable Law for the jurisdiction in which the Intel Business Employee or ST Business Employee is located and include employment terms reasonably determined by Newco, and (ii) supersede, to the extent permitted by Applicable Law any prior agreements regarding the terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Intel Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the date determined under the ST Business Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of employment as in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately effect prior to the Closing Date; provided, however, that in no event shall any prior agreement with respect to Intellectual Property be superseded, except that unless otherwise agreed by Intel and Newco or ST and Newco, as the case may be, all Intel Transferred Employees and ST Transferred Employees shall be permitted to disclose to Newco all information in their possession or otherwise known by them which is directly related to the Intel Business or ST Business, as applicable, and not related to Patents or Confidential Information of Intel or ST, respectively, in each case, to the extent not an Intel Transferred Asset or ST Transferred Asset. As of the Closing Date, the Intel Transferred Entities shall employ only Intel Transferred Employees, and the ST Transferred Entities shall employ only ST Transferred Employees.
Appears in 2 contracts
Samples: Master Agreement (Intel Corp), Master Agreement (Stmicroelectronics Nv)
Employment Offers. (a) Buyer shall make an offer of employment to any Business Employee represented by a labor union and whose terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Closing Date”), use reasonable best efforts to provide a written offer of employment in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, Closing Date each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Closing Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At ”
(b) Subject to the last sentence of this Section 9.7(b) and except as otherwise expressly provided in this Section 9.7(b), with respect to each Transferred Employee who remains employed by Buyer or any of its Subsidiaries, Buyer shall, or shall cause any of its Subsidiaries to, provide for the period commencing on the Closing Date and ending on the last day of the Sellers’ fiscal year ending in 2020, subject to such Transferred Employee’s continued employment with Buyer or any of its Subsidiaries (as applicable) (i) (A) base salary or hourly wage rate and (B) a target short-term cash incentive opportunity, in each of (A) and (B), that is at least equal to the base salary or wages and target short-term cash incentive opportunity, respectively, provided to such Transferred Employee immediately prior to the Closing Date and (ii) a group health and welfare plan and, subject to and in accordance with Section 9.7(k), a 401(k) plan, qualified under Sections 401(a) and 401(k) of the Code (“401(k) Plan”), that are substantially comparable in the aggregate to the group health and welfare plan and 401(k) Plan under which such Transferred Employee participates as of the date hereof. For the avoidance of doubt, (x) the terms of this Section 9.7(b) shall apply notwithstanding anything to the contrary in any non-solicitation or similar agreement currently entered into by Buyer or any of its Affiliates and Sellers and (y) from and after the date hereof, no such non-solicitation or similar agreement by Buyer and any Seller or any affiliate thereof entered into prior to the date hereof shall prevent Buyer from hiring (or seeking to hire) any employee of Sellers. The Parties agree to cooperate in good faith to coordinate the establishment of benefit plans and arrangements so as to satisfy the obligations set forth in this Section 9.7(b)(ii).
(c) Except as otherwise provided under the terms of the applicable Employee Plan, each Transferred Employee shall be given credit for all service with Sellers under all employee benefit plans, programs and policies and fringe benefits of the Business or Buyer or any of its Subsidiaries in which they become participants (i) for purposes of eligibility, participation, and vesting (but not benefit accruals), and (ii) with respect to any vacation and severance plans, programs or arrangements of Buyer or its Subsidiaries, for purposes of determining the level of benefits except to the extent such crediting would result in duplication of benefits with respect to the same period of service.
(d) If a Transferred Employee becomes eligible to participate in a medical, dental or health plan of Buyer (or its Subsidiaries), Buyer shall, or shall cause its Subsidiaries to, to the extent permitted by (x) applicable Law and (y) the terms of the applicable medical, dental or health plan of Buyer or any of its Subsidiaries in which the Transferred Employee participates following the Closing, Buyer and cause the Seller shall enter into plan provider of such plan to (i) waive any preexisting condition limitations to the Employee Lease Agreement pursuant extent such pre-existing condition limitations would not have been applicable under the applicable medical, dental or health plans of Sellers as of immediately prior to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date and (ii) credit any complete or partial satisfaction of any deductible and out-of-pocket expenses incurred by the Transferred Employee and his or her dependents under the applicable Seller’s or its Subsidiaries’ medical, dental or health plans during the portion of the calendar year in which the Closing Date occurs. Buyer agrees to use commercially reasonable efforts to cause a medical, dental and health plan provider to provide such waivers and credits contemplated by the first (1st) sentence of this Section 9.7(d). If a Transferred Employee becomes eligible to participate in a group term life insurance plan maintained by Buyer or its Subsidiaries, Buyer shall use commercially reasonable efforts to cause such plan to waive any medical certification for such Transferred Employee up to the amount of coverage the Transferred Employee had under the life insurance plan of Sellers (but subject to any limits on the maximum amount of coverage under Buyer’s life insurance plan).
(e) Except as required by Law or an applicable bargaining agreement or as otherwise agreed in writing by the Parties, Buyer or any of its Subsidiaries shall provide severance and other separation benefits to each Transferred Employee terminated by Buyer or any of its Subsidiaries within the period commencing on the Closing Date and ending on the last day of the Sellers’ fiscal year ending in 2020 that are at least equal to the severance and other separation benefits provided by Seller and its Subsidiaries to such Transferred Employee as in effect immediately prior to the Petition Date, it being understood that such severance and other separation benefits do not include any long-term incentive, equity incentive, defined benefit pension or retiree welfare or life insurance benefits.
(f) Except as prohibited by applicable Law, each offer letter shall provide that by accepting employment with Buyer the Business Employee is acknowledging that Buyer is assuming, and Buyer shall assume all vacation days and other paid time off accrued but not yet taken by each Transferred Employee through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation Closing Date, in accordance with their terms as of the Business date hereof. To the extent that applicable Law prohibits a Transferred Employee’s vacation from being assumed by Buyer and requires that a Transferred Employee to be paid for any vacation days and other paid time off accrued but not yet taken by such Transferred Employee as of the Closing Date without regard to any acknowledgement by such Transferred Employee to the contrary, Sellers shall pay each Transferred Employee for such vacation days.
(g) Sellers agree to pay to the Transferred Employees any bonus (including any related payroll Taxes) that such Transferred Employees would have been paid had they remained employees of Sellers through the date the bonus in respect of the fiscal year ending February 2, 2019.
(h) Buyer and Seller agree to cooperate in good faith to ensure that Transferred Employees do not experience a break in health coverage from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance take commercially reasonable efforts to provide or make available the Seller health coverage required by Section 4980B of the actual, out-of-pocket expenses Code available with respect to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services individual who is an “M&A Qualified Beneficiary” (as defined in Treasury Regulation Section 54.49806-9 (Q&A 4) of the Employee Lease AgreementCode) during as the Lease Period result of the consummation of the Transactions.
(i) From and after the Closing Date, subject in all respects to the limitations set forth in Section 2.3(k), Buyer shall, within thirty (30) days following written demand by the Seller, with such supporting documentation as the Buyer shall reasonably request, reimburse the Sellers for the payment of any cash severance or other cash separation pay, and Seller’s portion of any related employment and payroll Taxes, made by any Seller to any employee of any Seller whose employment with any of the Sellers terminated following the Petition Date or terminates on, or following the Closing Date (it being understood that this does not include any Transferred Employees who shall have become the Seller is employees of Buyer and its Subsidiaries and shall be covered by Buyer’s obligations as set forth in Section 9.7(b)), to the same economic position as if extent of the Leased cash severance or other cash separation pay that has been paid on or following the Petition Date and prior to the Closing Date or would have been due and payable had such employee’s employment been terminated by any of the Sellers immediately prior to the date hereof (the reimbursement Liabilities of Buyer set forth in this Section 9.7(i), including with respect to any related employment and payroll Taxes, the “Severance Reimbursement Obligations”).
(j) Sellers shall retain liability for all medical, dental and health claims incurred by Transferred Employees had been hired (and their dependents) under the employee welfare benefit plans of Sellers prior to the Closing. Buyer shall be liable for all medical, dental and health claims incurred by Transferred Employees (and their dependents) under the employee welfare benefit plans of Buyer as or any of its Subsidiaries on or after the Closing. For purposes of this Section 9.7(j), a claim shall be deemed to have been incurred on the avoidance of doubt, during date on which the Lease Period, medical or other treatment or service was rendered and not the Seller and its Subsidiaries shall continue to provide to each date of the Leased Employees compensation and benefits inception of the related illness or injury or the date of submission of a claim related thereto; provided, that claims relating to a hospital confinement that begins on or before the same basis Closing but continues thereafter shall be treated as they were provided incurred before the Closing. Notwithstanding anything herein to such Leased the contrary, with respect to any Business Employee immediately prior who becomes a Transferred Employee following the Closing, any reference in this Section 9.7(j) to the Closing Datewill be deemed to be references to the date such Business Employee becomes a Transferred Employee.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
Employment Offers. After the Effective Date, and with Seller or its Affiliate’s consent (which shall not be unreasonably withheld), each Buyer shall be permitted to interview Seller’s managers during regular business hours (in person or by telephone). At least 21 days prior to the Closing Date (but in no event sooner than November 1, 2009), each of the Buyers shall make offers of employment, effective as of the Closing Date and contingent upon the occurrence of the Closing, to those Current Employees to whom such Buyer has elected to extend an offer offer; provided, however, that for purposes of clarity, it is hereby noted that offers of employment shall not be made to any Business the employees listed on the Excluded Employee represented List. The offers of employment by the Buyers shall be made to not less than the minimum number of Current Employees (excluding Current Employees who are part-time employees as defined in the WARN Act) set forth on Schedule 6.3.2 (the “Minimum Offer Number”), or such greater number as Buyers in their sole discretion elect. The Seller represents to Buyers that the Minimum Offer Number constitutes more than 67% of the employees of the Seller and its Affiliates who must be taken into account in determining whether the transactions contemplated by this Agreement will give rise to or constitute a labor union “mass layoff” or “plant closing” by the Seller and whose its Affiliates for purposes of the WARN Act. The Buyers shall cause all such offers of employment by the Buyers to the Minimum Offer Number of Current Employees to be on terms and conditions of employment are covered such that if the representation by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”)Seller in the immediately preceding sentence regarding the Minimum Offer Number is correct, Buyer no Current Employees shall, as a result of ceasing to be employed by the Seller or shall cause any of its Subsidiaries Affiliates immediately prior to, (i) no later than five (5) days prior on or after the Closing Date or any action contemplated by this Agreement taken by Buyers, be deemed to have been terminated by the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of employment Seller or its Affiliates in a comparable position to, effective “mass layoff” or “plant closing” as defined in the WARN Act for purposes of 11:59 p.m., local time, imposing any obligation or Liability on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer Seller or any of its Subsidiaries, shall be Affiliates under the WARN Act with respect to its Current Employees. The Current Employees to whom either Buyer extends an offer are referred to as the “Transferred Selected Employees.” At Each such offer shall provide that, during the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit portion of the Business Employees’ (the “Leased Employees”) services during the one-year period from beginning on the Closing Date through that the Offer Effective Date (employee continues to be employed by the “Lease Period”) such that Buyer may carry on the operation or an Affiliate of the Business from and after the Closing Date. In accordance with the Employee Lease AgreementBuyer, and for the avoidance of doubt, such Buyer shall timely advance provide the employee with employee benefits on a basis substantially similar to those provided to similarly situated new employees of the Seller the actualBuyer and its Affiliates, but with credit for welfare plan out-of-pocket expenses to be paid or provided by the Seller payments and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately prior service to the Closing Dateextent provided in Sections 6.3.6, 6.3.7, 6.3.8 and 6.3.
