Hired Employees. (a) New Operator shall offer employment to substantially all of the employees of Kindred employed at the Facility as of the Closing Date. A list of all such employees of Kindred working at or in connection with the 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. All such employees electing to accept employment with New Operator are hereinafter referred to as the “Hired Employees”. 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 for benefit accrual purposes) under the Employee Plans in which the Hired Employees participate after the Effective Time to the extent such service was taken into account for each such 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 Effective Time, unless the employment of such Hired Employee is terminated in accordance with New Operator’s personnel policies, or as a result of such Hired Employee’s resignation. Any such employment of a Hired Employee by 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 a comparable base salary and similar fringe benefits as such Hired Employee enjoyed with Kindred prior to the Effective Time. Kindred, or any of its Affiliates, shall have the right to employ or offer to employ any former employee of Kindred who declines to accept employment with New 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. (b) New Operator acknowledges that one purpose of Section 10.1(a) is to ensure that Kindred is not required to give notice to the employees of Kindred of the “closure” of the Facility under the Worker Adjustment and Retraining Notification Act of 1988, as amended (the “WARN Act”) or under any comparable state law applicable to such employees. Accordingly, New Operator shall indemnify, defend and hold harmless Kindred for, from and against any liability which Kindred may incur under the WARN Act or under any applicable comparable state law in the event of a violation by New Operator of its obligations thereunder, including a violation that results from allegations that New Operator constructively terminated employees of Kindred as a result of the terms and conditions of employment offered by New Operator. Further, New Operator shall be solely liable for its own acts and omissions in connection with this transfer of operations and shall indemnify, defend and hold harmless, Kindred for, from and against any liability for such acts or omissions, including, but not limited to New Operator’s failure to hire an employee or former employee as contemplated in paragraph 10.1 (a) or termination of employment of any former Kindred employee. Nothing in this Article X shall, however, create any rights in favor of any person not a party hereto, including the employees of Kindred, or constitute an employment agreement or condition of employment for any employee of Kindred or any Affiliate thereof who is a Hired Employee. (c) Except as otherwise required by Law, Kindred 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 Kindred to whom it is required to offer the same under applicable Law. Kindred acknowledges and agrees that New Operator is not assuming any of Kindred’s or it’s Affiliates’ obligations to its employees under COBRA or otherwise. It is understood that New Operator shall not be responsible to pay any disability or workers’ compensation benefits to or for any Kindred employee who is receiving such benefits with respect to a disability or injury covered by Kindred’s benefit plans or workers compensation policies with respect to an injury or disability attributable to the period ending on the Closing Date.
Appears in 2 contracts
Samples: Master Lease Agreement (Kindred Healthcare, Inc), Master Lease Agreement (Kindred Healthcare, Inc)
Hired Employees. (ai) New Operator Upon terms and conditions set by the NEW OPERATORS, as described herein, the NEW OPERATORS shall offer employment to to, substantially all employees of the employees of Kindred employed at the Facility Facilities who, as of the Closing Date, are actively working at the Facilities. A list of NEW OPERATORS shall also offer employment upon the terms and conditions set forth herein, to all such employees of Kindred working at or in connection OWNERS (expressly excluding the administrators of the Facilities who are employed by Current Manager, unless said administrators should elect to accept employment with the Facility 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, 20 (including each employee’s namewhen and only when they return from such leave. NEW OPERATORS shall defend, titlehold harmless and indemnify OWNERS from and against any and all claims, hours worked during the preceding twelve months, hire date causes of action and hourly rate liability for 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 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 DateDate (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 Operator NEW OPERATORS, are hereinafter referred to as the (“Hired Employees”). To 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 extent permissible under the applicable Employee Plans, New Operator shall credit Closing Date until such time as they become Hired Employees service date with Kindred for purposes Employees. As to each of eligibility to participate and to vest (but not for benefit accrual purposes) under the Employee Plans in which the Hired Employees participate after the Effective Time to the extent such service was taken into account for Employees, NEW OPERATORS shall recognize each such purpose by Kindred under each corresponding Employee Plan Hired Employee’s original hire date and New Operator shall continue to employ each such Hired Employee for a period of no less than ninety (90) days following the Effective TimeClosing Date, unless the employment of such Hired Employee is terminated in accordance with New Operator’s NEW OPERATORS’ personnel policies, or as a result of such Hired Employee’s resignation. Any such employment of a Hired Employee by New Operator NEW OPERATORS 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 and at the same or equivalent position) and at a comparable base salary and similar fringe benefits as such Hired Employee enjoyed with Kindred the Facilities prior to the Effective TimeClosing Date. KindredOWNERS, or any of its Affiliates, shall have the right to employ or offer to employ any former employee of Kindred the Facilities who declines to accept employment with New Operator. On or after thirty NEW OPERATORS.
