Common use of Hired Employees Clause in Contracts

Hired Employees. (i) Upon terms and conditions set by the NEW OPERATORS, as described herein, the NEW OPERATORS shall offer employment to, substantially all employees of the Facilities who, as of the Closing Date, are actively working at the Facilities. NEW OPERATORS shall also offer employment upon the terms and conditions set forth herein, to all employees of OWNERS (expressly excluding the administrators of the Facilities who are employed by Current Manager, unless said administrators should elect to accept employment with NEW OPERATORS upon terms and conditions negotiated outside this Agreement and not addressed herein) who, as of the Closing Date are on a leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy or due to work-related injury or illness, when and only when they return from such leave. NEW OPERATORS shall defend, hold harmless and indemnify OWNERS from and against any and all claims, causes of action and liability for or relating to the failure of NEW OPERATORS to hire or offer employment to any OWNERS employees, on the terms set forth in this Section 4.01(a), who are as of the Closing Date (i) actively working, or (ii) on a leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy, or (iii) on a leave of absence due to a work-related injury or illness. All such employees electing to accept employment with NEW OPERATORS, are hereinafter referred to as the (“Hired Employees”). It is understood that NEW OPERATORS shall not be responsible for any disability or workers’ compensation benefits for any 10370946.3 13 employees on leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy or due to a work-related injury or illness that are receiving such benefits as of the Closing Date until such time as they become Hired Employees. As to each of the Hired Employees, NEW OPERATORS shall recognize each such Hired Employee’s original hire date and shall continue to employ each such Hired Employee for a period of no less than ninety (90) days following the Closing Date, unless the employment of such Hired Employee is terminated in accordance with NEW OPERATORS’ personnel policies, or as a result of such Hired Employee’s resignation. Any such employment of a Hired Employee by NEW OPERATORS shall be on terms which require said Hired Employee to perform comparable services, in a comparable position and at the same base salary as such Hired Employee enjoyed with the Facilities prior to the Closing Date. OWNERS, or any of its Affiliates, shall have the right to employ or offer to employ any former employee of the Facilities who declines to accept employment with NEW OPERATORS.

Hired Employees. (ia) Upon terms and conditions set by the NEW OPERATORS, as described herein, the NEW OPERATORS New Operator shall offer employment to, to substantially all of the employees of Kindred employed at the Facilities who, Facility as of the Closing Date, are actively . A list of all such employees of Kindred working at or in connection with the Facilities. NEW OPERATORS shall also offer employment upon the terms and conditions set forth herein, to all employees of OWNERS (expressly excluding the administrators of the Facilities who are employed by Current Manager, unless said administrators should elect to accept employment with NEW OPERATORS upon terms and conditions negotiated outside this Agreement and not addressed herein) who, Facility as of , 20 (including each employee’s name, title, hours worked during the preceding twelve months, hire date and hourly rate or periodic salary) is attached as Exhibit 10.1(a) hereto. Kindred shall provide New Operator with an updated version of Exhibit 10.1(a) at least five (5) Business Days, but no more than fifteen (15) Business Days, prior to the Closing Date are on a leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy or due to work-related injury or illness, when and only when they return from such leave. NEW OPERATORS shall defend, hold harmless and indemnify OWNERS from and against any and all claims, causes of action and liability for or relating to the failure of NEW OPERATORS to hire or offer employment to any OWNERS employees, on the terms set forth in this Section 4.01(a), who are as of the Closing Date (i) actively working, or (ii) on a leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy, or (iii) on a leave of absence due to a work-related injury or illnessDate. All such employees electing to accept employment with NEW OPERATORS, New Operator are hereinafter referred to as the (“Hired Employees”). It is understood that NEW OPERATORS To the extent permissible under the applicable Employee Plans, New Operator shall credit Hired Employees service date with Kindred for purposes of eligibility to participate and to vest (but not be responsible for any