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement (Holly Energy Partners Lp), Asset Sale and Purchase Agreement (Holly Corp)
Employment Offers. Subject to Applicable Law, Buyer shall may make an offer offers of employment to any each Business Employee represented to be effective as of the Closing or on such other date as may be agreed by a labor union the Parties. The offers of employment for each such Business Employee to whom Buyer makes an offer will (i) include employment terms that are substantially similar to terms offered to similarly situated employees of Buyer, and whose (ii) supersede any prior agreements with the Seller regarding the terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of employment as in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately effect prior to the Closing Date; provided, however, that in no event shall any prior agreement with respect to Intellectual Property be superseded, except that all Transferred Employees shall be permitted to disclose to Buyer all information in their possession or otherwise known by them that relate directly to the Business and not related to Patents or confidential information of Seller. Buyer shall be responsible for all liabilities, salaries, benefits and similar employer obligations that arise after Closing under Buyer’s compensation and benefit plans and policies for all Transferred Employees or pursuant to Section 2.03(c). In particular, Buyer shall be responsible for liabilities with respect to the termination of any Transferred Employees by Buyer after the Closing, including health care continuation coverage with respect to plans established or maintained by Buyer after the Closing to the extent that the Transferred Employees participate therein, and damages or settlements arising out of any claims of wrongful or illegal termination by Buyer following the Closing, and for complying with the requirements of all Applicable Laws with respect to any such termination by Buyer after the Closing. Seller shall be solely responsible for (i) any Liabilities or obligations with respect to the Business Employees including the Transferred Employees, that arise prior to the Closing, (ii) any liabilities or obligations with respect to any Business Employees who do not become Transferred Employees, and (iii) subject to Section 2.03(c), any liabilities or obligations with respect to Transferred Employees under the Employee Plans or the Employee Agreements that arise following the Closing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Emcore Corp), Asset Purchase Agreement (Emcore Corp)
Employment Offers. Buyer Except as otherwise provided by Section 8.8(b), each of the Business Employees shall make an offer be offered employment by Purchaser no later than November 30, 2009, to be effective as of employment to any the Closing (or, if the Business Employee represented by is on a labor union medical leave of absence and whose terms is receiving benefits under Sellers’ short or long-term disability plans and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts Purchaser would not be able to comply with the requirements of any provide similar disability benefits to such collective bargaining agreement. For any Business Employee not represented by a labor union during the leave of absence, effective from and after the date such Business Employee returns to active employment) (the “Non-Represented EmployeesEmployment Offer”), Buyer shall, or shall cause any which offers may be conditioned upon the occurrence of its Subsidiaries to, the Closing. Business Employees who accept Employment Offers and actually (i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of commence employment in a comparable position to, effective as of 11:59 p.m., local time, with Purchaser on the Offer Effective Closing Date, each of such Business Employees, or (ii) on the Closing Date are on a leave previously approved by a Seller or authorized by applicable law (the “Transitioning Employees”) shall become employees of Purchaser effective on the Closing Date (or, with respect to any Business Employees on a leave of absence, on the date such Business Employee returns to active employment) and their employment with a Seller or any Subsidiaries shall cease on the same date. Except as otherwise provide by Section 8.8(b), each offer of employment shall provide for the Business Employee (to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business EmployeesEmployee becomes a Transitioning Employee), including both Represented Employees to receive compensation and Non-Represented Employees, who accept such offer of employment on or before employee benefits that are in the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, aggregate at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance least substantially comparable to the Seller the actual, out-of-pocket expenses compensation and employee benefits provided to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is similarly situated employees in the same economic position industry and geographic region as if the Leased Employees had been hired by Buyer as Business or that are substantially equivalent, in the aggregate, to the compensation and employee benefits provided to similarly situated employees of Purchaser and its Affiliates. Sellers agree to cooperate in good faith with Purchaser to achieve the acceptance of all of the ClosingEmployment Offers. For Sellers agree to promptly notify Purchaser in the avoidance of doubtevent that, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately prior to the Closing Date, any Business Employee who received an Employment Offer (i) ceases for any reason to be employed by a Seller or any of their respective Subsidiaries, or (ii) notifies a Seller of his or her intention to terminate employment with a Seller or any of their respective Subsidiaries or to reject an Employment Offer.”
Appears in 1 contract
Employment Offers. Buyer shall make an offer of employment Prior to any Business Employee represented by a labor union and whose terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of employment in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with , the Employee Lease Agreement, and for the avoidance Buyer will make offers of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses employment (to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer effective as of the Closing. For ) to all Plant Employees on no less favorable terms and conditions as those provided to the avoidance of doubt, during the Lease Period, Plant Employees by the Seller prior to Closing, which terms and conditions have been disclosed to the Buyer. The Seller will use its Subsidiaries best efforts to encourage such employees to accept the Buyer's offer of employment. This obligation does not require Buyer to continue such terms and conditions for any specific term after the Closing (except as provided by the Union Contract). Buyer shall continue be free to provide act with respect to each Plant Employees hired by Buyer, but any liability relating thereto shall be Buyer's. All obligations of the Leased Employees compensation and benefits on the same basis as they were provided Seller to such Leased employees accrued through the Closing, including obligations for salary, sales commissions, payroll taxes, fringe benefits, and severance pay (for Plant Employees not accepting the Buyer's offer of employment or for any Plant Employee immediately accepting Buyer's offer of employment but who makes a claim for severance pay under Seller's plan with respect to service with the Seller on or prior to the Closing Date), but excluding accrued vacation leave, sick leave or other leave, are the sole obligations of the Seller, to be finally determined and settled by the Seller as of the Closing Date. Vacation, sick leave or other leave accrued for the employment period with Seller prior to the Closing Date, shall be effectively recognized in the employment terms offered by the Buyer, and Seller shall not be obligated to reimburse Buyer for the assumption of such liability and no adjustment to the Purchase Price shall be made in connection therewith. With the exception of the Union Contract which will be assumed by the Buyer, all employment arrangements between the Buyer and the Plant Employees hired by the Buyer will be negotiated directly between such employees and the Buyer. All obligations to any employees of the Seller not accepting the Buyer's offer of employment in accordance with this Section 8.1 shall remain the responsibility of the Seller. The Seller shall be responsible for terminating the employment of its employees who do not resign in connection with their acceptance of 30 37 employment by the Buyer (to the extent termination is required in such circumstance) and for giving any notice of termination. In the case of Union employees, the Seller and Buyer will issue a joint notice of assignment and assumption of the Union Contract. The Seller shall be responsible for the collection of premiums and all related costs of benefits offered by Seller under the continuation of benefits provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), for all Plant Employees and their dependents not kept in the continuous employ of the Seller following Closing. "Transferred Employees" shall mean the Plant Employees who, on or immediately after the Closing Date, become employees of Buyer.
Appears in 1 contract
Employment Offers. Subject in all respects to Section 8.02 with respect to Union Employees:
(i) Except as provided pursuant to Section 8.01(a)(ii), effective as of the Closing Date, Buyer will make (or shall cause its applicable Subsidiary to make) written offers of employment to each Employee, provided that Buyer will not make an offer written offers of employment to any Business Employee represented by a labor union and whose terms and conditions of employment are covered by a collective bargaining agreement on short-term or long-term disability leave (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Leave Employees”). Each such Employee who accepts Buyer’s offer of employment and commences employment with Buyer pursuant to this Section 8.01(a)(i) or pursuant to Section 8.01(a)(ii) is a “Transferred Employee.” If a Leave Employee is released to return to work (if applicable) and such leave ends and such Leave Employee presents themselves for work with Buyer within six months of the Closing Date, Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide make a written offer of employment in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of to such Business Employees, or (ii) to the extent required by Leave Employee at such time and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, Leave Employee who accept accepts such offer of employment shall become a Transferred Employee. Sellers will cooperate with Buyer to encourage each such Employee to accept such employment offer with Buyer.
