Other Employee Plans and Benefit Arrangements. (a) On or prior to the Closing Date, Parent shall, or shall cause the Company to, establish a nonqualified deferred compensation plan that mirrors The Limited Supplemental Retirement and Deferred Compensation Plan (the "SRDCP"). Effective as of the Closing Date, and except as provided in Section 9.05(b) below, Parent shall cause the Company to (1) accept the transfer of participant account balances from the SRDCP to the mirror plan with respect to benefits payable to Covered Employees who are participants in the SRDCP as of the Closing Date, and (2) assume all obligations and liabilities attributable to the period prior to the Closing date in respect of the Covered Employees who were participants in the SRDCP as of the Closing Date. The account of each Covered Employee under the mirror plan shall be 100% vested and shall be paid to him/her by the Company and/or its Subsidiaries following the Covered Employee's termination of employment with the Company and its Subsidiaries pursuant to the terms of the mirror plan. On the Closing Date, The Limited shall provide Parent with a true and correct schedule setting forth the following information regarding each Covered Employee who is a participant in the SRDCP on the Closing Date: the name of the Covered Employee, his/her job title, and the total amount credited to his/her SRDCP account as of the Closing Date. (b) Effective as of the Closing Date, The Limited shall assume and retain all obligations and liabilities under the SRDCP including, without limitation, all obligations and liabilities attributable to the period prior to the Closing Date, with respect to benefits payable to (1) Xxxxxxx X. Xxxxxx and (2) all Company Employees who are not offered post-Closing employment by Parent, the Company or any of its Subsidiaries on or prior to the Closing Date. The SRDCP account maintained on behalf of Xx. Xxxxxx and such Company Employees shall be paid to them by The Limited, pursuant to the terms of the SRDCP. The Limited shall take any action that may be necessary and/or desirable in its sole discretion to reflect that no Termination of Employment (as defined in the SRDCP) will occur with respect to any Covered Employee as a result of consummating the transaction contemplated by this Agreement. (c) Prior to the Closing Date, neither The Limited, the Company nor any Subsidiary will establish any new employee benefit plan for the Company Employees, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion), nor will The Limited, the Company or any Subsidiary amend or modify in any material way any existing Employee Plan or Benefit Arrangement with respect to the Company, any Subsidiary or any Company Employee as to any benefit or in any other material way, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion).
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Samples: Stock Purchase Agreement (Charming Shoppes Inc), Stock Purchase Agreement (Limited Inc)
Other Employee Plans and Benefit Arrangements. (aA) On The Shareholder shall retain all obligations and liabilities under its employee benefit arrangements in respect of any employee or prior employee of the Company or its Subsidiaries (including any beneficiary or dependent thereof) who is not an Acquired Employee. In addition, the Shareholder shall retain all obligations and liabilities for continuation coverage under its employee benefits arrangements arising under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any similar federal, state or local law or regulation with respect to any employee, former employee or dependent thereof (including any dependent of an Acquired Employee but not including any Acquired Employee) which relates to any "qualifying event" as defined in Section 4980B of the Code (or any similar occurrence as defined under state or local law) that occurred on or prior to the Closing Date, Parent shall, or shall cause the Company to, establish a nonqualified deferred compensation plan that mirrors The Limited Supplemental Retirement and Deferred Compensation Plan (the "SRDCP"). Effective as of the Closing Date, and except as provided in Section 9.05(b) below, Parent shall cause the Company to (1) accept the transfer of participant account balances from the SRDCP to the mirror plan with respect to benefits payable to Covered Employees who are participants in the SRDCP as of the Closing Date, and (2) assume all obligations and liabilities attributable to the period prior to the Closing date in respect of the Covered Employees who were participants in the SRDCP as of the Closing Date. The account of each Covered Employee under the mirror plan shall be 100% vested and shall be paid to him/her by the Company and/or its Subsidiaries following the Covered Employee's termination of employment with the Company and its Subsidiaries pursuant to the terms of the mirror plan. On the Closing Date, The Limited shall provide Parent with a true and correct schedule setting forth the following information regarding each Covered Employee who is a participant in the SRDCP on the Closing Date: the name of the Covered Employee, his/her job title, and the total amount credited to his/her SRDCP account as of the Closing Date.
(bB) Effective as of With respect to Acquired Employees, the Closing Date, The Limited Shareholder shall assume and retain all obligations and liabilities relating to or arising under the SRDCP including, without limitation, all obligations and liabilities its employee benefit arrangements which are attributable to the period prior to the Closing Date, with respect to claims incurred or benefits accrued or otherwise payable to (1) Xxxxxxx X. Xxxxxx and (2) all Company Employees who are not offered post-Closing employment by Parent, the Company or any of its Subsidiaries on or prior to the Closing Date. The SRDCP account maintained on behalf of Xx. Xxxxxx and such Company Employees shall be paid liabilities retained by the Shareholder under this subsection include, but are not limited to them by The Limited, pursuant to the terms of the SRDCP. The Limited shall take any action that may be necessary and/or desirable in its sole discretion to reflect that no Termination of Employment (as defined i) in the SRDCP) will occur case of medical or dental plans, liabilities incurred with respect to any Covered Employee as a result of consummating the transaction contemplated by this Agreement.