(30j) days prior to Between the Effective Date and the Closing Date, New Operatorneither OWNERS, upon prior notice to and coordination with Kindrednor its parent company, nor any of its subsidiaries and/or affiliates, through any principal and/or agent, shall be entitled have directly or indirectly solicited any employees of the Facilities for the purpose of transferring such employee to meet with the Facility employees and distribute employment and Employee Plan applications and materials.and/or hiring such employee by/at any other nursing home owned by OWNERS, its parent, any subsidiary and/or affiliate of OWNERS;
(bk) New Operator acknowledges Each of OWNERS and NEW OPERATORS acknowledge and agree that one purpose the provisions of Section 10.1(a4.01(a) is are designed solely to ensure that Kindred is OWNERS are not required to give notice to the employees of Kindred the Facilities of the “closure” of the Facility thereof under the Worker Adjustment and Retraining Notification Act of 1988, as amended (the “WARN Act”) or under any comparable state law applicable to such employeeslaw. Accordingly, New Operator NEW OPERATORS shall indemnify, defend and hold harmless Kindred OWNERS for, from and against any liability which Kindred it may incur under the WARN Act or under any applicable comparable state law in the event of a violation by New Operator NEW OPERATORS of its obligations thereunder, including a violation that results from allegations that New Operator NEW OPERATORS constructively terminated employees of Kindred the Facilities as a result of the terms and conditions of employment offered by New Operator. FurtherNEW OPERATORS; provided, New Operator however, that nothing herein shall be solely liable for its own acts and omissions in connection with this transfer of operations and shall construed as imposing any obligation on NEW OPERATORS to indemnify, defend and or hold harmless, Kindred harmless OWNERS for, from and against any liability for such which it may incur under the WARN Act as a result of the acts or omissionsomissions of OWNERS prior to the Closing Date, including, but not limited to New Operator’s failure to hire an employee it being understood and agreed that NEW OPERATORS shall only be liable for its own acts or former employee as contemplated in paragraph 10.1 (a) omissions on or termination of employment of any former Kindred employeeafter the Closing Date. Nothing in this Article X IV shall, however, create any rights in favor of any person not a party hereto, including the employees of Kindredthe Facilities, or constitute an employment agreement or condition of employment for any employee of Kindred OWNERS or any Affiliate thereof who is a Hired Employee.
(cl) Except as otherwise required by Law, Kindred 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 Kindred the Facilities to whom it is required to offer the same under applicable Lawlaw. Kindred OWNERS acknowledges and agrees that New Operator NEW OPERATORS is not assuming any of Kindred’s OWNERS’ or it’s its Affiliates’ obligations to its employees under COBRA or otherwise, except as specifically provided in this Article IV. It is understood that New Operator shall not be responsible to pay any disability or workers’ compensation benefits to or for any Kindred employee who is receiving such benefits with respect to a disability or injury covered by Kindred’s benefit plans or workers compensation policies with respect to an injury or disability attributable to the period ending on 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
Appears in 2 contracts
Samples: Operations Transfer Agreement (Diversicare Healthcare Services, Inc.), Operations Transfer Agreement (Diversicare Healthcare Services, Inc.)
Hired Employees. (ai) New Operator Upon terms and conditions set by the NEW OPERATORS, as described herein, the NEW OPERATORS shall offer employment to to, substantially all employees of the employees of Kindred employed at the Facility Facilities who, as of the Closing Date, are actively working at the Facilities. A list of NEW OPERATORS shall also offer employment upon the terms and conditions set forth herein, to all such employees of Kindred working at or in connection OWNERS (expressly excluding the administrators of the Facilities who are employed by Current Manager, unless said administrators should elect to accept employment with the Facility 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, 20 (including each employee’s namewhen and only when they return from such leave. NEW OPERATORS shall defend, titlehold harmless and indemnify OWNERS from and against any and all claims, hours worked during the preceding twelve months, hire date causes of action and hourly rate liability for 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 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 DateDate (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 Operator NEW OPERATORS, are hereinafter referred to as the (“Hired Employees”). To 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 extent permissible under the applicable Employee Plans, New Operator shall credit Closing Date until such time as they become Hired Employees service date with Kindred for purposes Employees. As to each of eligibility to participate and to vest (but not for benefit accrual purposes) under the Employee Plans in which the Hired Employees participate after the Effective Time to the extent such service was taken into account for Employees, NEW OPERATORS shall recognize each such purpose by Kindred under each corresponding Employee Plan Hired Employee’s original hire date and New Operator shall continue to employ each such Hired Employee for a period of no less than ninety (90) days following the Effective TimeClosing Date, unless the employment of such Hired Employee is terminated in accordance with New Operator’s NEW OPERATORS’ personnel policies, or as a result of such Hired Employee’s resignation. Any such employment of a Hired Employee by New Operator NEW OPERATORS 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 and at the same or equivalent position) and at a comparable base salary and similar fringe benefits as such Hired Employee enjoyed with Kindred the Facilities prior to the Effective TimeClosing Date. KindredOWNERS, or any of its Affiliates, shall have the right to employ or offer to employ any former employee of Kindred the Facilities who declines to accept employment with New Operator. On or after thirty NEW OPERATORS.