(ii) No later than four months after Closing, Buyer (A) shall form a Subsidiary under the Laws of China (the “China Subsidiary”) and shall cause such China Subsidiary to make a written offer of employment to the Employee set forth on or before Schedule 8.01(a)(ii)(A) on substantially the same terms and conditions set forth in the Agreement on Employee Transfer and form of Employment Agreement set forth as an exhibit thereto, each of which is attached as Exhibit K (the “China Employee Transfer Agreements”), (B) shall form a Subsidiary under the Laws of Malaysia (the “Malaysia Subsidiary”) and shall cause such Malaysia Subsidiary to make a written offer of employment to the 48 Employee set forth on Schedule 8.01(a)(ii)(B) on substantially the same terms and conditions set forth in the Agreement on Employee Transfer and form of Offer Effective of Employment and Terms and Conditions of Employment set forth as an exhibit thereto, each of which is attached as Exhibit L (the “Malaysia Employee Transfer Agreements”), (C) shall satisfy the requirements of the applicable Mexico Governmental Authorities that are required under the Laws of Mexico for Buyer Mexico to employ each of the Employees set forth on Schedule 8.01(a)(ii)(C) and shall cause Buyer Mexico to make written offers of employment to the Employees set forth on Schedule 8.01(a)(ii)(C) on substantially the same terms and conditions set forth in the Agreement on Employee Transfer, Employment Agreements and Resignations and Releases set forth as an exhibit thereto, each of which is attached as Exhibit M (the “Mexico Employee Transfer Agreements”), and (D) shall form a branch office of Buyer UK under the Laws of Belgium (the “Belgium Branch Office”) and shall cause such Belgium Branch Office to employ the Employee set forth on Schedule 8.01(a)(ii)(D). The employee employed by Ferro Belgium is listed on Schedule 8.01(a)(ii)(D) (“Transferring Belgium Employee”). The employment contract of the Transferring Belgium Employee is transferred to Buyer UK, as of the Closing Date in accordance with the provisions Belgium Collective Bargaining Agreement n° 32bis of June 7, 1985 and accordingly: (A) the employment contract between Ferro Belgium and the Transferring Belgium Employee will transfer to Buyer UK with effect from the Closing Date pursuant to Belgian Collective Bargaining Agreement n° 32bis of June 7, 1985 and (B) all wages, salaries, bonuses and other benefits (including accrued rights for double holiday pay, rights with respect to holidays not taken up and thirteenth month pay) of the Transferring Belgium Employee set forth on Schedule 8.01(a)(ii)(D) and all withholding tax deductions and social security contributions relating thereto will be discharged by Ferro Belgium in respect of the period up to the Closing Date and by Buyer UK thereafter. If any of the China Employee Transfer Agreement, the Malaysia Employee Transfer Agreement or the Mexico Employee Transfer Agreement are not executed by the parties thereto prior to the Closing, then Buyer and Ferro shall each use its commercially reasonable efforts to get such agreements in the form attached signed by the respective Employees as promptly as practicable after the Closing. Ferro agrees to pay any severance or termination costs due to the respective Employee in connection with the execution of such offer and continue employment with agreements. In the event that Buyer fails to, or fails to cause its applicable Subsidiaries to, employ any Employee identified on Schedules 8.01(a)(ii)(A) – (D) within four months after Closing as contemplated by this Section 8.01(a)(ii), then Ferro may, in its sole discretion, either (x) retain such Employee as an Employee of Ferro or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer Subsidiaries or (y) terminate such Employee’s employment with Ferro (or its applicable Subsidiary) and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller indemnify Ferro and its Subsidiaries for wages any and all liabilities incurred by Ferro or its Subsidiaries as a result of the termination of such Employee.
(iii) Each offer of employment contemplated by Section 8.01(a)(i) and Section 8.01(a)(ii) will provide that, for a period of 12 months after the Closing Date (or, in the case of offers of employment contemplated by Section 49
8.01 (a)(ii), for a period of 12 months after the Employee’s commencement of employment with Buyer’s Subsidiary), the Employee (other than Union Employees) receiving such offer will be entitled to receive, in each case as applicable, (A) a base salary or hourly base wage rate at least equal to the base salary or hourly base wage rate in effect for such Employee immediately prior to the Closing; (B) employee benefits associated with the Leased Employees during the Lease Period (including vacation and any other liabilities attributable to Leased Employees defined contribution plan benefits but excluding defined benefit plan benefits, retiree welfare benefits and equity-based benefits or compensation) that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined substantially similar in the Employee Lease Agreementaggregate to the employee benefits (including vacation and defined contribution plan benefits but excluding any defined benefit plan benefits, retiree welfare benefits or equity-based benefits or compensation) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided made available to such Leased Employee by Sellers and their respective Affiliates immediately prior to the Closing Date. For the Transferring Belgium Employee, the employment contract will be automatically transferred to the Buyer UK at the Closing Date, and no offer of employment will be sent to that employee.
Appears in 1 contract
Employment Offers. Buyer The employees of Seller as set forth in Schedule 6.6 (the “Specified Employee”) shall make an offer of continue to be employed by Seller at the Closing. At the Closing, each Specified Employee shall be offered employment to any Business Employee represented by a labor union and whose Lantiq US, with terms and conditions of employment employment, including base compensation, bonus opportunity and benefits, that are covered substantially comparable in the aggregate to those provided by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts Seller to comply with the requirements of any such collective bargaining agreement. For any Business Specified Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days immediately prior to the date determined under Closing (but not including any equity-based compensation); provided that nothing in this Agreement shall limit the ability of Lantiq US (or one of its Affiliates) to reduce the rate of compensation or benefits, or terminate the employment, of any Specified Employee Lease Agreement (following acceptance of such offer. Effective on the “Offer Effective Closing Date”), use reasonable best efforts to provide a written Seller shall terminate and Lantiq US shall hire each Specified Employee who accepts such offer of employment in a comparable position to, effective as from Lantiq US or one of 11:59 p.m., local time, on its Affiliates. Seller hereby consents to Lantiq US (or one of its Affiliates) contacting each Specified Employee with respect to the Offer Effective Date, each desire of such Business Employees, employee to enter the employ of Lantiq US (or (iione of its Affiliates) and Seller shall cooperate in good faith with and use its commercially reasonable efforts to the extent required by and in accordance with applicable Law, enter into employment agreements with each of assist Lantiq US to cause such Business Employees. Those Business Employees, including both Represented Specified Employees and Non-Represented Employees, who to accept such offer of employment on or before the Offer Effective Date in accordance with the provisions employment. Specified Employees will receive credit for such employees’ period of such offer and continue employment with Buyer Seller for purposes of calculating future accruals under any vacation program and for purposes of determining severance pay under any applicable severance plan of Lantiq US; provided that Lantiq US shall not assume any Liability for any retention, severance, change-of-control or similar agreements between Seller or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer Affiliates and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit any of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation Specified Employees in effect as of the Business from and after the Closing Date, and Seller shall retain Liability for all obligations under any such retention, severance, change-of-control or similar agreements. In accordance with Notwithstanding anything to the Employee Lease Agreementcontrary set forth herein, and for the avoidance of doubt, Buyer Seller shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller also remain solely liable and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide pay to each Specified Employee any and all wages, salaries, vacation pay and compensation of the Leased Employees compensation and benefits any kind payable to any Specified Employee for any period ending on the same basis as they were provided to such Leased Employee immediately or prior to the Closing Date. Furthermore, Seller shall process final payroll payments to Specified Employees with respect to the payroll period in which the Closing Date occurs and such payments shall include all compensation and vacation pay that is earned but unpaid as of the Closing Date and during the entire payroll period in which the Closing Date occurs and shall be made on or as soon as reasonably practicable following the Closing Date; provided that Purchaser shall reimburse Seller within five (5) business days of receipt of an invoice from Seller for the portion of such payments relating solely to compensation earned during post-Closing periods, the employer’s portion of payroll taxes on such post-Closing compensation (e.g., FICA) and employer matching contributions on the portion of such post-Closing compensation that is deferred under Seller’s 401(k) plan. Seller shall deliver to Lantiq US as soon as reasonably practicable after the Closing Date all personnel files and employment records relating to the Specified Employees who accept employment offers from Lantiq US, provided that Seller may retain one copy of such files and records for applicable legally-required document retention purposes.
Appears in 1 contract
Employment Offers. Buyer (a) As soon as practicable after the execution of this Formation Agreement, NTI shall have the opportunity to make an offer of presentations regarding potential future employment to any Business Employee represented by a labor union with NTE, SPP Refining, NT Retail and whose terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior NT Bakery to the date determined under the Employee Lease Agreement (the “Offer Effective Date”)Employees as a group as well as individually, use reasonable best efforts to provide a written offer of employment in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and all in accordance with applicable Lawa protocol to be agreed upon between MPC, enter into employment agreements SSA and NTI, and with each of such Business Employees. Those Business Employees, including both respect to Active Represented Employees and Non-Represented Employeescovered by the CBAs, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions CBAs and, in any case, with applicable federal and state labor law.
