Post Closing Covenants Tax and Employee Matters Sample Clauses

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Post Closing Covenants Tax and Employee Matters 

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Related to Post Closing Covenants Tax and Employee Matters

• Post-Closing Tax Matters As a result of the Closing, the Transferor Partnership shall terminate for federal income tax purposes pursuant to Section 708(b)(1)(B) of the Code and its tax year shall close on the Closing Date. The Transferor Agent shall prepare and timely file any federal, state, local and foreign tax or information returns due after Closing that are required to be filed by or on behalf of the Transferor Partnership with respect to all tax years or periods ending on or prior to the Closing Date. The Transferor Agent shall prepare and timely file the terminating tax returns for the Transferor Partnership resulting from the consummation of the transactions contemplated under this Agreement, provided, however, that such tax returns shall be prepared in accordance with the terms and provisions of this Agreement and provided further, that prior to the filing thereof the Transferor Agent shall submit the terminating tax returns to the BRI Partnership for its review and approval, which shall not be unreasonably withheld or delayed. The BRI Partnership shall assist the Transferor Agent in obtaining such data and information regarding the Transferor Agent to permit the Transferor Partnership to prepare such returns or to respond to any audits or assessments for the periods covered by such returns.

• Post-Closing Covenants The Parties agree as follows with respect to the period following the Closing.

• Closing Covenants The Purchaser agrees with the Vendor that after closing he:

• Post-Closing Matters Execute and deliver the documents and complete the tasks set forth on Schedule 6.14, in each case within the time limits specified on such schedule, as such time limits may be extended from time to time by Agent in its reasonable discretion.

• PRE-CLOSING COVENANTS The Parties agree as follows with respect to the period between the execution of this Agreement and the Closing.

• CLOSING PROVISIONS (a) Subscriber agrees to be identified as a customer of JetBrains and agrees that JetBrains may refer to Subscriber by name, trade name and trademark, if applicable, and may briefly describe Subscriber’s business in JetBrains marketing materials, on JetBrains Site, and in public or legal documents. Subscriber hereby grants JetBrains a worldwide, non- exclusive, royalty-free license to use Subscriber’s name and any of Subscriber’s trade names and trademarks solely pursuant to this marketing section. (b) This Agreement is governed by the laws of the Czech Republic. All disputes arising from the present Agreement and/or in connection with it shall be finally brought to and decided by any relevant competent common court in the Czech Republic. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. (c) JetBrains may modify this Agreement at any time by posting a revised version of the Agreement on JetBrains Site. The modified terms will become effective upon posting of a revised version of the Agreement on JetBrains Site. By continuing to use Service after the effective date of any modification to this Agreement, Subscriber agrees to be bound by the modified terms. It is Subscriber’s responsibility to check JetBrains Site regularly for modifications to this Agreement. (d) The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship between the parties. (e) Sections 7, 8, 9, 10, 12 (c), 12(d), 14(a), 14(b), and 14(c) shall survive any termination or expiration of this Agree- ment. (f) There are no third-party beneficiaries to this Agreement. (g) If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