(c) Prior services performed for Acquired Employees or their dependents on or prior to the Closing Date, neither (ii) in the case of life insurance plans, liabilities payable with respect to any person who dies on or prior to the Closing Date, (iii) in the case of workers compensation, liabilities relating to claims asserted on or prior to the Closing Date, and (iv) in the case of an Acquired Employee who, on the Closing Date, is absent by reason of short term disability and after the Closing Date becomes eligible for long term disability benefits, liabilities under the long term disability plan of the Shareholder, and liabilities under other employee benefit arrangements attributable to claims incurred or benefits accrued after such Acquired Employee has become eligible for such long term disability benefits.
(C) The LimitedBuyer shall be responsible for all claims for severance benefits or wrongful termination claims made by Acquired Employees who are discharged by the Buyer, the Company nor or any Subsidiary will establish of its Subsidiaries after the Closing Date. In addition, the Shareholder shall have no obligations with respect to any new employee benefit plan for acts or omissions of the Company Employees, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion), nor will The Limited, the Company or any Subsidiary amend or modify in any material way any existing Employee Plan or Benefit Arrangement with respect (and their respective officers, agents and employees) relating to Acquired Employees which occur after the Company, any Subsidiary or any Company Employee as to any benefit or in any other material way, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion)Closing Date.
Appears in 1 contract
Other Employee Plans and Benefit Arrangements. (a) On or prior to the Closing Date, Parent shall, or shall cause the Company to, establish a nonqualified deferred compensation plan that mirrors The Limited Supplemental Retirement and Deferred Compensation Plan (the "SRDCP"). Effective as of the Closing Date, and except as provided in Section 9.05(b) below, Parent shall cause the Company to (1) accept the transfer of participant account balances from the SRDCP to the mirror plan with respect to benefits payable to Covered Employees who are participants in the SRDCP as of the Closing Date, and (2) assume all obligations and liabilities attributable to the period prior to the Closing date in respect of the Covered Employees who were participants in the SRDCP as of the Closing Date. The account of each Covered Employee under the mirror plan shall be 100% vested and shall be paid to him/her by the Company and/or its Subsidiaries following the Covered Employee's termination of employment with the Company and its Subsidiaries pursuant to the terms of the mirror plan. On the Closing Date, The Limited shall provide Parent with a true and correct schedule setting forth the following information regarding each Covered Employee who is a participant in the SRDCP on the Closing Date: the name of the Covered Employee, his/her job title, and the total amount credited to his/her SRDCP account as of the Closing Date.
(b) Effective as of the Closing Date, The Limited Buyer will assume sponsorship of (i) all Employee Plans and Benefit Arrangements which provide post-retirement life insurance and health benefits, (ii) any and all Employee Plans and Benefit Arrangements required to be maintained under or pursuant to currently existing collective bargaining agreements, (iii) the Anchor Glass Container Corporation Executive/Key Employee Retention Plan, (iv) the Anchor Glass Container Corporation Health Care Flexible Spending Account Plan, (v) the Anchor Glass Container Corporation Dependent Care Flexible Benefits Plan, (vii) the Anchor Glass Container Medical and Dental Cafeteria Plan, (viii) the Anchor Glass Container Health Care Flexible Spending Account Plan for AFGWU Hourly Employees, (ix) the Anchor Glass Container Medical and Dental Cafeteria Plan for AFGWU and GMP Hourly Employees and (x) Seller's short-term and long-term disability plans (but Buyer may, in its sole discretion, limit participation therein to persons who are disabled as of the Closing Date and who remain continuously disabled thereafter). Buyer shall be entitled to receive from Seller, within a reasonable time after the Closing Date, such pertinent data or information as Buyer may reasonably require to determine the benefits of participants and former participants in the Employee Plans and Benefit Arrangements to be assumed by Buyer pursuant to this Section 9.02(a).
(b) Except as expressly provided in Sections 9.01 and 9.02(a), Buyer is not obligated to assume the sponsorship of any Employee Plan or Benefit Arrangement; PROVIDED that Buyer, in its sole discretion, may elect to assume the sponsorship of Employee Plans or Benefit Arrangements in addition to those subject to Sections 9.01 and retain all obligations and liabilities under the SRDCP including, without limitation, all obligations and liabilities attributable 9.02
(a) by furnishing written notice thereof to Seller not less than 15 days prior to the period Closing Date.
(c) Notwithstanding anything to the contrary, the Buyer, in its sole discretion, may direct the Seller, by written notice furnished not less than 15 days prior to the Closing Date, with respect to benefits payable to amend any or all of (1i) Xxxxxxx X. Xxxxxx the Anchor Glass Container Corporation Health Care Flexible Spending Account Plan, (ii) the Anchor Glass Container Corporation Dependent Care Flexible Spending Account Plan, (iii) the Anchor Glass Container Corporation Flexible Benefits Plan and (2iv) all Company Employees who are not offered post-Closing employment by Parentthe Anchor Glass Container Medical and Dental Cafeteria Plan, the Company in each case so as to amend, modify or any terminate, effective as of its Subsidiaries on or prior to the Closing Date. The SRDCP account maintained on behalf of Xx. Xxxxxx and such Company Employees shall be paid to them by The Limited, pursuant to the terms of the SRDCP. The Limited shall take any action that may be necessary and/or desirable in its sole discretion to reflect that no Termination of Employment (as defined in the SRDCP) will occur with respect to any Covered Employee as a result of consummating the transaction contemplated by this Agreement.