(b) As of such offer the Closing Date, those Employees supplying operational services at the various Assets’ and continue Businesses’ locations will remain as employees of MPC, SSA or SuperMom’s, as applicable, pursuant to the Services Agreement, until the applicable Employee Transfer Date. Each “Employee Transfer Date” shall be determined in the following manner: an Employee Transfer Date shall be any date(s) on or after Closing on which NTI elects to transfer one of the designated group(s) of Acquired Employees to employment with Buyer an NT Entity, provided that the process described below with respect to any such group(s) of Acquired Employees (as defined below) has been completed. To ensure the integrity of MPC, SSA and SuperMom’s secure systems, NTI shall deliver a written notice to MPC or SSA, as applicable, at least twenty (20) Business Days prior to a proposed Employee Transfer Date setting forth its reasonable, good faith belief that the security-related and other conditions for such Acquired Employees’ transfer, as set forth in Schedule 6.1(b)(ii), have been satisfied (a “Security Completion Statement”). On or prior to the tenth Business Day following receipt of a Security Completion Statement by MPC or SSA, such entity shall deliver to NTI either a notice indicating that it accepts NTI’s Security Completion Statement or a written statement specifying those items with which it disagrees in such Security Completion Statement (a “Security Completion Objection Notice”). If MPC or SSA delivers a Security Completion Objection Notice or fails to timely agree to the Security Completion Statement, MPC, SSA and NTI shall consult in good faith and use Commercially Reasonable Efforts to resolve any objections contained therein. If such objections cannot be resolved pursuant to this paragraph, the Employee Transfer Date for the designated group(s) of Employees may occur either on the Employee Transfer Date initially proposed by NTI or a date thereafter that NTI selects; provided, that, if the applicable NT Entity proceeds with such transfer, MPC or SSA, as applicable, may without liability to NTE or its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement including any liability pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Services Agreement, and for terminate effective as of such Employee Transfer Date the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Transition Services (designated as defined being adversely effected in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the ClosingSecurity Completion Objection Notice. For the avoidance of doubt, during the Lease PeriodParties acknowledge that the Employee Transfer Date may be different for certain Employee groups, but not for Employees within the Seller same Employee group provided, however, that the transfer of Employees in certain employee groups (including Employees in departments such as accounting, finance and procurement) may be delayed to assist in the maintenance of the integrity of MPC, SSA and SuperMom’s secure systems. On or about forty-five (45) days prior to each of NTI’s proposed Employee Transfer Date(s), NTI will provide written notice of the proposed Employee Transfer Date to MPC, SSA and SuperMom’s. (The parties hereto understand and agree that such notice shall be without prejudice to the process described above for setting the actual Employee Transfer Date.) Within five (5) Business Days of receipt of such notice, MPC or SSA shall provide NTE with an updated list of Employees that includes the information, as of the date of delivery of such list, described in Section 4.22(a) of the Refining Contribution Agreement, Section 4.17(a) of the Marketing Contribution Agreement and Section 4.13(a) of the SuperMom’s Contribution Agreement. In accordance with the CBAs and, in any case, with applicable federal and state labor law, no later than thirty (30) days prior to the applicable proposed Employee Transfer Date, NTE or its Subsidiaries shall offer employment, effective as of the applicable Employee Transfer Date, to all Active Represented Employees who are not on a leave approved by MPC, SSA or their Affiliates (a “Company-Approved Leave”) as of the date that NTE or its Subsidiaries makes such offers. Active Represented Employees who, as of the date offers are made, are on Company-Approved Leave that has or is expected to continue to provide for at least one hundred eighty (180) days from the first day of such leave shall not become employees of NTE or its Subsidiaries. NTE or its Subsidiaries shall offer employment to each Active Represented Employee who, as of the Leased Employees compensation date such offers are made, is on Company-Approved Leave that is expected to continue for less than one hundred and benefits on eighty (180) days from the same basis first day of such leave, provided that MPC provides NTE with adequate assurance, as they were provided reasonably determined by NTE, that such employee will return from leave within one hundred eighty (180) days of the first day of such employee’s leave while employed by MPC, SSA or their Affiliates. With respect to such Leased Employee immediately any other Employees, no later than thirty (30) days prior to the Closing applicable proposed Employee Transfer Date., NTE or its Subsidiaries shall offer employment to such Employees who meet NTE’s minimum hiring requirements and who are not on Company-Approved Leave as of the date that NTE or its Subsidiaries makes such offers. Such other Employees who, as of the date offers are made, are on Company-Approved Leave that has or is expected to continue for at least six (6) months from the first day of such leave shall not become employees of NTE or its Subsidiaries. NTE or its Subsidiaries shall offer employment to each such other Employee who meets NTE’s minimum hiring requirements and who, as of the date such offers are made, is on Company-Approved Leave that is expected to continue for less than six (6) months from the first day of such leave, provided that MPC provides NTE with adequate assurance, as reasonably determined by NTE, that such employee will return from leave within six months of the first day of such employee’s leave while employed by MPC, SSA or their Affiliates. For the avoidance of doubt, any Employee who does not receive an offer of employment pursuant to this Section
Appears in 1 contract
Employment Offers. Buyer The Purchaser shall (or shall cause an Affiliate to) make an offer of employment to any each IM Seller Entity Employee who is not a Non-Continuing IM Business Employee represented by a labor union and whose terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days Business Days prior to the date determined under Closing Date; provided that, to the Employee Lease Agreement extent such offer provides for terms and conditions of employment, such terms and conditions shall not be inconsistent with Section 4.09(e). The Purchaser may (or may cause an Affiliate to), with respect to each individual listed on Schedule 4.09(c) of the Seller Disclosure Schedules (each, an “Offer Effective DateIM Corporate Service Employee”), use reasonable best efforts to provide a written designate such IM Corporate Service Employee for transfer and make an offer of employment in a comparable position toto such IM Corporate Service Employee no later than five (5) Business Days prior to the Closing Date; provided that, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by such offer provides for terms and in accordance conditions of employment, such terms and conditions shall not be inconsistent with applicable Law, enter into employment agreements with each of such Business EmployeesSection 4.09(e). Those Business Employees, including both Represented Employees Each IM Seller Entity Employee and Non-Represented Employees, IM Corporate Service Employee who accept accepts such offer of employment on from Purchaser or before the Offer Effective Date in accordance its Affiliate and commences such employment is referred to herein as a “Transferred Employee” (and, together with the provisions Continuing IM Business Employees, the “Continuing Employees”). Notwithstanding the foregoing, any IM Seller Entity Employee who is not a Non-Continuing IM Business Employee and who is on a leave of such offer and continue absence (other than long-term disability) from employment with Buyer or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from Entity on the Closing Date through the Offer Effective Date (the each, an “Lease PeriodInactive Employee”) shall remain an employee of such that Buyer may carry on the operation of the Business from and Seller Entity immediately after the Closing Date. In accordance with and, upon such employee’s return to active employment within 180 days after the Employee Lease Agreementcommencement of such leave, and for the avoidance Purchaser shall, or shall cause its Affiliates to, make an offer of doubtemployment to such employee; provided that, Buyer shall timely advance to the Seller the actualextent such offer provides for terms and conditions of employment, out-of-pocket expenses to such terms and conditions shall not be paid inconsistent with Section 4.09(e). Any such Inactive Employee who accepts such offer of employment shall become a Transferred Employee and a Continuing Employee upon such employee’s commencement of employment with Purchaser or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the ClosingAffiliate. For the avoidance of doubt, during the Lease Period, the Seller and shall retain all liabilities with respect to any (i) Inactive Employee who does not return to active employment within 180 days after the commencement of such employee’s leave of absence, (ii) Inactive Employee who returns to active employment within such 180 days but who either does not receive an offer of employment from Purchaser (or its Subsidiaries shall continue to provide to each applicable Affiliate) or who does not accept an offer of the Leased Employees compensation and benefits employment from Purchaser (or its applicable Affiliate) or who accepts such offer but does not commence such employment or (iii) IM Seller Entity Employee who is on the same basis as they were provided to such Leased Employee immediately prior to long-term disability on the Closing Date.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Convergys Corp)
Employment Offers. Following the Effective Date, the Buyer shall be permitted to interview Seller’s managers during regular business hours (in person or by telephone). At least three (3) weeks prior to the Closing Date, the Buyer shall make an offer offers of employment, effective as of the Closing Date and contingent upon the occurrence of the Closing, to all Current Employees (for purposes of clarity, it is hereby noted that offers of employment shall not be made to any Business Employee represented Buyer Identified Employees pursuant to Section 6.5.1) at a base salary or base wage which is at least eighty percent (80%) of the base salary or base wages provided by a labor union the Seller as of the date of this Agreement (and whose terms and conditions the Seller shall not increase wages after the execution of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply this Agreement except in connection with the requirements Seller’s existing past practice of any annual reviews and salary adjustments provided no such collective bargaining agreementadjustment of more than 3% shall be made without the prior consent of the Buyer, which consent shall not be unreasonably withheld, delayed or conditioned). For any Business The Buyer will give each Current Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later less than five (5) days in which to accept or reject the Buyer’s employment offer. The Buyer will provide the Seller with a list at least three (3) Business Days prior to the Closing Date, which shall contain as of that date determined under the names of the Current Employees the Buyer made offers of employment to, a certification that the offer to each Current Employee Lease Agreement was at least eighty percent (80%) of the Current Employee’s base salary or wage with Seller, and whether the Current Employee accepted the offer. Any Current Employee who accepts the Buyer’s offer of employment and on the Closing Date is (a) actively at work or (b) on a holiday, scheduled day off pursuant to his or her regular schedule, or a vacation authorized prior to the Closing Date by the Seller and returns to work as scheduled shall become or be deemed employed by the Buyer as of the Closing Date (the “Offer Effective Employment Date”), use reasonable best efforts to provide a written . Any Current Employee who accepts the Buyer’s offer of employment in and on the Closing Date is on a comparable position leave of absence or short-term disability leave consistent with the Seller’s established policies and practices which was authorized by the Seller prior to the Closing Date, including any FMLA leave or military leave, and returns to work at the end of such authorized leave, which shall not be longer than six (6) months after the Closing Date, unless applicable Law gives the Current Employee a longer period for returning to work, shall become employed by the Buyer as of the date of his or her return to work with such date being deemed the Employment Date for such employee; provided that any such Current Employee shall be required to comply with the Buyer’s return-to-work policies and practices, including, but not limited to, effective as any requirement that the employee establish he or she is able to perform the essential functions of 11:59 p.m.the position, local time, on with or without reasonable accommodation. Each Current Employee who becomes employed by the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to herein as a “Transferred EmployeesContinuing Employee.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance be entitled post-Closing to the Seller the actual, out-of-pocket expenses offer employment to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Dedicated Employee Services (as defined in the Employee Lease Transition Services Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately prior to the Closing Date).