(30j) days prior to Between the Effective Date and the Closing Date, New Operatorneither OWNERS, upon prior notice to and coordination with Kindrednor its parent company, nor any of its subsidiaries and/or affiliates, through any principal and/or agent, shall be entitled to meet with have directly or indirectly solicited any employees of the Facility employees and distribute employment and Employee Plan applications and materials.
(b) New Operator acknowledges that one 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 10.1(a4.01(a) is are designed solely to ensure that Kindred is OWNERS are not required to give notice to the employees of Kindred the Facilities of the “closure” of the Facility thereof under the Worker Adjustment and Retraining Notification Act of 1988, as amended (the “WARN Act”) or under any comparable state law applicable to such employeeslaw. Accordingly, New Operator NEW OPERATORS shall indemnify, defend and hold harmless Kindred OWNERS for, from and against any liability which Kindred it may incur under the WARN Act or under any applicable comparable state law in the event of a violation by New Operator NEW OPERATORS of its obligations thereunder, including a violation that results from allegations that New Operator NEW OPERATORS constructively terminated employees of Kindred the Facilities as a result of the terms and conditions of employment offered by New Operator. FurtherNEW OPERATORS; provided, New Operator however, that nothing herein shall be solely liable for its own acts and omissions in connection with this transfer of operations and shall construed as imposing any obligation on NEW OPERATORS to indemnify, defend and or hold harmless, Kindred harmless OWNERS for, from and against any liability for such which it may incur under the WARN Act as a result of the acts or omissionsomissions of OWNERS prior to the Closing Date, including, but not limited to New Operator’s failure to hire an employee it being understood and agreed that NEW OPERATORS shall only be liable for its own acts or former employee as contemplated in paragraph 10.1 (a) omissions on or termination of employment of any former Kindred employeeafter the Closing Date. Nothing in this Article X IV shall, however, create any rights in favor of any person not a party hereto, including the employees of Kindredthe Facilities, or constitute an employment agreement or condition of employment for any employee of Kindred OWNERS or any Affiliate thereof who is a Hired Employee.
(c) Except as otherwise required by Law, Kindred 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 Kindred to whom it is required to offer the same under applicable Law. Kindred acknowledges and agrees that New Operator is not assuming any of Kindred’s or it’s Affiliates’ obligations to its employees under COBRA or otherwise. It is understood that New Operator shall not be responsible to pay any disability or workers’ compensation benefits to or for any Kindred employee who is receiving such benefits with respect to a disability or injury covered by Kindred’s benefit plans or workers compensation policies with respect to an injury or disability attributable to the period ending on the Closing Date.
Appears in 1 contract
Samples: Operating Transfer Agreement
Hired Employees. (a) New Operator shall offer employment to substantially all of the employees of Kindred employed at the Facility as of the Closing Date. A list of all such employees of Kindred working at or in connection with the 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. All such employees electing to accept employment with New Operator are hereinafter referred to as the “Hired Employees”. 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 for benefit accrual purposes) under the Employee Plans in which the Hired Employees participate after the Effective Time to the extent such service was taken into account for each such 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 Effective Time, unless the employment of such Hired Employee is terminated in accordance with New Operator’s personnel policies, or as a result of such Hired Employee’s resignation. Any such employment of a Hired Employee by 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 a comparable base salary and similar fringe benefits as such Hired Employee enjoyed with Kindred prior to the Effective Time. Kindred, or any of its Affiliates, Purchaser shall have the right (in its sole and absolute discretion), but not the obligation, to employ offer employment, on an at will basis, effective on the Closing Date, to any or offer all Current Business Employees pursuant to employ terms and conditions to be determined in the sole discretion of Purchaser (the “Employment Offers”). In no event shall Purchaser be obligated to hire or retain any former employee of Kindred who declines to accept employment with New OperatorPerson for any period following the Closing. On or after thirty At least two (302) days Business Days prior to the Closing Date, New Operator, upon prior notice to and coordination Purchaser shall provide the Motion Companies with Kindred, shall be entitled to meet with the Facility employees and distribute employment and Employee Plan applications and materials.