(c) Prior to the Closing Date, neither The Limited, the Company nor any Subsidiary will establish any new employee benefit plan for the Company Employees, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion), nor will The Limited, the Company or any Subsidiary amend or modify in any material way any existing Employee Plan or Benefit Arrangement with respect to the Company, any Subsidiary or any Company Employee as to any benefit or in any under such Plans other material waythan a "flexible spending account" within the meaning of Proposed Treasury Regulation 1.125-2, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretionQ+A 7(c).
Appears in 1 contract
Samples: Asset Purchase Agreement (Anchor Glass Container Corp)
Other Employee Plans and Benefit Arrangements. (a) On Buyer shall be liable for, and, where appropriate, shall cause the Company to perform:
(i) all obligations to any Transferred Employee under Seller's short-term disability and wage continuation programs;
(ii) all obligations to any Transferred Employee in respect of the continuation of coverage rules under Section 601 through 608 of ERISA and Section 4980B of the Code;
(iii) all obligations relating to any Transferred Employee in connection with applicable Worker's Compensation laws, including any such obligations relating to events that occur prior to the Closing Date;
(iv) all obligations relating to severance benefits with respect to any Transferred Employee whose employment by the Company or a Subsidiary terminates on or after the Closing Date with such severance benefits for any Transferred Employee whose employment terminates in the six month period beginning on the Closing Date being at least equal to the 48 55 benefit such Transferred Employee would have received under the Company's severance policy in effect on the Closing Date;
(v) all obligations relating to bonus and profit sharing to which each Transferred Employee is entitled for the period from January 1, 1997 through the Closing Date and vacation and personal holidays (including personal time off (PTO) days) to which each Transferred Employee is entitled as of the Closing Date; and
(vi) subject to Buyer's annual discretionary review, a payroll deduction function to continue and facilitate the purchase of insurance and the payment of premiums for such coverages for personal insurance products made available through Affiliates of the Seller to employees of the Company and its Subsidiaries as described in Benefit Arrangement Item 22 on Schedule 3.17.
(b) Seller shall retain all obligations and liabilities under the Employee Plans and Benefit Arrangements in respect of any employee or former employee or any independent contractor (including any beneficiary or dependent thereof) who is not a Transferred Employee (other than Items 23 and 24 on Schedule 3.17, which shall be the liability of the Company).
(c) With respect to Transferred Employees, Seller shall have no obligation or liability relating to or arising under the Employee Plans or Benefit Arrangements except as otherwise provided in Sections 9.01 or 9.02 and except for any liability arising under the Employee Plans or Benefit Arrangements which are attributable to events occurring on or prior to the Closing Date, Parent shallwhich Seller hereby assumes, or shall cause the Company toprovided, establish a nonqualified deferred compensation plan however, that mirrors The Limited Supplemental Retirement and Deferred Compensation Plan (the "SRDCP"). Effective as of with respect to any Transferred Employee who, on the Closing Date, is absent by reason of short-term disability or wage continuation, Buyer shall assume and except as provided in Section 9.05(b) below, Parent shall cause the Company to (1) accept the transfer of participant account balances from the SRDCP to the mirror plan with respect to benefits payable to Covered Employees who are participants in the SRDCP as of the Closing Date, and (2) assume all obligations and liabilities be liable for any payment attributable to the period prior to the Closing date in respect of the Covered Employees who were participants in the SRDCP as of the Closing Date. The account of each Covered Employee under the mirror plan shall be 100% vested and shall be paid to him/her by the Company and/or its Subsidiaries following the Covered Employee's termination of employment with the Company and its Subsidiaries pursuant to the terms of the mirror plan. On the Closing Date, The Limited shall provide Parent with a true and correct schedule setting forth the following information regarding each Covered Employee who is a participant in the SRDCP beginning on the Closing Date: the name of the Covered Employee, his/her job title, and the total amount credited to his/her SRDCP account as of the Closing Date.
(b) Effective as of the Closing Date, The Limited shall assume and retain all obligations and liabilities under the SRDCP including, without limitation, all obligations and liabilities attributable to the period prior to the Closing Date, with respect to benefits payable to (1) Xxxxxxx X. Xxxxxx and (2) all Company Employees who are not offered post-Closing employment by Parent, the Company or any of its Subsidiaries on or prior to the Closing Date. The SRDCP account maintained on behalf of Xx. Xxxxxx and such Company Employees shall be paid to them by The Limited, pursuant to the terms of the SRDCP. The Limited shall take any action that may be necessary and/or desirable in its sole discretion to reflect that no Termination of Employment (as defined in the SRDCP) will occur with respect to any Covered Employee as a result of consummating the transaction contemplated by this Agreement.
(c) Prior to the Closing Date, neither The Limited, the Company nor any Subsidiary will establish any new employee benefit plan for the Company Employees, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion), nor will The Limited, the Company or any Subsidiary amend or modify in any material way any existing Employee Plan or Benefit Arrangement with respect to the Company, any Subsidiary or any Company Employee as to any benefit or in any other material way, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion).