disability or workers’ compensation benefits for any 10370946.3 13 employees on leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy or due to a work-related injury or illness that are receiving such benefits as of benefit accrual purposes) under the Closing Date until such time as they become Hired Employees. As to each of Employee Plans in which the Hired Employees, NEW OPERATORS shall recognize Employees participate after the Effective Time to the extent such service was taken into account for each such Hired Employee’s original hire date purpose by Kindred under each corresponding Employee Plan and New Operator shall continue to employ each such Hired Employee for a period of no less than ninety (90) days following the Closing DateEffective Time, unless the employment of such Hired Employee is terminated in accordance with NEW OPERATORS’ New Operator’s personnel policies, or as a result of such Hired Employee’s resignation. Any such employment of a Hired Employee by NEW OPERATORS New Operator shall be on terms which require said Hired Employee to perform comparable services, in a comparable position (to the extent that New Operator has the need for the same or equivalent position) and at the same a comparable base salary and similar fringe benefits as such Hired Employee enjoyed with the Facilities Kindred prior to the Closing DateEffective Time. OWNERSKindred, or any of its Affiliates, shall have the right to employ or offer to employ any former employee of the Facilities Kindred who declines to accept employment with NEW OPERATORSNew Operator. On or after thirty (30) days prior to the Closing Date, New Operator, upon prior notice to and coordination with Kindred, shall be entitled to meet with the Facility employees and distribute employment and Employee Plan applications and materials.

Hired Employees. Buyer Exhibit 4 sets forth a list of all Employees who are designated to receive an offer from Buyer on the Closing Date (i) Upon terms and conditions set by each a “Closing Date Offered Employee”). Seller shall terminate the NEW OPERATORSemployment of each Closing Date Offered Employee, as described herein, the NEW OPERATORS shall offer employment to, substantially all employees of the Facilities who, effective as of the Closing Date, are actively working whether or not such individual accepts Buyer’s offer of employment, and any Closing Date Offered Employee who accepts Buyer’s offer of employment (each a “Closing Date Hired Employee”) shall become an employee of Buyer on the day following the Closing Date. Any Employee who is not a Closing Date Offered Employee and who is not an Oxygen Employee shall be hereinafter referred to as a “Leased Employee,” and shall be so designated on Schedule 4.8(a)(ii). Buyer shall have no obligation at the Facilities. NEW OPERATORS shall also any time to offer employment to, or to hire, any Leased Employees or Oxygen Employees; however, Buyer may interview, offer employment to, and, upon the terms five (5) business days written notice to Seller, hire any such Leased Employees and conditions set forth herein, to all employees of OWNERS (expressly excluding the administrators of the Facilities who are employed by Current Manager, unless said administrators should elect to accept employment with NEW OPERATORS Oxygen Employees in its sole discretion upon terms and conditions negotiated outside this Agreement acceptable to Buyer, either during the Lease Term (as hereinafter defined) or thereafter; provided, however, that Buyer may not hire any Oxygen Employee prior to the end of the Interim Period described in Section 4.10. Seller shall terminate the employment of any Leased Employee or Oxygen Employee who receives such an offer from Buyer during the Lease Term, and not addressed herein) who, such termination shall be effective as of the Closing Date are on a leave day immediately prior to the effective date of absence pursuant to OWNERS’ Family and Medical Leave Buyer’s offer of Absence Policy employment. A Leased Employee or due to work-related injury or illness, when and only when they return from such leave. NEW OPERATORS shall defend, hold harmless and indemnify OWNERS from and against any Oxygen Employee who accepts Buyer’s offer of employment (each an “Additional Hired Employee,” and all claims, causes of action and liability for or relating to the failure of NEW OPERATORS to hire or offer employment to any OWNERS employees, on the terms set forth in this Section 4.01(a), who are as of such individuals collectively with the Closing Date (i) actively workingHired Employees, or (ii) on a leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy, or (iii) on a leave of absence due to a work-related injury or illness. All such employees electing to accept employment with NEW OPERATORS, are hereinafter