(b) New Operator acknowledges that one purpose a list of Section 10.1(a) is to ensure that Kindred is not required to give notice to the all employees of Kindred any Motion Company to which Purchaser intends to make an Employment Offer, and the Motion Companies shall make commercially reasonable efforts to cooperate with Purchaser to effectuate such offers. The Current Business Employees who accept Purchaser’s Employment Offers and who commence employment with Purchaser pursuant to such offer terms are referred to herein as the “Hired Employees.” Under no circumstances shall any Business Employee become an employee of Purchaser unless such individual becomes a Hired Employee or is otherwise hired by Purchaser. Effective as of the “closure” Closing Date, the Motion Companies shall terminate all Hired Employees and shall pay, no later than the end of the Facility first pay period after the Closing (or as otherwise required under the Worker Adjustment applicable Law), to all such Hired Employees all amounts earned or accrued (but not paid) for wages, commissions, salaries and Retraining Notification Act of 1988, as amended bonuses (the “WARN Act”but not including paid time off) or under any comparable state law applicable relating to such employees. Accordingly, New Operator shall indemnify, defend and hold harmless Kindred for, from and against any liability which Kindred may incur under the WARN Act or under any applicable comparable state law in the event of a violation by New Operator of its obligations thereunder, including a violation that results from allegations that New Operator constructively terminated employees of Kindred as a result of the terms and conditions of employment offered by New Operator. Further, New Operator shall be solely liable for its own acts and omissions in connection with this transfer of operations and shall indemnify, defend and hold harmless, Kindred for, from and against any liability for such acts or omissions, includingperiods up to, but not limited to New Operator’s failure to hire an employee or former employee as contemplated in paragraph 10.1 (a) or termination of employment of any former Kindred employee. Nothing in this Article X shallincluding, however, create any rights in favor of any person not a party hereto, including the employees of Kindred, or constitute an employment agreement or condition of employment for any employee of Kindred or any Affiliate thereof who is a Hired Employee.
(c) Except as otherwise required by Law, Kindred 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 Kindred to whom it is required to offer the same under applicable Law. Kindred acknowledges and agrees that New Operator is not assuming any of Kindred’s or it’s Affiliates’ obligations to its employees under COBRA or otherwise. It is understood that New Operator shall not be responsible to pay any disability or workers’ compensation benefits to or for any Kindred employee who is receiving such benefits with respect to a disability or injury covered by Kindred’s benefit plans or workers compensation policies with respect to an injury or disability attributable to the period ending on the Closing Date, and shall make and account for all periods up to, but not including, the Closing Date, all proper deductions, remittances and contributions for employee wages, commissions and salaries required under all Contracts and Laws (including for health, hospital and medical insurance, income Tax, FICA Taxes and the like). For avoidance of doubt, the Motion Companies shall be responsible for all Liabilities arising out of or based upon such termination of the Hired Employees, including any severance pay obligations of any of the Motion Companies.
Appears in 1 contract
Samples: Foreclosure Purchase and Sale Agreement (Xplore Technologies Corp)
Hired Employees. The following will apply in respect of each Facility:
(a) Upon terms and conditions set by the New Operator, as described herein, the New Operator of such Facility shall offer employment to substantially all employees of the employees Operator of Kindred employed at the such Facility who, as of the Closing Date, are actively working at such Facility. A list The New Operator of such Facility shall also offer employment upon the terms and conditions set forth herein, to all such employees of Kindred working at or in connection with the Operator of such Facility who, 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 Kindred's Family and Medical Leave of Absence Policy or due to a work-related injury or illness, when and only when they return from such leave. All such employees electing to accept employment with the New Operator of such Facility are hereinafter referred to as the “"Hired Employees”". To Florida Institute and the extent permissible under the applicable Employee Plans, New Operator of such Facility shall credit defend, hold harmless and indemnify Kindred from and against any and all claims, causes of action and liability for or arising out of the failure of Florida Institute and the New Operator of such Facility to offer employment to any Kindred employees, or to hire any such employees who accept the New Operator's offer of employment, 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 Kindred's Family and Medical Leave of Absence Policy or due to a work-related injury or illness, provided that the New Operator receives notice that any such employee is on such a leave of absence. It is understood that neither Florida Institute nor the New Operators shall be responsible for any disability or workers' compensation benefits for any employees on leave of absence pursuant to Kindred's 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 service date with Kindred for purposes Employees. As to each of eligibility to participate and to vest (but not for benefit accrual purposes) under the Employee Plans in which the Hired Employees participate after Employees, the Effective Time to the extent New Operator of such service was taken into account for Facility shall recognize each such purpose by Kindred under each corresponding Employee Plan Hired Employee's original hire date and New Operator shall continue to employ each such Hired Employee for a period of no less than ninety (90) days following the Effective TimeClosing Date, unless the employment of such Hired Employee is terminated in accordance with the relevant New Operator’s 's personnel policies, or as a result of such Hired Employee’s 's resignation. Any The offer of employment and any such employment of a Hired Employee by the New Operator of such Facility 