Appears in 1 contract
Other Employee Plans and Benefit Arrangements. (a) On Buyer shall be liable for, and, where appropriate, shall cause the Company to perform:
(i) all obligations to any Transferred Employee under Seller's short-term disability and wage continuation programs;
(ii) all obligations to any Transferred Employee in respect of the continuation of coverage rules under Section 601 through 608 of ERISA and Section 4980B of the Code;
(iii) all obligations relating to any Transferred Employee in connection with applicable Worker's Compensation laws, including any such obligations relating to events that occur prior to the Closing Date;
(iv) all obligations relating to severance benefits with respect to any Transferred Employee whose employment by the Company or a Subsidiary terminates on or after the Closing Date with such severance benefits for any Transferred Employee whose employment terminates in the six month period beginning on the Closing Date being at least equal to the benefit such Transferred Employee would have received under the Company's severance policy in effect on the Closing Date;
(v) all obligations relating to bonus and profit sharing to which each Transferred Employee is entitled for the period from January 1, 1997 through the Closing Date and vacation and personal holidays (including personal time off (PTO) days) to which each Transferred Employee is entitled as of the Closing Date; and
(vi) subject to Buyer's annual discretionary review, a payroll deduction function to continue and facilitate the purchase of insurance and the payment of premiums for such coverages for personal insurance products made available through Affiliates of the Seller to employees of the Company and its Subsidiaries as described in Benefit Arrangement Item 22 on Schedule 3.17.
(b) Seller shall retain all obligations and liabilities under the Employee Plans and Benefit Arrangements in respect of any employee or former employee or any independent contractor (including any beneficiary or dependent thereof) who is not a Transferred Employee (other than Items 23 and 24 on Schedule 3.17, which shall be the liability of the Company).
(c) With respect to Transferred Employees, Seller shall have no obligation or liability relating to or arising under the Employee Plans or Benefit Arrangements except as otherwise provided in Sections 9.01 or 9.02 and except for any liability arising under the Employee Plans or Benefit Arrangements which are attributable to events occurring on or prior to the Closing Date, Parent shallwhich Seller hereby assumes, or shall cause the Company toprovided, establish a nonqualified deferred compensation plan however, that mirrors The Limited Supplemental Retirement and Deferred Compensation Plan (the "SRDCP"). Effective as of with respect to any Transferred Employee who, on the Closing Date, is absent by reason of short-term disability or wage continuation, Buyer shall assume and except as provided in Section 9.05(b) below, Parent shall cause the Company to (1) accept the transfer of participant account balances from the SRDCP to the mirror plan with respect to benefits payable to Covered Employees who are participants in the SRDCP as of the Closing Date, and (2) assume all obligations and liabilities be liable for any payment attributable to the period prior to the Closing date in respect of the Covered Employees who were participants in the SRDCP as of the Closing Date. The account of each Covered Employee under the mirror plan shall be 100% vested and shall be paid to him/her by the Company and/or its Subsidiaries following the Covered Employee's termination of employment with the Company and its Subsidiaries pursuant to the terms of the mirror plan. On the Closing Date, The Limited shall provide Parent with a true and correct schedule setting forth the following information regarding each Covered Employee who is a participant in the SRDCP beginning on the Closing Date: the name of the Covered Employee, his/her job title, and the total amount credited to his/her SRDCP account as of the Closing Date.
(b) Effective as of the Closing Date, The Limited shall assume and retain all obligations and liabilities under the SRDCP including, without limitation, all obligations and liabilities attributable to the period prior to the Closing Date, with respect to benefits payable to (1) Xxxxxxx X. Xxxxxx and (2) all Company Employees who are not offered post-Closing employment by Parent, the Company or any of its Subsidiaries on or prior to the Closing Date. The SRDCP account maintained on behalf of Xx. Xxxxxx and such Company Employees shall be paid to them by The Limited, pursuant to the terms of the SRDCP. The Limited shall take any action that may be necessary and/or desirable in its sole discretion to reflect that no Termination of Employment (as defined in the SRDCP) will occur with respect to any Covered Employee as a result of consummating the transaction contemplated by this Agreement.
(c) Prior to the Closing Date, neither The Limited, the Company nor any Subsidiary will establish any new employee benefit plan for the Company Employees, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion), nor will The Limited, the Company or any Subsidiary amend or modify in any material way any existing Employee Plan or Benefit Arrangement with respect to the Company, any Subsidiary or any Company Employee as to any benefit or in any other material way, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion).
Appears in 1 contract
Other Employee Plans and Benefit Arrangements. (a) On or prior to the Closing Date, Parent shall, or shall cause the Company to, establish a nonqualified deferred compensation plan that mirrors The Limited Supplemental Retirement and Deferred Compensation Plan (the "SRDCP"). Effective as of the Closing Date, and except as provided in Section 9.05(b) below, Parent shall cause the Company to (1) accept the transfer of participant account balances from the SRDCP to the mirror plan with respect to benefits payable to Covered Employees who are participants in the SRDCP as of the Closing Date, and (2) assume all obligations and liabilities attributable to the period prior to the Closing date in respect of the Covered Employees who were participants in the SRDCP as of the Closing Date. The account of each Covered Employee under the mirror plan shall be 100% vested and shall be paid to him/her by the Company and/or its Subsidiaries following the Covered Employee's termination of employment with the Company and its Subsidiaries pursuant to the terms of the mirror plan. On the Closing Date, The Limited shall provide Parent with a true and correct schedule setting forth the following information regarding each Covered Employee who is a participant in the SRDCP on the Closing Date: the name of the Covered Employee, his/her job title, and the total amount credited to his/her SRDCP account as of the Closing Date.