Appears in 1 contract
Employment Offers. Buyer (a) Buyers or a designated Subsidiary of Buyers shall make an offer of employment or service to any each Business Employee represented disclosed on Section 5.22(d) of the Seller Disclosure Schedule (other than Business Employees employed by a labor union and whose terms and conditions of employment are covered Transferred Subsidiaries, who shall remain employed by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”Transferred Subsidiaries), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days as updated by the Parties prior to the date determined under Closing Date in accordance with Section 8.4(b): (x) who is actively employed on the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts Closing Date or who is temporarily absent from active employment due to provide a written offer of employment in a comparable position tovacation or paid time off, effective as of 11:59 p.m., local time, on the Offer Effective Closing Date, each of such Business Employees, or (iiy) who is temporarily absent from active employment due to disability or military leave on the extent required by and in accordance with applicable LawClosing Date, enter into employment agreements with each upon termination of such Business temporary absence within six (6) months following the Closing Date, provided that such individual is able to perform the essential functions of the position (with or without reasonable accommodation) he or she previously held with Seller (or a Subsidiary of Seller) prior to such absence (the “Offered Employees”). Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer employment or service from Buyers or one of their Subsidiaries pursuant to the offers of employment on or before the Offer Effective Date in accordance service made pursuant to this Section 9.1(a) and commence employment or service with the provisions Buyers or one of such offer and continue employment with Buyer or any of its Subsidiaries, their Subsidiaries shall be referred to herein collectively as “Transferred Employees.” At the Closing, Buyer and the ”. Seller shall enter into the Employee Lease Agreement pursuant provide all reasonable assistance to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from Buyers and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its their Subsidiaries in connection with the Employee Services offers of employment or service to the Offered Employees contemplated by this Section 9.1.
(as defined in the Employee Lease Agreementb) during the Lease Period such that the Seller is in the same economic position as if the Leased The offer of employment provided under Section 9.1(a) to Offered Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees for compensation and benefits on that, taken as a whole, have a value that is substantially comparable in the same basis as they were aggregate to the compensation and benefits provided to similarly-situated employees of Buyer Parent and its Subsidiaries, or provided to such Leased Offered Employee immediately prior to the Closing DateClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Greenbrier Companies Inc)
Employment Offers. No later than thirty (30) days following the end of the Designation Rights Period, the Buyer shall make an offer employment to a minimum of five hundred (500) employees of the Sellers, as selected by the Buyer in its sole discretion (the “Hire Employees”), which offers shall (i) provide for compensation (including base salary and incentive bonus opportunities) substantially comparable in the aggregate to the compensation provided by Buyer to a similarly situated employee of Buyer having similar characteristics to such Hire Employee and (ii) provide for employee benefits that are substantially comparable in the aggregate to the employee benefits provided by Buyer to a similarly situated employee of Buyer having similar characteristics to such Hire Employee; provided that, in each case, Hire Employees shall not receive credit for employment tenure with Sellers. Sellers shall cooperate with Buyer by facilitating communications with any employees as may be reasonably requested by Buyer in connection with any such offer of employment. Notwithstanding anything herein to the contrary, Buyer’s offer of employment to any Business particular employee may, at the option of Buyer acting in its sole discretion, be conditioned upon such individual satisfying reasonable pre- employment screening (e.g., background checks, drug testing, etc.). Each Hire Employee represented by a labor union and whose terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of employment in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue accepts employment with Buyer or any of its Subsidiaries, shall be referred to herein as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during (i) the Lease Periodterms of this Section 9.6 shall apply notwithstanding anything to the contrary in any non-solicitation or similar agreement currently entered into by Buyer and Sellers and (ii) from and after the date hereof, the no such non-solicitation or similar agreement by Buyer and any Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately or any affiliate thereof entered into prior to the Closing Datedate hereof shall prevent Buyer from hiring (or seeking to hire) any employee of Sellers.
Appears in 1 contract
Samples: Asset Purchase Agreement
Employment Offers. (i) Subject to Applicable Law, Buyer shall make an offer offers of employment to any each Business Employee represented who is not an Excluded Employee to be effective as of the Closing. The offers of employment for each such Business Employee who is not an Excluded Employee will (i) subject to requirements of Applicable Law for the jurisdiction in which the Business Employee is located, include employment terms reasonably determined by a labor union Buyer but that, in all events, are substantially similar to and whose at least as favorable to such Business Employee as his or her existing cash compensation, and also at least as favorable with respect to his or her equity compensation, and including participation in all compensation and benefit programs made available to similarly situated employees of Buyer at levels which are in the aggregate substantially equivalent to the value of their compensation and benefits under Seller’s programs, and (ii) supersede any prior agreements regarding the terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of employment as in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately effect prior to the Closing Date. Notwithstanding the previous sentence, in no event shall any prior agreement with respect to Intellectual Property be superseded, except that all Transferred Employees shall be permitted to disclose to Buyer all information in their possession or otherwise known by them which is directly related to the Transferred Assets and Assumed Liabilities after the Closing, but not related to the Excluded Assets or other confidential information of Seller. For purposes of clarification, prior to the Closing, Buyer shall not cause any Business Employee to disclose to Buyer confidential information related to the Business, except as permitted by Seller.
(ii) To the greatest extent permitted by Applicable Law, Buyer shall provide service credit for all periods of service by the Transferred Employees under Buyer’s employee policies and plans except to the extent such service credit would result in the duplication of benefit accrual for the same period of service. Buyer shall be responsible for all Liabilities, salaries, benefits and similar employer obligations that arise after Closing under Buyer’s compensation and benefit plans and policies for all Transferred Employees or pursuant to Section 2.03(d) and as may be agreed by the Parties pursuant to Section 2.05(c). In particular, Buyer shall be responsible for Liabilities with respect to the termination of any Transferred Employees by Buyer after the Closing, including health care continuation coverage with respect to plans established or maintained by Buyer after the Closing to the extent that the Transferred Employees participate therein, and damages or settlements arising out of any claims of wrongful or illegal termination by Buyer following the Closing, and for complying with the requirements of all Applicable Laws with respect to any such termination by Buyer after the Closing.
(iii) Except with respect to Transferred Employees who are employees of the Transferred Sub, subject to Applicable Law, Seller shall be solely responsible for (i) any liabilities or obligations with respect to the Business Employees including the Transferred Employees, that arise prior to the Closing, (ii) any liabilities or obligations with respect to any Business Employees who do not become Transferred Employees, and (iii) subject to Section 2.03(d), any liabilities or obligations with respect to Transferred Employees under the Employee Plans or the Employee Agreements that arise following the Closing.
(iv) Subject to Applicable Law, Seller shall permit the Transferred Employees who are participants in Seller’s SERP Profit Sharing Plan and 401(k) Plan to make direct “roll-overs” of their plan accounts to a designated Buyer tax qualified retirement plan.
(v) With respect to Transferred Employees who are employees of the Transferred Sub, subject to Applicable Law, Buyer shall provide continuity of comparable benefits coverage for such Transferred Employees, including contributions to existing employee accounts or to accounts established by Buyer. Seller and Buyer shall cooperate to identify all amounts relating to accrued benefits under Employee Plans that are held by third parties, such as insurance companies and pension funds. To the extent that such amounts held by third parties are less than the Liabilities of the Employee Plans to which they relate for such Transferred Employees, Seller shall identify and obtain an alternative funding mechanism for such Liabilities in compliance with
Appears in 1 contract
Samples: Asset Purchase Agreement (Marvell Technology Group LTD)
Employment Offers. Buyer ServCo shall make give priority in hiring to any Owner Employees who meet Operator’s stated requirements for employment as set forth in Annex IV (Operator Employment Requirements) over other equally qualified and equally evaluated applicants for the same job category that are not Owner Employees, it being understood that (i) ServCo shall not be required to hire all or substantially all of the Owner Employees and (ii) the determination of which Owner Employees to hire shall be made by ServCo in ServCo’s sole discretion, acting in good faith. Each Owner Employee who accepts an offer of employment with ServCo pursuant to this Section 4.2(k) (ManagementCo Responsibilities – Employment Offers) shall be referred to as a “Hired Former Employee of Owner.” On the Service Commencement Date and during the Term, ServCo shall employ such other employees, including any Business Employee represented by a labor union and whose employees of Operator or any of its Affiliates as of the Effective Date hired for the operation of the T&D System (“Other Employees” and, together with the Hired Former Employees of Owner, the “ServCo Employees”), as are necessary to provide the O&M Services. The following initial terms and conditions of employment are covered by a collective bargaining agreement (“Represented shall apply to the Hired Former Employees of Owner, but not to any Other Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, :
(i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer Offers of employment in shall remain open for a comparable position to, effective as period of 11:59 p.m., local time, on ten (10) Business Days. Any such offer which is accepted within such ten (10) Business Day period shall thereafter be irrevocable until the Offer Effective Service Commencement Date, each of such Business Employees, or .
(ii) Offers of employment shall provide for employment with ServCo on terms and conditions that are set at ServCo’s sole discretion, but shall in all cases provide for
(A) a base salary or regular hourly wage rate at least equal to the extent required base salary or wage rate provided by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on Owner or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to Affiliates (as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”applicable) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Owner Employee immediately prior to the Closing DateService Commencement Date and (B) the employee fringe benefits established in Act 26, and (C) any other benefits required to be offered to Owner Employees pursuant to Act 120, as any such benefits may have been restricted, conditioned, modified or annulled by Act 3, Act 26 and Act 66.