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 and at the same or equivalent position) and at a comparable base salary and similar fringe benefits as such Hired Employee enjoyed with Kindred such Facility prior to the Effective TimeClosing Date. All Hired Employees will be provided with benefit plans as described in Section 4.02 hereof. Kindred, or any of its Affiliates, shall have the right to employ or offer to employ any former employee of Kindred the Facility who declines to accept the offer of employment with the New OperatorOperator of such Facility made pursuant to Section 7.01(k) hereof. On Nothing in this Agreement shall be interpreted to require the New Operator to adopt any collective bargaining agreements, tentative agreements, or after thirty (30) days prior terms and conditions therein, entered into by Kindred, or any of its Affiliates, and any labor organization, except 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 materialsextent specifically set forth in this Agreement.
(b) New Operator acknowledges Each of Kindred and Senior Health acknowledge and agree that one purpose the provisions of Section 10.1(a4.01 (a) is are designed solely to ensure that Kindred the Operator of such Facility is not required to give notice to the employees of Kindred the Facility of the “"closure” of the Facility " thereof under the Worker Adjustment and Retraining Notification Act of 1988, as amended (the “"WARN Act”") or under any comparable state law applicable to such employeeslaw. Accordingly, Senior Health, Florida Institute and the New Operator of such Facility shall indemnify, defend and hold harmless Kindred and the Operator of such Facility for, from and against any liability which Kindred it may incur under the WARN Act or under any applicable comparable state law in the event of a violation by the New Operator of such Facility of its obligations thereunder, including a violation that results from allegations that Florida Institute or the New Operator of such Facility constructively terminated employees of Kindred the Facility as a result of the terms and conditions of employment offered by the New Operator. Further; provided, however, that nothing herein shall be construed as imposing any obligation on Florida Institute or the New Operator shall be solely liable for its own acts and omissions in connection with this transfer of operations and shall such Facility to indemnify, defend or hold harmless Kindred and hold harmless, Kindred the Operator of the Facility for, from and against any liability for such which it may incur under the WARN Act as a result of the acts or omissionsomissions of Kindred or the Operator of such Facility prior to Closing, including, but it being understood and agreed that the indemnification obligations of Florida Institute and the New Operator shall only arise if Florida Institute and such New Operator are not limited to New Operator’s failure to hire an employee or former employee as contemplated in paragraph 10.1 (a) or termination compliance with the requirements of employment of any former Kindred employeeArticle IV. Nothing in this Article X IV shall, however, create any rights in favor of any person not a party hereto, including the employees of Kindredsuch Facility, or constitute an employment agreement or condition of employment for any employee of Kindred or any Affiliate thereof who is a Hired Employee.
(c) Except as otherwise required by LawKindred shall, Kindred or shall cause the Operator of such Facility to, 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 Kindred the Facility to whom it is required to offer the same under applicable Lawlaw. Kindred acknowledges and agrees that neither Florida Institute nor any New Operator is not assuming any of Kindred’s 's or it’s its Affiliates’ ' obligations to its employees under COBRA or otherwise, except as specifically provided in this Article IV. It As of the Closing Date, all active employees of the Operator of such Facility: (i) who participate as of the Closing Date in group health insurance coverage sponsored by the Operator and (ii) who become Hired Employees after the Closing Date, shall be eligible for participation in a group health plan (as defined for purposes of Internal Revenue Code Section 4980B) established and maintained by Florida Institute or the New Operator of such Facility for the general benefit of employees and their dependents, and all such employees shall, if permissible under the plan of Florida Institute or the New Operator of such Facility, as applicable, be covered without a waiting period and without regard to any pre-existing condition unless (a) they are under a waiting period with Operator at the time of Closing, in which case they shall be required to complete their waiting period while under the group plan of Florida Institute or of the New Operator of such Facility or (b) they were subject to a pre-existing condition exclusion while under the relevant Operator's group-health plan, in which case they shall be subject to the same exclusion while in the group plan of Florida Institute or the designated New Operator of such Facility, which exclusion shall, if applicable, be subject to the same time limitation while employed by the New Operator as was applicable thereto while said employees were employed by the Operator of such Facility, with the time limit calculated from the date the same commenced while employed by such Operator. The New Operator and Kindred acknowledge and agree that it is understood the intent of this provision that neither Kindred nor its Affiliates shall be required to provide continued health coverage under ERISA or Section 4980 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, Kindred 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 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. Florida Institute or the New Operator shall not be responsible to pay any disability or workers’ compensation benefits to or for any Kindred employee who is receiving providing such benefits with respect for claims incurred and benefits earned on or after the Closing Date under and subject to the generally applicable terms and conditions of Florida Institute or the New Operator's, as applicable, employee benefit plans, programs and arrangements as amended from time to time. For purposes of this Section 4.01(c), a disability claim is "incurred" on the date the applicable medical or injury covered by Kindred’s benefit plans dental services are rendered, drugs or workers compensation policies with respect 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.