• Employee Matters (a) Parent hereby acknowledges that a “change of control” (or similar phrase) within the meaning of the Employee Plans, as applicable, will occur as of the Appointment Time or Effective Time, as applicable. (b) Except as provided in Section 7.2(b), from and after the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) honor all Employee Plans and compensation arrangements in accordance with their terms as in effect immediately prior to the Appointment Time, provided that nothing in this sentence shall prohibit the Surviving Corporation from amending or terminating, or from causing the Surviving Corporation to amend or terminate, any such Benefit Plans, arrangements or agreements in accordance with their terms or if otherwise required by applicable Law. As of the Effective Time, Parent shall or shall cause the Surviving Corporation to assume the Employee Plans set forth in Section 7.2(b) of the Company Disclosure Letter. (c) The Company shall take (or cause to be taken) all action necessary or appropriate to terminate, effective no later than the day immediately preceding the Appointment Time, any Employee Plan that contains a cash or deferred arrangement intended to qualify under Section 401(a) of the Code (the “401(k) Plans”), unless Parent, in its sole and absolute discretion, agrees to sponsor and maintain any such 401(k) Plan by providing the Company with written notice of such election (an “Election Notice”) at least three days before the Appointment Time. Unless Parent timely provides an Election Notice to the Company, the Company shall deliver to Parent, prior to the Appointment Time, evidence that the Company’s board of directors has validly adopted resolutions to terminate the 401(k) Plans (the form and substance of which resolutions shall be subject to review and approval of Parent), effective no later than the date immediately preceding the Appointment Time. Parent shall cause a plan intended to qualify under Section 401(k) of the Code (the “Parent 401(k) Plan”) to accept rollovers (including rollover loans) from any 401(k) plan of the Company. (d) For a period of one year following the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) provide (i) at least the same level of base salary or base wages to each Continuing Employee as the base salary or base wages provided to each such Continuing Employee immediately prior to the Effective Time, and (ii) benefits and severance payments (other than equity based benefits, change in control benefits and individual employment agreements) to each Continuing Employee employed in the United States that, taken as a whole, are substantially similar in the aggregate to the benefits and severance payments (other than equity based benefits, change in control benefits and individual employment agreements) provided to similarly situated employees of Parent and its Subsidiaries. Parent agrees that it shall cause the Surviving Corporation to pay an annual cash bonus to each participant in an annual cash bonus plan of the Company as of the Effective Time (excluding, for avoidance of doubt, sales and commission plans) equal to the amount determined by (i) determining the annual cash bonus that would have been paid to such participant based on deemed performance for the fiscal year ending March 31, 2011 using the rate of accrual for purposes of the Company’s financial statements as of immediately prior to the date of this Agreement and (ii) multiplying the number determined pursuant to clause (i) by 0.8356 (i.e., 305/365), with the resulting amount reduced by any portion of such annual bonus previously paid to the participant. Such bonus will be paid in February 2011 subject to the participant’s continued employment through January 31, 2011. (e) To the extent that an Employee Plan or employee benefit plan of Parent is made available to any Continuing Employee on or following the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) cause to be granted to such Continuing Employee credit for all service with the Company and its Subsidiaries (and their predecessors) prior to the Effective Time for purposes of eligibility to participate, vesting and entitlement to benefits where length of service is relevant (including, but not limited to, for purposes of vacation, sick and paid time off accrual and severance pay entitlement); provided, however, that such service need not be credited (i) to the extent that it would result in duplication of coverage or benefits or (ii) under any new plan or arrangement to the extent that such plan or arrangement does not provide prior service credit to employees generally. In addition, and without limiting the generality of the foregoing, at the Effective Time: (i) each Continuing Employee shall be immediately eligible to participate, without any waiting time, in any and all employee benefit plans sponsored by the Surviving Corporation and its Subsidiaries (other than the Employee Plans) (such plans, collectively, the “New Plans”) to the extent coverage under any such New Plan replaces coverage under a comparable Employee Plan in which such Continuing Employee participates immediately before the Appointment Time (such plans, collectively, the “Old Plans”); and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical, vision and/or disability benefits to any Continuing Employee, the Surviving Corporation shall cause all waiting periods, pre-existing condition exclusions, evidence of insurability requirements and actively-at-work or similar requirements of such New Plan to be waived for such Continuing Employee and his or her covered dependents, and the Surviving Corporation shall cause any eligible expenses incurred by such Continuing Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee’s participation in the corresponding New Plan begins to be given full credit under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan, and (iii) the Surviving Corporation shall credit the accounts of such Continuing Employees under any New Plan which is a flexible spending plan with any unused balance in the account of such Continuing Employee under the applicable Employee Plan. Any vacation or paid time off accrued but unused by a Continuing Employee as of immediately prior to the Effective Time shall be credited to such Continuing Employee following the Effective Time, and shall not be subject to accrual limits or other forfeiture and shall not limit future accruals. (f) Notwithstanding anything to the contrary set forth in this Agreement, no provision of this Agreement shall be deemed to (i) guarantee employment for any period of time for, or preclude the ability of Parent or the Surviving Corporation to terminate, any Continuing Employee for any reason, or (ii) subject to the limitations and requirements specifically set forth in this Section 7.2, require Parent or the Surviving Corporation to continue any Employee Plan or prevent the amendment, modification or termination thereof after the Effective Time. (g) This Section 7.2 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 7.2, expressed or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 7.2. Without limiting the foregoing, no provision of this Section 7.2 will create any third party beneficiary rights in any current or former employee, director or consultant of the Company or any of its Subsidiaries in respect of continued employment (or resumed employment) or any other matter. (h) Effective as of immediately prior to, and contingent upon, the Appointment Time, the Company shall cause to be amended each outstanding Company RSU, Company Option and Company Restricted Stock Award to provide that, if upon or within twelve (12) months following the Appointment Time, the employment or service of the holder of any such Company RSU, Company Option and/or Company Restricted Stock Award is terminated by the Company or the Parent (or any employing parent or subsidiary thereof) by reason of elimination of the holder’s position due to redundancy or integration of Parent and Company business units (but, for avoidance of doubt, excluding terminations for death, “Disability,” “Serious Misconduct,” or “Poor Performance,” (as such terms are defined in Section 7.2(h) of the Company Disclosure Letter), then one hundred percent (100%) of the then unvested shares subject to such Company RSU, Company Option and/or Company Restricted Stock Award shall become immediately vested and, if applicable, exercisable.