Appears in 1 contract
Samples: Transmission and Distribution System Operation and Maintenance Agreement
Employment Offers. Buyer shall make an (a) Subject to Section 1.5(b), Purchaser shall, not more than fifteen (15) days after the date hereof, offer to employ, on and after the Closing Date, the employees of employment to any Seller in the Business Employee represented designated in writing by a labor union and whose the Purchaser on terms and conditions of employment are covered by substantially equivalent, taken as a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”)whole, Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the terms and conditions relating to their employment on the date determined under hereof. From the Employee Lease Agreement (date hereof to the “Offer Effective Closing Date”), use reasonable best efforts Seller shall encourage employees of the Business to provide a written accept any offer of employment made by Purchaser and shall not take any action to offer employees of the Business alternate employment with Seller. Purchaser shall pay any severance liability or obligation ("Employee Severance") of Seller, pursuant to Seller's employee severance policies attached as Schedule 1.5, for any employee of Seller in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such whom an offer of employment on is not made by Purchaser pursuant to this Agreement or before to any employee of Seller in the Offer Effective Date Business who does not accept Purchaser's offer of employment.
(b) Notwithstanding Section 1.5(a), the Contracts of employment of the employees of Seller and it Subsidiaries in the Business located in the United Kingdom (the "U.K. Employees") shall not be terminated by Seller or Purchaser in connection with the sale and purchase under this Agreement but shall continue to have effect as if originally made between the U.K. Employees and Purchaser in accordance with the provisions United Kingdom Transfer of such offer and continue employment with Buyer Undertakings (Protection of Employment) Regulations 1981. Seller shall not become or be liable in respect of any Claim that is or may be made for wrongful dismissal or unfair dismissal or redundancy or otherwise by the U.K. Employees or any of its Subsidiariesthem ("U.K. Employee Claims"). In addition, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit not become or be liable in respect of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such any Claim that Buyer is or may carry on the operation be made for wrongful dismissal or unfair dismissal or redundancy or otherwise by any employees of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection the Business located in Australia ("Australian Employee") or any of them ("Australian Employee Claims").
(c) Seller undertakes to Purchaser to comply in all respects with Seller's obligations to inform and consult with any U.K. Employees, pursuant to the Employee Services Transfer of Undertaking (as defined in Protection of Employees) Regulation 1981, effected by the Employee Lease Agreement) during the Lease Period transaction contemplated hereby and to provide Purchaser with such information that the Seller is Purchaser may request in the same economic position as if the Leased Employees had been hired by Buyer as of the Closingwriting in order to verify such compliance. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue Purchaser agrees to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately prior Seller any information which Seller may reasonably request relating to the Closing Datebusiness of Purchaser to enable Seller to fulfill such obligations.
Appears in 1 contract
Samples: Asset Purchase Agreement (Information Management Associates Inc)
Employment Offers. The Buyer shall have the right, but not the obligation, to screen, which includes the right to review employment files provided that the Buyer must first provide to the Sellers or their Affiliates a signed release from the Current Employee authorizing the Sellers or their Affiliates to disclose such employment files to the Buyer, interview, test, and offer employment to such of the Current Employees as the Buyer, in its sole discretion, shall select. Any Current Employee who fails to provide a signed release authorizing the disclosure of their employment files to the Buyer will not be considered for employment by the Buyer. The Buyer will evaluate and make an offer hiring decisions with respect to the Current Employees in a legal manner and will indemnify the Sellers or their Affiliates with respect to any claims or causes of action stemming from or related to such hiring decisions. During regular business hours or at such other times as the Parties shall agree upon, the Sellers or their Affiliates shall grant the Buyer such access to their facilities as the Buyer shall need to conduct its screening, testing and interviewing. The Sellers or their Affiliate shall not take any steps which would preclude the Buyer from interviewing, testing, screening or employing any Current Employee or which would make it more difficult or costly for the Buyer to do so. Without the Buyer’s consent, neither the Sellers nor their Affiliates shall make or publish any statements directly or indirectly to any Current Employee concerning the possibility of employment to any Business Employee represented by a labor union and whose with the Buyer, the terms and conditions of any such employment, the compensation and benefits associated with any offer of employment are covered by a collective bargaining agreement that the Buyer may make, or the future staffing needs of the Buyer. During the period between the date hereof and three (“Represented Employees”3) using reasonable best efforts Business Days prior to comply the Closing Date, the Buyer shall offer employment with the requirements Buyer, to be effective as of the Closing Date and contingent upon the occurrence of the Closing, to all of the Current Employees that it selects at a base salary or base wage which is equal to or greater than that provided by the Sellers or their Affiliates on the date of this Agreement based on the Sellers’ records as of November 17, 2003. Notwithstanding the preceding sentences to the contrary, the Buyer shall not offer employment to, solicit or employ (or permit any such collective bargaining agreement. For of its Affiliates to do the same) any Business Employee not represented by a labor union of the employees listed on Schedule 6.5.2(A) (the “Non-Represented Designated Employees”). Any Current Employee who accepts the Buyer’s offer of employment and on the Closing Date is (a) actively at work or (b) on a scheduled day off pursuant to his or her regular schedule or on a pre-approved PTO leave for vacation which was scheduled prior to the Closing Date and returns to work as scheduled; and is able to perform the essential functions of his or her position shall become employed by the Buyer on the Closing Date (the “Employment Date”). Any other offers of employment by the Buyer to a Current Employee shall be contingent upon such Current Employee meeting the terms of the following (a) and (b): (a) the Current Employee must on the Closing Date be on a leave of absence or short term disability leave consistent with the Sellers’ or their Affiliates’ established policies and practices which was authorized by the Sellers or their Affiliates prior to the Closing Date, Buyer shallincluding any PTO leave for any reason other than a pre-approved and scheduled vacation, any Extended Illness Leave, FMLA leave, or military leave and must return for work at the end of such authorized leave which shall cause not be longer than thirty (30) days after the Closing Date, unless applicable law gives the Current Employee a longer period for returning to work; and (b) any such Current Employee must provide the Buyer with any requested information regarding the reason for the leave and if any portion of its Subsidiaries tothe leave was due to his or her own health condition must, (i) prior to returning to work, obtain a certification from the Buyer’s Medical Department that such Current Employee is capable of returning to work. All Current Employees who are on an approved leave on the Closing Date and who accept employment with the Buyer pursuant to the terms of the immediately preceding sentence shall become employed with the Buyer on the date they return to work from the leave or the date they obtain the required medical certification, if earlier with such date being deemed the Employment Date for such employee. All Current Employees who become employed by the Buyer shall be referred to herein as a “Continuing Employee.” If practicable, the Buyer will give each Current Employee no later less than five (5) days prior in which to accept or reject the date determined under Buyer’s employment offer. Any Current Employee offered employment by the Employee Lease Agreement (Buyer shall continue to be the “Offer Effective Date”), use reasonable best efforts to provide a written offer responsibility of employment in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, Sellers or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment their Affiliates on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from after the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing shall not become a Continuing Employee until his or her Employment Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance Notwithstanding anything in this Agreement to the Seller contrary, neither the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to Sellers nor their Affiliates will provide to each of the Leased Buyer any medical records related to Current Employees compensation and benefits on until such time as any consents required by Law have been received from such employees to transfer same. The Buyer will provide the same basis as they were provided to such Leased Employee immediately Sellers or their Affiliates with Schedule 6.5.2(B) at least three (3) Business Days prior to the Closing DateDate which shall contain as of that date the names of the Current Employees the Buyer made offers of employment to, the rate of pay the Buyer offered, and whether the Current Employee accepted the offer.
Appears in 1 contract
Samples: Asset Sale Agreement (Sunoco Inc)
Employment Offers. Buyer 6.1.1. Purchaser shall make determine the Current Employees to whom Purchaser will offer employment, effective as of the Closing and thereafter (each such offer, an offer "EMPLOYMENT OFFER" and each such Current Employee or consultant shall be referred to herein as the "ASSUMED EMPLOYEE"). Purchaser shall provide to USDATA a written list of employment the Assumed Employees to any Business Employee represented by a labor union and whose whom Employment Offers shall be made within thirty days after the date hereof which list shall include at least 80% of the Current Employees. Each Employment Offer (a) shall be made on terms and conditions that are substantially similar to the terms and conditions offered to similarly situated employees of the relevant Subsidiary of Purchaser, except that salaries offered to the Assumed Employees shall be no less than the salaries paid to them under their current employment are covered by terms with USDATA and its Subsidiaries, (b) will not require that any Assumed Employee work in a collective bargaining agreement different location from where he/she is currently working, and (“Represented Employees”c) using reasonable best efforts Purchaser will not, prior to comply with the requirements Closing, take any action that contradicts or materially amends any Employment Offer. Without limitation, Purchaser is not required to grant any stock options or other equity based incentives to the Assumed Employees and it will be free to determine the type and amount, if any, of any such collective bargaining agreementbenefits offered to any Assumed Employee, if at all. For any Business Each Assumed Employee not represented who accepts an Employment Offer and who actually becomes employed by a labor union (“Non-Represented Employees”), Buyer shall, Purchaser or shall cause any of its Subsidiaries toin accordance with such offer is referred to herein as a "HIRED EMPLOYEE." USDATA and its Subsidiaries shall cooperate with and use their reasonable efforts to assist Purchaser in its efforts to secure satisfactory employment arrangements with the Assumed Employees. The "COMMENCEMENT DATE" for all Hired Employees shall be the Closing Date, except with respect to those Assumed Employees who (A) are, as of the Closing Date, on short-term disability, in which case the Commencement Date shall be the date upon which such an Assumed Employee is able to and does commence active duty with Purchaser or (B) Purchaser and Sellers have agreed will have a later Commencement Date.