(d) Kindred agrees that the employment of the Hired Employees of such Facility will be important to an injury or disability attributable to the viability of operations at such Facility. Accordingly, Kindred agrees that for the period ending on the earlier of: (i) one (1) year after the Closing DateDate and (ii) the date of termination of the Sublease Agreement or Lease Agreement, as applicable, relating to such Facility or the purchase agreement relating to the WKTM Acquisition, it will not, and will cause its Affiliates not to, directly or indirectly solicit the employment of any of such Hired Employees nor shall it take any action to directly or indirectly interfere with their employment relationship with the New Operator of such Facility or to induce them in any manner to terminate their employment relationship with the New Operator of such Facility.
(e) Kindred or the Operator of each Facility shall be responsible for filing and providing to Hired Employees Forms W-2 and similar forms for Hired Employees for the period up through June 30, 2003. Florida Institute and/or the New Operator of such Facility shall assume the responsibility for filing and providing to Hired Employees Forms W-2 and similar forms for Hired Employees thereafter.
Appears in 1 contract
Samples: Operations Transfer Agreement (Kindred Healthcare Inc)
Hired Employees. (a) New Operator shall 19.2.1 M-I agrees that the Company will not be obligated to employ any of M-I's former or present employees; provided, however, that the Company may determine, in its sole discretion, to offer employment to substantially all the employees listed on SCHEDULE 19.2.1 (the "M-I HIRED EMPLOYEES"), and M-I will use its reasonable efforts to cause such M-I Hired Employees to make available their employment services to the Company. Employment offered to the M-I Hired Employees shall be offered on similar terms (in the aggregate) to those under which M-I employed such M-I Hired Employees as of the employees Closing; PROVIDED that, the Company is making no assurances as to the length of Kindred employed at such employment or that the Facility terms of employment are substantially similar. The Company will credit the M-I Hired Employees with service, for eligibility and vesting purposes, under the Company's employee benefits plans substantially equal to the M-I Hired Employee's service with M-I as of the Closing Date. A list Any severance obligations due to M-I Hired Employees for previous employment with M-I shall be the sole obligation and responsibility of all M-I.
19.2.2 MCA agrees that the Company will not be obligated to employ any of MCA's former or present employees; provided, however, that the Company may determine, in its sole discretion, to offer employment to the employees listed on SCHEDULE 19.2.2 (the "MCA HIRED EMPLOYEES"), and MCA will use its reasonable efforts to cause such employees of Kindred working at or MCA Hired Employees to make available their employment services to the Company. Employment offered to the MCA Hired Employees shall be offered on similar terms (in connection with the Facility aggregate) to those under which MCA employed such MCA Hired Employees as of the Closing; PROVIDED that, 20 (including each employee’s namethe Company is making no assurances as to the length of such employment or that the terms of employment are substantially similar. The Company will credit the MCA Hired Employees with service, titlefor eligibility and vesting purposes, hours worked during under the preceding twelve months, hire date and hourly rate or periodic salary) is attached Company's employee benefits plans substantially equal to the MCA Hired Employee's service with MCA 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. All such employees electing Any severance obligations due to accept MCA Hired Employees for previous employment with New Operator are hereinafter referred MCA shall be the sole obligation and responsibility of MCA.
19.2.3 The Company agrees to as provide comprehensive medical insurance benefits to the “MCA Hired Employees and M-I Hired Employees (collectively "Hired Employees”. To the extent permissible " and individually "Hired Employee") and their dependents, if applicable, which shall be determined without reference to waiting periods and "pre-existing condition" exceptions, except for those waiting periods and pre-existing conditions that were excluded under the applicable Employee PlansParty's health insurance plan. The Company agrees to credit any deductibles, New Operator shall credit co-pays and out of pocket expense maximums to the Company's medical insurance policies that provide coverage to Hired Employees service date with Kindred for and their dependents, if applicable.