referred to as the (“Hired Employees”). It is understood that NEW OPERATORS ) shall not be responsible for any disability or workers’ compensation benefits for any 10370946.3 13 employees become an employee of Buyer on leave the date specified in Buyer’s offer effective the day after such date of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy or due to termination (a work-related injury or illness that are receiving such benefits as of the Closing Date until such time as they become Hired Employees. As to each of the Hired Employees, NEW OPERATORS shall recognize each such Hired Employee’s original hire effective date and of employment with Buyer hereinafter the “Effective Hire Date”). Seller shall continue to employ each such Hired Employee for a period of no less than ninety (90) days following the Closing Date, unless the employment of such Hired Employee is terminated in accordance with NEW OPERATORS’ personnel policiesnot make competing offers or proposals, or as a result directly or indirectly seek to induce any Employees not to accept an offer of such Hired Employee’s resignation. Any such employment of a Hired Employee made by NEW OPERATORS shall be on terms which require said Hired Employee to perform comparable services, in a comparable position and at the same base salary as such Hired Employee enjoyed with the Facilities prior to the Closing Date. OWNERSBuyer, or any otherwise interfere with Buyer’s rights under the foregoing provisions of its Affiliates, shall have the right to employ or offer to employ any former employee of the Facilities who declines to accept employment with NEW OPERATORSthis Section 4.8(a).

Hired Employees. (i) Upon terms and conditions set by the NEW OPERATORS, as described herein, the NEW OPERATORS shall offer employment to, substantially all employees of the Facilities who, as of the Closing Date, are actively working at the Facilities. NEW OPERATORS shall also offer employment upon the terms and conditions set forth herein, to all employees of OWNERS (expressly excluding the administrators of the Facilities who are employed by Current Manager, unless said administrators should elect to accept employment with NEW OPERATORS upon terms and conditions negotiated outside this Agreement and not addressed herein) who, as of the Closing Date are on a leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy or due to work-related injury or illness, when and only when they return from such leave. NEW OPERATORS shall defend, hold harmless and indemnify OWNERS from and against any and all claims, causes of action and liability for or relating to the failure of NEW OPERATORS to hire or offer employment to any OWNERS employees, on the terms set forth in this Section 4.01(a), who are as of the Closing Date (i) actively working, or (ii) on a leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy, or (iii) on a leave of absence due to a work-related injury or illness. All such employees electing to accept employment with NEW OPERATORS, are hereinafter referred to as the (“Hired Employees”). It is understood that NEW OPERATORS shall not be responsible for any disability or workers’ compensation benefits for any 10370946.3 13 employees on leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy or due to a work-related injury or illness that are receiving such benefits as of the Closing Date until such time as they become Hired Employees. As to each of the Hired Employees, NEW OPERATORS shall recognize each such Hired Employee’s original hire date and shall continue to employ each such Hired Employee for a period of no less than ninety (90) days following the Closing Date, unless the employment of such Hired Employee is terminated in accordance with NEW OPERATORS’ personnel policies, or as a result of such Hired Employee’s resignation. Any such employment of a Hired Employee by NEW OPERATORS shall be on terms which require said Hired Employee to perform comparable services, in a comparable position and at the same base salary as such Hired Employee enjoyed with the Facilities prior to the Closing Date. OWNERS, or any of its Affiliates, shall have the right to employ or offer to employ any former employee of the Facilities who declines to accept employment with NEW OPERATORS.. (j) Between the Effective Date and the Closing Date, neither OWNERS, nor its parent company, nor any of its subsidiaries and/or affiliates, through any principal and/or agent, shall have directly or indirectly solicited any employees of the Facilities for the purpose of transferring such employee to and/or hiring such employee by/at any other nursing home owned by OWNERS, its parent, any subsidiary and/or affiliate of OWNERS; (k) Each of OWNERS and NEW OPERATORS acknowledge and agree that the provisions of Section 4.01(a) are designed solely