6.1.2. Nothing in the employment or other agreements between any employees or consultants referred to in this Section 6.1 and USDATA or any of its Subsidiaries shall: (i) no later than five (5) days prior to limit or restrict such employee or consultant from serving as employees or consultant of the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of employment in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer Purchaser or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer ; and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”ii) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller Hired Employees or any other employee or consultant subsequently employed or engaged by the Purchaser shall be relieved and released from the confidentiality and non-compete obligations owed to USDATA or any of its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately prior to the Closing Dateextent required to perform the obligations and duties under their respective employment or engagement agreements with the Purchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (Tecnomatix Technologies LTD)
Employment Offers. Buyer or an Affiliate of Buyer (such entity that makes employment offers being the “Buyer Employer”) shall make an offer employment to all Available Employees at least ten (10) days prior to the Closing Date. Each such offer (i) shall provide for (A) the commencement of employment to be effective upon the applicable Transfer Date, and (B) annual salary or hourly wage rate, as applicable, that is not less than the Available Employee’s annual salary or hourly wage rate, as applicable, reflected on the Employee Schedule and modified by any Business Employee represented by a labor union and whose terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply increases thereto made in accordance with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”Section 6.2(a)(xvii), Buyer shall, or (ii) shall cause any not require such Available Employee to relocate to a location that is more than fifty (50) miles from the Available Employee’s current place of its Subsidiaries toemployment, (iiii) no later than shall be subject only to Closing, and (iv) shall be delivered to the Available Employees in writing, at a time and in a manner reasonably acceptable to Seller. At least five (5) days prior to the anticipated Closing Date, Buyer shall deliver to Seller a list of the Available Employees who have accepted employment with Buyer Employer, and each Available Employee who has rejected Buyer Employer’s offer of employment. An Available Employee who commences employment with Buyer Employer is referred to herein as a “Transferred Employee”. The “Transfer Date” for each Transferred Employee shall be 12:00:01 a.m. Houston, Texas time on the Closing Date, except with respect to any Available Employee to whom an employment offer is made and who is on leave as of the Closing Date, in which case the Transfer Date shall be the date determined upon which such Available Employee is eligible to return to work with Buyer Employer. In the event Buyer Employer terminates the employment of a Transferred Employee for reasons other than Cause or death or disability prior to the end of the twelve (12)-month period immediately following the Transfer Date, Buyer Employer shall provide such terminated Transferred Employee with a severance benefit in an amount equal to the severance benefit which the Transferred Employee would have been entitled to receive under the Employee Lease Agreement severance plan of Seller or a Seller Affiliate prior to being employed by Buyer Employer (the “Offer Effective DateSeverance Payment”); provided, use reasonable best efforts however, that (i) such Severance Payment will not be payable pursuant to provide a written offer of employment in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (iithis Section 7.4(b) to the extent required by and in accordance with applicable Law, enter into employment agreements with each that the payment of such Business Employees. Those Business EmployeesSeverance Payment would result in the duplication of benefits between this Section 7.4(b) and the applicable severance plan, including both Represented Employees policy, or arrangement, if any, of Buyer Employer, and Non-Represented Employees, who accept (ii) such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, Severance Payment shall be referred to as “contingent upon the Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at BuyerEmployee’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreementexecution, and for the avoidance of doubtnon-revocation of, a general release and waiver agreement in a form acceptable to Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately prior to the Closing DateEmployer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pembina Pipeline Corp)
Employment Offers. Buyer shall make an offer of employment (a) Prior to any Business Employee represented by a labor union and whose terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”)Closing, Buyer Buyers shall, or shall cause any one of its their Subsidiaries to, (i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide extend a written offer of employment or service to each Offered Employee (excluding for this purpose the Key Employees), in each case effective as of the Closing, on the same or better terms as existed immediately prior to the date hereof with respect to salary and on comparable terms, in the aggregate, with respect to bonus and employee benefits (other than long term equity incentives). Sellers shall have the right to review each offer of employment or service made pursuant to this section prior to it being sent to any Offered Employee. Such offer of employment or service shall provide for an employee or independent contractor consideration period of one (1) week, except in the case of any Offered Employee hired within one (1) week of the Closing, in which case such offer shall provide for an employee or independent contractor consideration period from the date of the offer until the Closing. Notwithstanding the foregoing, in the event the condition set forth in Section 4.3(b)(vi) has not been satisfied at the end of such one (1)-week period (or such shorter period, if applicable), then Buyer shall extend the employee or independent contractor consideration period for one or more one (1)-week periods until such condition is satisfied; provided however that Buyers shall not be obligated to extend the consideration period past the Outside Date. If Buyers, on the one hand, or Sellers, on the other hand, reasonably believe in good faith that an Offered Employee intends to leave the employ or service of Buyers or their Subsidiaries shortly after Closing, then such party shall promptly notify the other party of such fact. For purposes of determining eligibility to participate, vesting and entitlement to benefits where length of service is relevant under an employee benefit plan of Buyers or any of their Subsidiaries (other than with respect to benefit accruals under a comparable position todefined benefit pension plan) and to the extent expressly not denied under applicable Law, Buyers shall provide that the Offered Employees who are employees immediately prior to the Closing shall receive service credit under each employee benefit plan of Buyers or one of their Subsidiaries (other than with respect to benefit accruals under a defined benefit plan) for their period of service with Sellers prior to the Closing and, with respect to Offered Employees who are employed by Canadian Seller immediately prior to the Closing, shall recognize the past services of each such Offered Employees for the purposes of severance entitlement (including notice of termination of employment required under Employment Standards Act (B.C.)). Effective as of the Closing, Buyers or one of their Subsidiaries shall hire and engage each Offered Employee who accepts the offer of employment or service extended to such Offered Employee pursuant to this section. If an Offered Employee does not accept the offer of employment or service extended by Buyers or any of their Subsidiaries pursuant to this Section 9.1(a), then such Offered Employee’s employment or service shall be terminated by Sellers or their Subsidiaries, as applicable, unless Buyers otherwise agree, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) immediately prior to the extent required Closing. - 66 - Sellers shall provide all reasonable assistance to Buyers and their Subsidiaries in connection with the offers of employment or service to the Offered Employees contemplated by and in accordance with applicable Law, enter into employment agreements with each of such Business Employeesthis section. Those Business Employees, including both Represented Offered Employees and Non-Represented Employees, who accept such offer employment or service from Buyers or one of their Subsidiaries pursuant to the offers of employment on or before service made pursuant to this Section 9.1(a) and commence employment or service with Buyers or one of their Subsidiaries as of the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, Closing shall be referred to herein collectively as “Transferred Employees.” At ”. For the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit Offered Employees on approved leave of absence as set out in Section 5.15(a)(ii) of the Business Employees’ (Sellers Disclosure Schedule, Buyers shall make offers of employment effective upon the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation expiration of the Business leave of absence.
(b) Except as required by applicable Law, from and after the Closing Date. In accordance with the Transferred Employees shall cease to participate in and/or accrue further rights or benefits under any Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately prior to the Closing DateBenefit Plan.
Appears in 1 contract
Employment Offers. Buyer shall make an offer of employment to any Business Employee represented by a labor union and whose terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the date determined under the Employee Lease Agreement (the “Offer Effective Date”Except as provided on Schedule 10.1(a)(i), use reasonable best efforts to provide a written offer of employment in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with , Purchaser and each JDA Sub shall employ (where employment continues by operation of law) or, where employment does not continue by operation of law, shall offer employment to, each Employee listed on Schedule 10.1(a) on terms and conditions, including position, pay and benefits, which are substantially similar in the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance aggregate to the terms and conditions, including position, pay and benefits, provided such employee by Seller the actualor such Intactix Sub, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubtapplicable, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately prior to the Closing Date. Each such Employee who continues in employment by operation of law or who accepts an offer of employment pursuant to this Section 10.1 is hereafter referred to as a "New Purchaser Employee." In no event shall Purchaser be required to maintain any benefits or pay other forms of compensation for any specified period following the Closing Date or to continue the employment of any New Purchaser Employee
(ii) Except as set forth in Section 10.1(a)(iii) hereof, Seller shall indemnify and hold harmless (in accordance with and subject to the provisions of ARTICLE XII hereof) Purchaser, and any JDA Sub, for any Losses as a result of any salary, sales commissions, bonus compensation, payroll taxes, contributions to Employee Plans, fringe benefits, vacation pay, compensation, or other benefits or amounts under any Employee Plan or otherwise due and payable as of Closing Date with respect to any former Employee whose employment terminated for any reason prior to the Closing Date.
(iii) Seller agrees to use its reasonable commercial efforts and Parent and Seller agree to cause each Intactix Sub to use its reasonable commercial efforts to retain each Employee set forth on Schedule 10.1(a) up to the Closing Date and assist Purchaser or the applicable JDA Sub in securing or assuming (as the case may be) the employment of each of such Employees after the Closing. Seller shall not transfer and Parent and Seller shall not permit any Intactix Sub to transfer any Employee listed on Schedule 10.1(a) to an assignment unrelated to the Business prior to Closing without the prior written consent of Purchaser. Parent or Seller shall notify Purchaser promptly if, notwithstanding the foregoing, any Employee terminates his or her employment with Seller or an Intactix Sub, as applicable, prior to the Closing Date or submits his or her resignation to terminate employment effective after the Closing Date. Except where an Employee's employment continues by operation of law, Seller shall terminate and Parent and Seller shall cause each Intactix Sub to terminate the employment of each Employee immediately upon the Closing Date, and Seller shall not pay any severance and Parent and Seller shall not permit any Intactix Sub to pay any severance to any Employee so terminated unless required to do so by law and as disclosed on Schedule 4.10(c) of the Seller Disclosure Schedule. Where any Employee does not become an employee of Purchaser or a JDA Sub by operation of law as a result of the Acquisition, Seller or each Intactix Sub, as applicable, will prepare letters of termination and all other documentation required by company policies or applicable law with respect to terminating Employees and deliver such documentation to Purchaser prior to the 41 42 Closing Date. Purchaser shall be primarily responsible for communications with all Employees regarding the termination of their employment with Seller or an Intactix Sub, as applicable, and whether they will be employed with Purchaser or any JDA Sub; provided, that Purchaser will preclear all Employee contacts through Thomxx Xxxxxxxx. Xxrchaser shall assume and become obligated to pay the following Liabilities relating to Employees: (i) Taxes (including without limitation payroll taxes but excluding income taxes) accrued on or prior to the Closing Date and not more than thirty (30) days' past due and reflected in the calculation of Closing Working Capital as reflected in the Closing Statement; (ii) salary, sales commissions, and bonus compensation accrued on or prior to the Closing Date and reflected in the calculation of Closing Working Capital; (iii) vacation pay accrued on or prior to the Closing Date and not more than thirty (30) days past due and reflected in the calculation of Closing Working Capital; and (iv) other Liabilities related to the Employees reflected in the calculation of Working Capital (other than the $725,000 reflected on Schedule 1.74 hereto as Severance Accrual). All other obligations of Seller and each Intactix Sub with respect to Employees through the Closing Date shall remain the sole obligations of Seller and each Intactix Sub, as applicable
(iv) Notwithstanding anything in this Agreement to the contrary, any Employee who works in the United States under a valid U.S. Visa issued by the U.S. Department of Justice shall not become a New Purchaser Employee until such Employee has obtained a new U.S. Visa naming Purchaser as the employer; provided, however, that Purchaser shall diligently pursue an application for such U.S. Visa.