(b) Effective as of the Closing Date, The Limited Consumers will cause New Anchor to assume sponsorship of (i) all Employee Plans and Benefit Arrangements which provide post-retirement life insurance and health benefits, (ii) any and all Employee Plans and Benefit Arrangements required to be maintained under or pursuant to currently existing collective bargaining agreements, (iii) the Anchor Glass Container Corporation Executive/Key Employee Retention Plan, (iv) the Anchor Glass Container Corporation Health Care Flexible Spending Account Plan, (v) the Anchor Glass Container Corporation Dependent Care Flexible Benefits Plan, (vi) the Anchor Glass Container Medical and Dental Cafeteria Plan, (vii) the Anchor Glass Container Health Care Flexible Spending Account Plan for AFGWU Hourly Employees, (viii) the Anchor Glass Container Medical and Dental Cafeteria Plan for AFGWU and GMP Hourly Employees and (ix) Seller's short-term and long-term disability plans (but New Anchor may, in its sole discretion, limit participation therein to persons who are disabled as of the Closing Date and who remain continuously disabled thereafter). New Anchor shall be entitled to receive from Seller, within a reasonable time after the Closing Date, such pertinent data or information as New Anchor may reasonably require to determine the benefits of participants and former participants in the Employee Plans and Benefit Arrangements to be assumed by New Anchor pursuant to this Section 9.02(a).
(b) Except as expressly provided in Sections 9.01 and 9.02
(a) neither Buyer is obligated to assume (nor is Consumers obligated to cause New Anchor to assume) the sponsorship of any Employee Plan or Benefit Arrangement; provided that either Buyer, in its sole discretion, may elect to assume (and retain all obligations Consumers may elect to cause New Anchor to assume) the sponsorship of Employee Plans or Benefit Arrangements in addition to those subject to Sections 9.01 and liabilities under the SRDCP including, without limitation, all obligations and liabilities attributable 9.02
(a) by furnishing written notice thereof to Seller not less than 15 days prior to the period Closing Date.
(c) Notwithstanding anything to the contrary, Consumers, in its sole discretion, may direct the Seller, by written notice furnished not less than 15 days prior to the Closing Date, with respect to benefits payable to amend any or all of (1i) Xxxxxxx X. Xxxxxx the Anchor Glass Container Corporation Health Care Flexible Spending Account Plan, (ii) the Anchor Glass Container Corporation Dependent Care Flexible Spending Account Plan, (iii) the Anchor Glass Container Corporation Flexible Benefits Plan and (2iv) all Company Employees who are not offered post-Closing employment by Parentthe Anchor Glass Container Medical and Dental Cafeteria Plan, the Company in each case so as to amend, modify or any terminate, effective as of its Subsidiaries on or prior to the Closing Date. The SRDCP account maintained on behalf of Xx. Xxxxxx and such Company Employees shall be paid to them by The Limited, pursuant to the terms of the SRDCP. The Limited shall take any action that may be necessary and/or desirable in its sole discretion to reflect that no Termination of Employment (as defined in the SRDCP) will occur with respect to any Covered Employee as a result of consummating the transaction contemplated by this Agreement.
(c) Prior to the Closing Date, neither The Limited, the Company nor any Subsidiary will establish any new employee benefit plan for the Company Employees, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion), nor will The Limited, the Company or any Subsidiary amend or modify in any material way any existing Employee Plan or Benefit Arrangement with respect to the Company, any Subsidiary or any Company Employee as to any benefit or in any under such Plans other material waythan a "flexible spending account" within the meaning of Proposed Treasury Regulation 1.125-2, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretionQ&A 7(c).
Appears in 1 contract
Samples: Asset Purchase Agreement (Anchor Glass Container Corp)
Other Employee Plans and Benefit Arrangements. (a) On or prior to the Closing Date, Parent shall, or Melville shall cause the Company to, establish a nonqualified deferred compensation plan that mirrors The Limited Supplemental Retirement and Deferred Compensation Plan (the "SRDCP"). Effective as of the Closing Date, and except as provided in Section 9.05(b) below, Parent shall cause the Company to (1) accept the transfer of participant account balances from the SRDCP to the mirror plan with respect to benefits payable to Covered Employees who are participants in the SRDCP as of the Closing Date, and (2) assume retain all obligations and liabilities attributable to under the period prior to the Closing date Employee Plans and Benefit Arrangements in respect of the Covered Employees any employee or prior employee (including any beneficiary or dependent thereof) who were participants in the SRDCP as of the Closing Dateis not a Transferred Employee. The account of each Covered Employee In addition, Melville shall retain all obligations and liabilities for continuation coverage under the mirror plan shall be 100% vested and shall be paid Employee Plans or Benefits Arrangements arising under the Consolidated Omnibus Budget Reconciliation Act of 1985 or any similar federal, state or local law or regulation with respect to him/her by the Company and/or its Subsidiaries following the Covered any employee, former employee or dependent thereof (including any dependent of a Transferred Employee but not including any Transferred Employee's termination of employment with the Company and its Subsidiaries pursuant ) which relates to the terms of the mirror plan. On the Closing Date, The Limited shall provide Parent with a true and correct schedule setting forth the following information regarding each Covered Employee who is a participant any "qualifying event" as defined in the SRDCP Code Section 4980B that occurred on the Closing Date: the name of the Covered Employee, his/her job title, and the total amount credited or prior to his/her SRDCP account as of the Closing Date.