19.2.4 For purposes of eligibility to participate and to vest (but not for benefit accrual purposes) under the Employee Plans in which determining each Hired Employee's unused calendar year 2003 vacation entitlement, the Hired Employees participate after the Effective Time Employee shall be deemed transferred as of close of business on June 30, 2003. The Company shall not be obligated to the extent carry-over any unused calendar year 2003 or pre-calendar year 2003 vacation entitlement nor be obligated to make any payment in lieu of such service unused vacation entitlement. If any Hired Employee, who was taken into account for each such purpose by Kindred under each corresponding Employee Plan and New Operator shall continue allowed to employ each such Hired Employee for a period of no less than ninety (90) days following the Effective Time, unless carry-over unused vacation entitlement from year-to-year while in the employment of such Hired Employee is terminated in accordance with New Operator’s personnel policiesM-I or MCA or its Affiliate, or as a result of such Hired Employee’s resignation. Any such employment of a Hired Employee by New Operator shall be on terms which require said Hired Employee to perform comparable servicesapplicable,, in a comparable position (to the extent that New Operator has the need for the same or equivalent position) and unused vacation entitlement at a comparable base salary and similar fringe benefits as such Hired Employee enjoyed with Kindred prior to the Effective Time. Kindred, or any of its Affiliates, shall have the right to employ or offer to employ any former employee of Kindred who declines to accept employment with New Operator. On or after thirty (30) days prior to the Closing Date, New OperatorM-I or MCA, upon prior notice to and coordination with Kindredas applicable, shall be entitled obligated to meet with the Facility employees and distribute employment and Employee Plan applications and materials.
(b) New Operator acknowledges that one purpose of Section 10.1(a) is to ensure that Kindred is not required to give notice to the employees of Kindred of the “closure” of the Facility under the Worker Adjustment and Retraining Notification Act of 1988, as amended (the “WARN Act”) or under any comparable state law applicable pay to such employees. Accordingly, New Operator shall indemnify, defend and hold harmless Kindred for, from and against any liability which Kindred may incur under the WARN Act or under any applicable comparable state law Hired Employee wages in the event lieu of a violation by New Operator of its obligations thereunder, including a violation that results from allegations that New Operator constructively terminated employees of Kindred as a result of the terms and conditions of employment offered by New Operator. Further, New Operator shall be solely liable for its own acts and omissions in connection with this transfer of operations and shall indemnify, defend and hold harmless, Kindred for, from and against any liability for such acts or omissions, including, but not limited to New Operator’s failure to hire an employee or former employee as contemplated in paragraph 10.1 unused carry-over vacation entitlement within ten (a10) or termination of employment of any former Kindred employee. Nothing in this Article X shall, however, create any rights in favor of any person not a party hereto, including the employees of Kindred, or constitute an employment agreement or condition of employment for any employee of Kindred or any Affiliate thereof who is a Hired Employee.
(c) Except as otherwise required by Law, Kindred 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 Kindred to whom it is required to offer the same under applicable Law. Kindred acknowledges and agrees that New Operator is not assuming any of Kindred’s or it’s Affiliates’ obligations to its employees under COBRA or otherwise. It is understood that New Operator shall not be responsible to pay any disability or workers’ compensation benefits to or for any Kindred employee who is receiving such benefits with respect to a disability or injury covered by Kindred’s benefit plans or workers compensation policies with respect to an injury or disability attributable to the period ending on days after the Closing Date.
Appears in 1 contract
Hired Employees. (ai) New Operator shall offer employment to substantially all Each employee of the employees of Kindred employed at the Facility NAME Group as of the Closing Datewill continue to be employed by the NAME Group (“Continuing Employee”). A list of all such employees of Kindred working at or Subject to the employment agreements in connection with the 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 forms attached hereto as Exhibit 10.1(a) heretoB-1 and Exhibit B-2, (the “Employment Agreements”), in no event shall the Buyer and/or the NAME Group be obligated to continue the employment of any such person. Kindred The Buyer shall provide New Operator each Continuing Employee with an updated version credit for vesting and eligibility purposes relating to their employment and benefits, including under any Employee Benefit Plans of Exhibit 10.1(a) at least five (5) Business Daysthe Buyer and for pre-Closing service as recognized by the NAME Group, but no more than fifteen (15) Business Days, prior to the Closing Date. All such employees electing to accept employment with New Operator are hereinafter referred to as the “Hired Employees”. To the extent permissible under the applicable Employee Plans, New Operator shall provided that credit Hired Employees service date with Kindred for purposes of eligibility to participate and to vest (but will not be given for benefit accrual purposes) purposes under a defined benefit pension plan or if such credit would result in duplicative benefits, and Buyer shall have no obligation to continue in effect any Employee Benefit Plans of the Employee Plans in which the Hired Employees participate NAME Group from and after the Effective Time Closing. From and after the Closing Date until the first anniversary thereof, the NAME Group shall, and Buyer shall cause the NAME Group to, (A) provide the Continuing Employees with employee benefits which are, in the aggregate, substantially the same as the employee benefits provided by the NAME Group as of the Closing, and (B) not decrease the base salary or alter the bonus plans applicable to the extent such service was taken into account Continuing Employees, in each case without the consent of the Sellers.