Appears in 1 contract
Employment Offers. Buyer shall make an offer of employment to any Business Employee represented by a labor union and whose terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”a) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior Prior to the date determined under hereof, Buyer or its designated Affiliate has offered, or immediately thereafter will offer, employment or service to each Business Employee disclosed on Section 5.10(g) of the Employee Lease Agreement Seller Disclosure Schedule: (x) who is actively employed on the “Offer Effective Date”), use reasonable best efforts Closing Date or who is temporarily absent from active employment due to provide a written offer of employment in a comparable position tovacation, effective as of 11:59 p.m., local time, on the Offer Effective Closing Date, each of such Business Employees, or (iiy) who is temporarily absent from active employment due to disability, military leave or any other approve leave or paid time off on the extent required by and in accordance with applicable LawClosing Date, enter into employment agreements with each upon termination of such Business temporary absence within six (6) months following the Closing Date, provided that such individual is able to perform the essential functions of the position (with or without reasonable accommodation) he or she previously held with Seller prior to such absence (the “Offered Employees”). Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer employment or service from Buyer or one of its Affiliates pursuant to the offers of employment on or before the Offer Effective Date in accordance with the provisions of such offer service made pursuant to this Section 8.1(a) and continue commence employment or service with Buyer or any one of its Subsidiaries, Subsidiaries shall be referred to herein collectively as “Transferred Employees.” At the Closing, ”. Seller shall provide all reasonable assistance to Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries Affiliates in connection with the Employee Services offers of employment or service to the Offered Employees contemplated by this section.
(as defined in b) The offer of employment provided under Section 8.1(a) to Offered Employees will provide for (i) base salary or hourly wages which are at least equivalent to the Employee Lease Agreement) during base salary or hourly wages provided by the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee Company immediately prior to the Closing Date.Closing, as set forth in Section 5.10(g) of the Seller Disclosure Schedule with respect to each such Transferred Employee;
Appears in 1 contract
Employment Offers. Buyer 6.1.1. Purchaser shall make determine the Current Employees to whom Purchaser will offer employment, effective as of the Closing and thereafter (each such offer, an offer “Employment Offer” and each such Current Employee or consultant shall be referred to herein as the “Assumed Employee”). Purchaser shall provide to USDATA a written list of employment the Assumed Employees to any Business Employee represented by a labor union and whose whom Employment Offers shall be made within thirty days after the date hereof which list shall include at least 80% of the Current Employees. Each Employment Offer (a) shall be made on terms and conditions that are substantially similar to the terms and conditions offered to similarly situated employees of the relevant Subsidiary of Purchaser, except that salaries offered to the Assumed Employees shall be no less than the salaries paid to them under their current employment are covered by terms with USDATA and its Subsidiaries, (b) will not require that any Assumed Employee work in a collective bargaining agreement different location from where he/she is currently working, and (“Represented Employees”c) using reasonable best efforts Purchaser will not, prior to comply with the requirements Closing, take any action that contradicts or materially amends any Employment Offer. Without limitation, Purchaser is not required to grant any stock options or other equity based incentives to the Assumed Employees and it will be free to determine the type and amount, if any, of any such collective bargaining agreementbenefits offered to any Assumed Employee, if at all. For any Business Each Assumed Employee not represented who accepts an Employment Offer and who actually becomes employed by a labor union (“Non-Represented Employees”), Buyer shall, Purchaser or shall cause any of its Subsidiaries toin accordance with such offer is referred to herein as a “Hired Employee.” USDATA and its Subsidiaries shall cooperate with and use their reasonable efforts to assist Purchaser in its efforts to secure satisfactory employment arrangements with the Assumed Employees. The “Commencement Date” for all Hired Employees shall be the Closing Date, except with respect to those Assumed Employees who (A) are, as of the Closing Date, on short-term disability, in which case the Commencement Date shall be the date upon which such an Assumed Employee is able to and does commence active duty with Purchaser or (B) Purchaser and Sellers have agreed will have a later Commencement Date.
6.1.2. Nothing in the employment or other agreements between any employees or consultants referred to in this Section 6.1 and USDATA or any of its Subsidiaries shall: (i) no later than five (5) days prior to limit or restrict such employee or consultant from serving as employees or consultant of the date determined under the Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of employment in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer Purchaser or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer ; and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”ii) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller Hired Employees or any other employee or consultant subsequently employed or engaged by the Purchaser shall be relieved and released from the confidentiality and non-compete obligations owed to USDATA or any of its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately prior to the Closing Dateextent required to perform the obligations and duties under their respective employment or engagement agreements with the Purchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (USDATA Liquidating Trust)
Employment Offers. Buyer shall Subject to Applicable Law, prior to the Closing, or such other period of time after the Signing Date as may be reasonably agreed by Intel, ST and FP, Holdings or any of its Subsidiaries may make an offer offers of employment to Intel Business Employees (other than any Intel Excluded Employees) and ST Business Employees (other than any ST Excluded Employees), to be effective as of the Closing or on such later date specified in the offer as may reasonably be agreed by Holdings, Intel, ST and FP; provided that to the extent permitted by Applicable Law, the offers to any inactive Intel Business Employee represented or ST Business Employee shall be effective on the date such Business Employee returns to active employment or such earlier date as may be reasonably requested by Holdings or one of its Subsidiaries and agreed by Intel (with respect to Intel Business Employees) or ST (with respect to ST Business Employees). Notwithstanding the foregoing, ST Designated Employees (to the extent employed by ST immediately prior to the Closing) shall automatically transfer to Holdings or one of its Subsidiaries on the Closing (or if such ST Designated Employee is inactive, at such time as specified by Applicable Law). Schedule 4.11(a) of the ST Master Agreement Disclosure Letter sets forth the ST Designated Employees. Notwithstanding anything in this Agreement to the contrary, in no event shall the acceptance of employment by any Intel Business Employee or ST Business Employee be a labor union condition to the Closing. The offers of employment for each such Intel Business Employee (other than Intel Excluded Employees) and whose ST Business Employee (other than ST Excluded Employees) will (i) be subject to requirements of Applicable Law for the jurisdiction in which the Intel Business Employee or ST Business Employee is located and include employment terms reasonably determined by Holdings or one of its Subsidiaries, as the case may be, and (ii) supersede, to the extent permitted by Applicable Law any prior agreements regarding the terms and conditions of employment are covered by a collective bargaining agreement (“Represented Employees”) using reasonable best efforts to comply with the requirements of any such collective bargaining agreement. For any Intel Business Employee not represented by a labor union (“Non-Represented Employees”), Buyer shall, or shall cause any of its Subsidiaries to, (i) no later than five (5) days prior to the date determined under the ST Business Employee Lease Agreement (the “Offer Effective Date”), use reasonable best efforts to provide a written offer of employment as in a comparable position to, effective as of 11:59 p.m., local time, on the Offer Effective Date, each of such Business Employees, or (ii) to the extent required by and in accordance with applicable Law, enter into employment agreements with each of such Business Employees. Those Business Employees, including both Represented Employees and Non-Represented Employees, who accept such offer of employment on or before the Offer Effective Date in accordance with the provisions of such offer and continue employment with Buyer or any of its Subsidiaries, shall be referred to as “Transferred Employees.” At the Closing, Buyer and the Seller shall enter into the Employee Lease Agreement pursuant to which Buyer shall, at Buyer’s cost, have the benefit of the Business Employees’ (the “Leased Employees”) services during the period from the Closing Date through the Offer Effective Date (the “Lease Period”) such that Buyer may carry on the operation of the Business from and after the Closing Date. In accordance with the Employee Lease Agreement, and for the avoidance of doubt, Buyer shall timely advance to the Seller the actual, out-of-pocket expenses to be paid or provided by the Seller and its Subsidiaries for wages and benefits associated with the Leased Employees during the Lease Period and any other liabilities attributable to Leased Employees that are incurred by the Seller and its Subsidiaries in connection with the Employee Services (as defined in the Employee Lease Agreement) during the Lease Period such that the Seller is in the same economic position as if the Leased Employees had been hired by Buyer as of the Closing. For the avoidance of doubt, during the Lease Period, the Seller and its Subsidiaries shall continue to provide to each of the Leased Employees compensation and benefits on the same basis as they were provided to such Leased Employee immediately effect prior to the Closing Date; provided, however, that in no event shall any prior agreement with respect to Intellectual Property be superseded, except that unless otherwise agreed by Intel and Numonyx or ST and Holdings, as the case may be, all Intel Transferred Employees and ST Transferred Employees shall be permitted to disclose to Holdings or any of its Subsidiaries all information in their possession or otherwise known by them which is directly related to the Intel Business or ST Business, as applicable, and not related to Patents or Confidential Information of Intel or ST, respectively, in each case, to the extent not an Intel Transferred Asset or ST Transferred Asset. As of the Closing Date, the Intel Transferred Entities shall employ only Intel Transferred Employees, and the ST Transferred Entities shall employ only ST Transferred Employees.
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Samples: Master Agreement (Intel Corp)