(b) Effective as Subject to the provisions of Sections 11.3(e) and 11.3(f)(ii) and the Closing Datelast sentence of this Section 11.3(b), The Limited with respect to Transferred Employees, Melville shall assume and retain all obligations and liabilities relating to or arising under the SRDCP including, without limitation, all obligations and liabilities Employee Plans or Benefit Arrangements which are attributable to the period prior to the Closing Date, with respect to claims incurred or benefits accrued or otherwise payable to (1) Xxxxxxx X. Xxxxxx and (2) all Company Employees who are not offered post-Closing employment by Parent, the Company or any of its Subsidiaries on or prior to the Closing Date. The SRDCP account maintained on behalf of Xx. Xxxxxx and such Company Employees shall be paid to them by The Limited, pursuant to the terms of the SRDCP. The Limited shall take any action except that may be necessary and/or desirable in its sole discretion to reflect that no Termination of Employment (as defined in the SRDCP) will occur with respect to any Covered Transferred Employee as who, on the Closing Date, is absent by reason of Short Term Disability, Newco shall assume and be liable for any payments attributable to the period beginning on the Closing Date and ending on the date such Transferred Employee becomes eligible for Long Term Disability Benefits; provided that any liabilities of Melville pursuant to Section 11.3(a) and this Section 11.3(b) shall not be considered in preparing the Closing Balance Sheet. The liabilities retained by Melville under this subsection include, but are not limited to, (i) in the case of medical or dental plans, liabilities incurred with respect to services performed for Transferred Employees or their dependents on or prior to the Closing Date, (ii) in the case of life insurance plans, liabilities payable with respect to any person who dies on or prior to the Closing Date, (iii) in the case of workers compensation, liabilities relating to claims asserted on or prior to the Closing Date or for which Melville has agreed to indemnify the Company and its Subsidiaries under Section 7.12 and (iv) in the case of a result Transferred Employee who, on the Closing Date, is absent by reason of consummating Short Term Disability and after the transaction contemplated by this AgreementClosing Date becomes eligible for Long Term Disability Benefits, liabilities under the Melville Long Term Disability Plan and liabilities under other Employee Plans and Benefit Arrangements attributable to claims incurred or benefits accrued after such Transferred Employee has become eligible for Long Term Disability Benefits.
(c) Prior to the Closing Date, neither The Limited, the Company nor any Subsidiary will establish any new employee benefit plan Newco shall be responsible for the Company Employees, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion), nor will The Limitedall claims for severance benefits or wrongful termination claims made by Transferred Employees who are discharged by Newco, the Company or any Subsidiary amend after the Closing Date. In addition, Melville shall have no obligations with respect to any act or modify omissions of Newco, the Company or any Subsidiary and their respective officers, agents and employees relating to Transferred Employees which occur after the Closing Date. Newco shall indemnify and hold Melville harmless from any Damages with respect to, arising from or pursuant to any complaint, charge or grievance made by any such Transferred Employee with respect to any action or activities of Newco, the Company or any Subsidiary after the Closing Date. Melville shall indemnify and hold Newco, the Company and the Subsidiaries harmless from any Damages with respect to, arising from or pursuant to any complaint, charge or grievance made prior to the Closing Date by any such Transferred Employee with respect to any action or activities of Melville or any Affiliate (or with respect to claims pending as of the Closing Date that are set forth on Schedules 3.10 or 3.12, the Company or any Subsidiary) or made by any employee or former employee who is not a Transferred Employee, regardless of whether the complaint, charge or grievance or the action or activities resulting in the complaint, charge or grievance arose prior to, on or after the Closing Date.
(d) Except as otherwise provided in Section 11.2 or Sections 11.3(a), 11.3(b), 11.3(c), and 11.3(f)(ii), Melville shall have no liability or responsibility under the Employee Plans or Benefit Arrangements after the Closing Date with respect to Transferred Employees (and dependents and beneficiaries thereof). Except as provided in Section 11.3(e), Melville hereby indemnifies Newco, the Company and the Subsidiaries against and agrees to hold them harmless from any material way liabilities or claims under the Employee Plans or Benefits Arrangements (i) arising on or prior to the Closing Date with respect to Transferred Employees (and dependents and beneficiaries thereof) and (ii) with respect to any existing individual who is not a Transferred Employee or a dependent or beneficiary of a Transferred Employee, whether (in the case of clause ii of this sentence) the liability or claim arose before, on or after the Closing Date; provided, however, this sentence is subject to the provisions of Section 13.5 other than clause (ii) thereof. Melville also indemnifies Newco, the Company and the Subsidiaries against and agrees to hold them harmless from any liabilities or claims related to any plan or arrangement maintained by Melville or any Affiliate of Melville which is subject to ERISA but which is not an Employee Plan or Benefit Arrangement Arrangement, whether such liability or claim arose before, on or after the Closing Date.
(e) Subject to Section 11.3(f)(iii), Newco shall cause the Company to retain all obligations relating to bonuses, vacation and personal holidays to which each Transferred Employee is entitled as of the Closing Date under the applicable Employee Plans and Benefit Arrangements in effect on the Closing Date; provided that, except as provided in Section 11.3(f)(iii), if any amounts for bonuses in respect of employees of the Company and the Subsidiaries other than Store employees are accrued by the Company prior to Closing, such amounts shall be excluded from the calculation of Estimated Working Capital and Closing Working Capital pursuant to Article 2. Subject to the foregoing, Newco's bonus, vacation and holiday policies and practices may be made applicable to Transferred Employees for all periods after the Closing Date.
(i) The restrictions on all Melville restricted stock previously granted to the Persons listed on Schedule 11.3(f)(i) will lapse on the Closing Date and all performance goals with respect to performance-based restricted stock will be deemed to have been met on the CompanyClosing Date. The number of shares of restricted stock of Melville previously granted to each Person that has not previously vested is set forth beside such Person's name on Schedule 11.3(f)(i) and Melville will deliver to each such Person at the Closing unlegended stock certificates registered in such Person's name representing such shares.