(ii) Notwithstanding any other provision of this Agreement to the contrary, the Parties hereby acknowledge and agree that all provisions contained in this Section 4(d) are included for each such purpose by Kindred under each corresponding Employee Plan the sole benefit of the Parties, and New Operator shall continue to employ each such Hired Employee for a period of no less than ninety that nothing in this Agreement, whether express or implied, (90i) days following the Effective Time, unless the employment of such Hired Employee is terminated in accordance with New Operator’s personnel policies, or as a result of such Hired Employee’s resignation. Any such employment of a Hired Employee by New Operator shall be on terms which require said Hired treated as an amendment or other modification of any Benefit Plan, Employee Benefit Plan, agreement or other arrangement of the Buyer or Company, (ii) shall limit the right of the Buyer to perform comparable servicesamend, in a comparable position (to the extent that New Operator has the need for the same terminate or equivalent position) and at a comparable base salary and similar fringe benefits as such Hired Employee enjoyed with Kindred prior to the Effective Time. Kindred, or otherwise modify any of its Affiliatestheir respective Employee Benefit Plans, shall have the right to employ agreements or offer to employ any former employee of Kindred who declines to accept employment with New Operator. On or after thirty (30) days prior to other arrangements following the Closing Date, New Operatoror (iii) shall create any third party beneficiary or other right (x) in any other Person, upon prior notice including, without limitation, any current or former director, officer, employee or independent contractor of the Company or any participant in any of the Buyer’s Employee Benefit Plans, agreements or other arrangements (or any dependent or beneficiary thereof) or (y) to and coordination with Kindred, shall be entitled to meet continued employment with the Facility employees and distribute employment and Employee Plan applications and materialsBuyer or its Affiliates.
(biii) New Operator acknowledges that one purpose of Section 10.1(a) is to ensure that Kindred is not required to give notice to On the employees of Kindred date hereof, each of the “closure” Sellers will execute and deliver the Employment Agreements, which such Employment Agreements shall be effective as of the Facility under the Worker Adjustment Closing and Retraining Notification Act of 1988, as amended (the “WARN Act”) or under any comparable state law applicable to such employees. Accordingly, New Operator shall indemnify, defend and hold harmless Kindred for, from and against any liability which Kindred may incur under the WARN Act or under any applicable comparable state law in the event of a violation by New Operator of its obligations thereunder, including a violation that results from allegations that New Operator constructively terminated employees of Kindred as a result of the terms and conditions of employment offered by New Operator. Further, New Operator shall be solely liable for its own acts and omissions in connection with this transfer of operations and shall indemnify, defend and hold harmless, Kindred for, from and against any liability for such acts or omissions, including, but not limited to New Operator’s failure to hire an employee or former employee as contemplated in paragraph 10.1 (a) or termination of employment of any former Kindred employee. Nothing in this Article X shall, however, create any rights in favor of any person not a party hereto, including the employees of Kindred, or constitute an employment agreement or condition of employment for any employee of Kindred or any Affiliate thereof who is a Hired Employee.
(c) Except as otherwise required by Law, Kindred 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 Kindred to whom it is required to offer the same under applicable Law. Kindred acknowledges and agrees that New Operator is not assuming any of Kindred’s or it’s Affiliates’ obligations to its employees under COBRA or otherwise. It is understood that New Operator shall not be responsible to pay any disability amended, terminated or workers’ compensation benefits to or for any Kindred employee who is receiving such benefits with respect to a disability or injury covered by Kindred’s benefit plans or workers compensation policies with respect to an injury or disability attributable to modified absent the period ending on prior written consent of the Closing DateBuyer.
Appears in 1 contract
Samples: Securities Purchase Agreement (Townsquare Media, Inc.)