• Post-Closing Covenant The Borrower shall (1) deliver each of the documents and other items, and perform each of the actions, listed on Schedule 4.03 hereto, in each case no later than the corresponding latest date specified thereon for each such delivery or other action (or such later date as the Administrative Agent shall determine in its sole discretion, without any requirement for Lender consent), and (2) no later than 90 days following the Closing Date (or such later date as the Administrative Agent shall determine in its sole discretion, without any requirement for Lender consent), furnish to the Administrative Agent: (a) evidence that mortgage amendments, supplements and restatements in form and substance reasonably satisfactory to the Collateral Agent (the “Mortgage Amendments”) with respect to each of the existing Mortgages have been duly executed, acknowledged and delivered by a duly authorized officer of the applicable Loan Party thereto on or before such date and are in form suitable for filing and recording in all filing or recording offices that the Collateral Agent may deem reasonably necessary or desirable; provided, however, Collateral Agent shall not require any opinions of local counsel that the Mortgage Amendments meet the conditions of this provision; (b) (i) date-down and modification endorsements to the title insurance policy issued in connection with each Mortgage or, where such date-down or modification endorsements are not available with respect to any Mortgage Amendment, a new title insurance policy with respect to the applicable Mortgage, as previously amended and as amended by such Mortgage Amendment, (or, in each case, a commitment to issue such endorsements or new policy having the effect of such policy so endorsed or such a new policy, as the case may be), each issued by a nationally recognized title insurance company and each in form and substance reasonably satisfactory to the Collateral Agent which insure that such Mortgage, as previously amended and as amended by the applicable Mortgage Amendment, continues to create a valid first Lien on the applicable Mortgaged Property described therein, free of any other Liens except Permitted Liens, and (ii) evidence satisfactory to the Collateral Agent that all certificates and affidavits reasonably required by the Collateral Agent and/or the title company issuing the endorsements and/or title policies referenced above and relating to the Borrower, the Mortgages, the Mortgage Amendments and/or title endorsements (or if applicable, to such new title policies) have been delivered; and (c) evidence that all fees, costs and expenses have been paid in connection with the preparation, execution, filing and recordation of the Mortgage Amendments, including, without limitation, reasonable attorneys’ fees, filing and recording fees, title insurance company coordination fees, title insurance premiums, documentary stamp, mortgage and intangible taxes and title search charges and other charges incurred in connection with the recordation of the 113 QDI – A&R Credit Agreement (2014) Mortgage Amendments (it being agreed that the Administrative Agent shall cooperate as reasonably requested by the Borrower to minimize such amounts payable by the Borrower, so long as such cooperation is not inconsistent with the foregoing provisions of this paragraph (c)).