(ii) On the first business day of the month after the Closing Date, any Subsidiary or any Melville shall pay to Xxxx Xxxxxx a lump sum amount of $2,149,282 (less applicable withholding taxes) in full settlement of his benefit entitlements under the July 1, 1995 Supplemental Retirement Plan I for Select Senior Management of Melville Corporation.
(iii) With respect to the persons listed on Schedule 11.3(f)(iii), Melville will cause the Company Employee to pay on the Closing Date the amounts shown for each such person, subject to appropriate tax withholding obligations. Such payments shall be reflected as paid immediately prior to any benefit or in any other material way, except with the written consent Closing for purposes of Buyer (which consent may be withheld in Buyer's sole discretion)calculating Estimated Working Capital and Closing Working Capital pursuant to Article 2.
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Other Employee Plans and Benefit Arrangements. (a) On Upon or prior to as soon as practicable following the Closing DateClosing, Parent Buyer shall, or shall cause the Company to, establish a nonqualified deferred compensation plan ("New Plan") that mirrors The preserves the vesting and benefit payment provisions of the Limited Brands, Inc. Supplemental Retirement Plan (As Amended and Deferred Compensation Plan Restated Effective January 1, 2002) (the "SRDCPSRP") (other than such provisions as are set forth in Section 7.1 of the SRP, which shall apply only to new deferrals made after January 1, 2003) for the individuals whose names and account balances are listed on Section 9.05(a) of the Disclosure Schedule (the "SRP Participants"). Effective Subject to Section 2.03, effective as of the Closing DateClosing, and except as provided in Section 9.05(b) below, Parent Buyer shall cause the Company to (1) accept the transfer of participant account balances from the SRDCP SRP to the mirror plan New Plan with respect to benefits payable the SRP Participants in an aggregate amount not to Covered Employees who are participants in the SRDCP as of the Closing Date, exceed $6.0 million and (2) assume all obligations and liabilities attributable to the period prior to the Closing date in respect of such SRP Participants to the Covered Employees who were participants in extent the SRDCP as amount of such obligations and liabilities does not exceed the sum of (x) $6.0 million and (y) the amount of the Final Closing Date. The account of each Covered Employee under the mirror plan shall be 100% vested and shall be Excess DC Amount paid to him/her by the Company and/or Buyer or its Subsidiaries following the Covered Employee's termination of employment with the Company and its Subsidiaries Affiliates pursuant to the terms Section 2.03. Section 9.05(a) of the mirror plan. On the Closing Date, The Limited Disclosure Schedule shall provide Parent with a true and correct schedule setting also set forth the following information regarding each Covered Employee who is a participant in the SRDCP SRP on the Closing Date: the name of the Covered Employee, his/her job title, and the total amount credited to his/her SRDCP SRP account as of the Closing DateClosing.
(b) Effective Except as of the Closing Dateprovided in (a) above, The Limited Parent shall assume and retain all obligations and liabilities under the SRDCP including, without limitation, all obligations and liabilities attributable to the period prior SRP. Prior to the Closing Date, with respect to benefits payable to (1) Xxxxxxx X. Xxxxxx and (2) all Company Employees who are not offered post-Closing employment by Parent, the Company or any of its Subsidiaries on or prior to the Closing Date. The SRDCP account maintained on behalf of Xx. Xxxxxx and such Company Employees shall be paid to them by The Limited, pursuant to the terms of the SRDCP. The Limited Parent shall take any action that all actions as may be necessary and/or desirable in its sole discretion to cause the SRP to be amended to reflect that no Termination of Employment (as defined in the SRDCPSRP) will occur with respect to any Covered Employee as a result of consummating the transaction transactions contemplated by this Agreement, which such actions shall include causing the amendment to the SRP set forth in Section 9.05(b) of the Disclosure Schedule to become effective prior to the Closing Date; and Parent and Seller hereby agree and acknowledge that Buyer's and the Company's obligations set forth in Section 9.05(a) above shall be contingent upon Parent's performance of its obligations regarding the amendment of the SRP as set forth in this Section 9.05(b).
(c) From the date hereof until the Closing Date, except as contemplated by the Transaction Documents, to the extent relating to the Company and Subsidiaries or any Covered Employee, Parent and Seller will not, and will cause the Company and Subsidiaries not to, enter into, amend, modify, renew or terminate any Employee Plan or Benefit Arrangement.
(d) Notwithstanding any other provision of this Agreement (including this Article 9 and Article 11), Parent and Seller shall indemnify and hold harmless Buyer, the Company, any Subsidiary, their ERISA Affiliates and any "fiduciary" (within the meaning of Section 3(21) of ERISA) from and against any and all claims and liabilities relating to (i) the payments to the individuals set forth on Section 9.05(d) of the Disclosure Schedule and (ii) the arrangement described in Section 9.02(a)-1 of the Disclosure Schedule.
(e) Prior to the Closing Date, neither The LimitedParent shall request and recommend to the Compensation Committee of its Board of Directors that such Committee take all actions as may be necessary to cause all stock options granted to each Covered Employee which are scheduled to vest on or prior to February 6, 2003 to be fully vested on the Closing Date and exercisable for the lesser of (x) 12 months following the Closing Date, and (y) 90 days following such Covered Employee's termination of employment with the Company.