to ensure that OWNERS are not required to give notice to the employees of the Facilities of the “closure” thereof under the Worker Adjustment and Retraining Notification Act of 1988, as amended (the “WARN Act”) or under any comparable state law. Accordingly, NEW OPERATORS shall indemnify, defend and hold harmless OWNERS for, from and against any liability which it may incur under the WARN Act or under comparable state law in the event of a violation by NEW OPERATORS of its obligations thereunder, including a violation that results from allegations that NEW OPERATORS constructively terminated employees of the Facilities as a result of the terms and conditions of employment offered by NEW OPERATORS; provided, however, that nothing herein shall be construed as imposing any obligation on NEW OPERATORS to indemnify, defend or hold harmless OWNERS for, from and against any liability which it may incur under the WARN Act as a result of the acts or omissions of OWNERS prior to the Closing Date, it being understood and agreed that NEW OPERATORS shall only be liable for its own acts or omissions on or after the Closing Date. Nothing in this Article IV shall, however, create any rights in favor of any person not a party hereto, including the employees of the Facilities, or constitute an employment agreement or condition of employment for any employee of OWNERS or any Affiliate thereof who is a Hired Employee. (l) OWNERS shall offer and provide, as appropriate, group health plan continuation coverage pursuant to the requirements of Section 601, et seq. of ERISA and Section 4980B of the Code (“COBRA”) to all of the employees of the Facilities to whom it is required to offer the same under applicable law. OWNERS acknowledges and agrees that NEW OPERATORS is not assuming any of OWNERS’ or its Affiliates’ obligations to its employees under COBRA or otherwise, except as specifically provided in this Article IV. As of the Closing Date, all active employees of OWNERS employed at the Facilities: (i) who are eligible to participate as of the Closing Date in group health insurance coverage sponsored by OWNERS and (ii) who become 10370946.3 14 Hired Employees after the Closing Date for the Facilities, shall be eligible for participation in a group health plan (as defined for purposes of Internal Revenue Code Section 4980B) established and maintained by NEW OPERATORS for the general benefit of employees and their dependents, and all such employees shall, if permissible under the plan of NEW OPERATORS, be covered without a waiting period and without regard to any pre-existing condition unless (a) they are under a waiting period with OWNERS at the time of Closing, in which case they shall be required to complete their waiting period while under the group plan of NEW OPERATORS or (b) they were subject to a pre-existing condition exclusion while under OWNERS’ group-health plan, in which case they shall be subject to the same exclusion while in the group plan of NEW OPERATORS, which exclusion shall, if applicable, be subject to the same time limitation while employed by the NEW OPERATORS as was applicable thereto while said employees were employed by OWNERS, with the time limit calculated from the date the same commenced while employed by such NEW OPERATORS. The NEW OPERATORS and OWNERS acknowledge and agree that it is the intent of this provision that neither OWNERS nor its Affiliates shall be required to provide continued health coverage under ERISA or Section 4980B of the Code to any Hired Employees or to any qualified beneficiary (as defined for purposes of Section 4980B of the Code) with respect to any such employees. Without limitation of the foregoing, OWNERS shall be responsible for providing welfare benefits (including, without limitation, medical, hospital, dental, accidental death and dismemberment, life, disability and other similar benefits) to Hired Employees for all claims incurred and benefits earned prior to the Closing Date for the Facilities under and subject to the generally applicable terms and conditions of the employee benefit plans, programs and policies in which such employees were entitled to participate prior to the Closing Date, as amended from time to time. NEW OPERATORS shall be responsible for providing such benefits for claims incurred and benefits earned on or after the Closing Date under and subject to the generally applicable terms and conditions of NEW OPERATORS’ employee benefit plans, programs and arrangements as amended from time to time. For purposes of this Section 4.01(d), a claim is “incurred” on the date the applicable medical or dental services are rendered, drugs or other medical equipment are purchased or used, as the case may be, or, in the case of a confinement, the related expenses are deemed incurred per diem. SECTION 4.02