• Closing Matters (a) Within one business day of the date of this Agreement, Buyer shall deliver the notice attached as Annex I hereto to Continental. (b) Prior to the Closing, Seller shall deliver or cause to be delivered to Buyer appropriate instructions for book entry transfers of ownership of the Shares from Seller to Buyer. (c) The closing of the purchase and sale of the Shares (“Closing”) will occur not later than the first to occur of (i) the first date any funds are disbursed from the Trust Account, except if the Extension is approved, for disbursements to Buyer’s shareholders who exercise their Conversion Rights on or prior to February 12, 2010, (ii) February 18, 2010 if the Extension is not approved, (iii) the fifth business day after the Merger is abandoned, (iv) the third business day after the Merger is not approved by Buyer’s shareholders and (v) February 22, 2010 as such date may be adjourned pursuant to the Escrow Agreement described in Section 6(n) (the “Closing Date”). At the Closing, Buyer and Migami shall pay Seller the Aggregate Purchase Price and the cash portion of the Fees by wire transfer. Payments from the Buyer to the Seller shall be made from the Trust Account in immediately available funds in accordance with the Irrevocable Instructions attached as Annex I hereto to an account specified by Seller and Seller shall deliver the Shares immediately thereafter to Buyer electronically using the Depository Trust Company’s DWAC (Deposit/Withdrawal at Custodian) System to an account specified by Buyer. Notwithstanding anything herein or in the Irrevocable Instructions to the contrary, if the Merger is not consummated, Buyer shall not be obligated to pay the Seller for each Share more than the pro rata amount held in the Trust Account at the time of Buyer’s liquidation for each such Share. (d) In the event that Seller has not received the Aggregate Purchase Price on a timely basis on the Closing Date, then Migami shall pay to Seller in immediately available funds an amount equal to the lesser of (i) 1.0% total amount of, or (ii) the highest lawful rate of, the total Purchase Price Per Share paid by Seller for all of the Shares calculated from the date such payment was required to be made through the date such payment is actually made. (e) Upon the execution of this Agreement, Buyer will deliver to the Investor a legal opinion from Buyer’s counsel in the form annexed hereto as Annex II.

• Pre-Closing Tax Returns From and after the Closing, Peabody shall prepare or cause to be prepared all Tax returns required to be filed by the Peabody Transferred Subsidiaries or, other than Tax returns related to Income Taxes, with respect to the Peabody Contributed Assets for any Pre-Closing Tax Period (the “Peabody Prepared Returns”), and Arch shall prepare or cause to be prepared all Tax returns required to be filed by the Arch Transferred Subsidiaries or, other than Tax returns related to Income Taxes, with respect to the Arch Contributed Assets for any Pre-Closing Tax Period (the “Arch Prepared Returns”). Except as otherwise required by applicable Law, each of Peabody and Arch shall prepare such Tax returns in accordance with past practice. Peabody and Arch shall each deliver to the JV Company all Peabody Prepared Returns and Arch Prepared Returns, together with all supporting documentation, no later than ten days prior to the due date for filing such Tax return, and, if any Peabody Prepared Return or any Arch Prepared Return would reasonably be expected to result in or otherwise affect material Taxes of any JV Entity in any Post-Closing Taxable Period, Peabody or Arch, as the case may be, shall also deliver such Tax return, together with all supporting documentation to Arch or Peabody, as the case may be, no later than ten days prior to the due date for filing such Tax return, for review and reasonable comment by the JV Company and Arch or Peabody, as the case may be, and the party filing such Tax return shall incorporate any reasonable comments received no later than five days prior to the due date for filing such Tax return. Peabody and Arch shall use commercially reasonable efforts to determine which of Peabody, Arch or the JV Company shall file such Tax return. If after complying with the immediately preceding sentence in good faith, Peabody and Arch are unable to agree on which of Peabody, Arch or the JV Company is responsible for filing such Tax return, then the JV Company shall be responsible for filing such Tax return. If the JV Company files any Tax return pursuant to this Section 6.21(a)(i) and if such Tax return shows Taxes as due and owing, Peabody or Arch, as applicable, shall pay the amount of Contributor Taxes with respect to such Tax return to the JV Company no later than the due date for filing such Tax return and the JV Company shall remit such Taxes to the applicable Governmental Authority. If either Peabody or Arch files any Tax return pursuant to this Section 6.21(a)(i), such Tax return shows Taxes as due and owing, and such Taxes were specifically included in Peabody Net Working Capital or Arch Net Working Capital, as the case may be, as finally determined pursuant to Section 3.5(c), then the JV Company shall pay the amount of such identified Taxes to Peabody or Arch no later than the due date for filing such Tax return and Peabody or Arch, as the case may be, shall remit such Taxes to the applicable Governmental Authority.