(f) In the event that the accrued benefit obligation under the Xxxxxx Plan determined by the actuary for the Xxxxxx Plan on an ongoing basis as of November 30, 2002, using the actuarial and other assumptions currently utilized by such actuary in the actuarial valuation being prepared for the 2002 plan year, provided that such assumptions are in accordance with FAS 87 (the "ABO") exceeds the market value of the assets of the Xxxxxx Plan determined as of November 30, 2002 (the "Plan Assets"), Parent shall pay to the Company nor any Subsidiary will establish any new employee benefit plan for the Company Employees, except with the written consent of Buyer (which consent may be withheld an amount in Buyer's sole discretion), nor will The Limited, the Company or any Subsidiary amend or modify in any material way any existing Employee Plan or Benefit Arrangement with respect cash equal to the Company, any Subsidiary or any Company Employee as to any benefit or in any other material way, except with amount by which the written consent of Buyer (which consent may be withheld in Buyer's sole discretion)ABO exceeds the Plan Assets.
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Other Employee Plans and Benefit Arrangements. (a) On Buyer shall be liable for, and, where appropriate, shall cause the Company to perform:
(i) all obligations to any Transferred Employee under Seller's short-term disability and wage continuation programs;
(ii) all obligations to any Transferred Employee in respect of the continuation of coverage rules under Section 601 through 608 of ERISA and Section 4980B of the Code;
(iii) all obligations relating to any Transferred Employee in connection with applicable Worker's Compensation laws, including any such obligations relating to events that occur prior to the Closing Date;
(iv) all obligations relating to severance benefits with respect to any Transferred Employee whose employment by the Company or a Subsidiary terminates on or after the Closing Date with such severance benefits for any Transferred Employee whose employment terminates in the six month period beginning on the Closing Date being at least equal to the benefit such Transferred Employee would have received under the Company's severance policy in effect on the Closing Date;
(v) all obligations relating to bonus and profit sharing to which each Transferred Employee is entitled for the period from January 1, 1997 through the Closing Date and vacation and personal holidays (including personal time off (PTO) days) to which each Transferred Employee is entitled as of the Closing Date; and
(vi) subject to Buyer's annual discretionary review, a payroll deduction function to continue and facilitate the purchase of insurance and the payment of premiums for such coverages for personal insurance products made available through Affiliates of the Seller to employees of the Company and its Subsidiaries as described in Benefit Arrangement Item 22 on Schedule 3.17.
(b) Seller shall retain all obligations and liabilities under the Employee Plans and Benefit Arrangements in respect of any employee or former employee or any independent contractor (including any beneficiary or dependent thereof) who is not a Transferred Employee (other than Items 23 and 24 on Schedule 3.17, which shall be the liability of the Company).
(c) With respect to Transferred Employees, Seller shall have no obligation or liability relating to or arising under the Employee Plans or Benefit Arrangements except as otherwise provided in Sections 9.1 or 9.2 and except for any liability arising under the Employee Plans or Benefit Arrangements which are attributable to events occurring on or prior to the Closing Date, Parent shallwhich Seller hereby assumes, or shall cause the Company toprovided, establish a nonqualified deferred compensation plan however, that mirrors The Limited Supplemental Retirement and Deferred Compensation Plan (the "SRDCP"). Effective as of with respect to any Transferred Employee who, on the Closing Date, is absent by reason of short-term disability or wage continuation, Buyer shall assume and except as provided in Section 9.05(b) below, Parent shall cause the Company to (1) accept the transfer of participant account balances from the SRDCP to the mirror plan with respect to benefits payable to Covered Employees who are participants in the SRDCP as of the Closing Date, and (2) assume all obligations and liabilities be liable for any payment attributable to the period prior to the Closing date in respect of the Covered Employees who were participants in the SRDCP as of the Closing Date. The account of each Covered Employee under the mirror plan shall be 100% vested and shall be paid to him/her by the Company and/or its Subsidiaries following the Covered Employee's termination of employment with the Company and its Subsidiaries pursuant to the terms of the mirror plan. On the Closing Date, The Limited shall provide Parent with a true and correct schedule setting forth the following information regarding each Covered Employee who is a participant in the SRDCP beginning on the Closing Date: the name of the Covered Employee, his/her job title, and the total amount credited to his/her SRDCP account as of the Closing Date.
(b) Effective as of the Closing Date, The Limited shall assume and retain all obligations and liabilities under the SRDCP including, without limitation, all obligations and liabilities attributable to the period prior to the Closing Date, with respect to benefits payable to (1) Xxxxxxx X. Xxxxxx and (2) all Company Employees who are not offered post-Closing employment by Parent, the Company or any of its Subsidiaries on or prior to the Closing Date. The SRDCP account maintained on behalf of Xx. Xxxxxx and such Company Employees shall be paid to them by The Limited, pursuant to the terms of the SRDCP. The Limited shall take any action that may be necessary and/or desirable in its sole discretion to reflect that no Termination of Employment (as defined in the SRDCP) will occur with respect to any Covered Employee as a result of consummating the transaction contemplated by this Agreement.
(c) Prior to the Closing Date, neither The Limited, the Company nor any Subsidiary will establish any new employee benefit plan for the Company Employees, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion), nor will The Limited, the Company or any Subsidiary amend or modify in any material way any existing Employee Plan or Benefit Arrangement with respect to the Company, any Subsidiary or any Company Employee as to any benefit or in any other material way, except with the written consent of Buyer (which consent may be withheld in Buyer's sole discretion).
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