Common use of Transfer of Business Employees Clause in Contracts

Transfer of Business Employees. (i) On or prior to the Closing, the Seller shall, and shall cause other members of the Seller Group to, take such steps as are required to transfer the employment of each employee of the Seller and its Affiliates who (A) is not a Business Employee or (B) is an Inactive Employee (as defined in paragraph (iii) below) from a Transferred Entity to a member of the Seller Group, as applicable. (ii) The Purchaser and the Seller understand and intend that the Transfer Regulations will apply to each Automatic Transfer Employee, and the Purchaser shall in respect of such Automatic Transfer Employee accept the transfer of employment to the Purchaser pursuant to the Transfer Regulations. (iii) No later than ten (10) days prior to the Closing Date, the Purchaser shall offer employment, effective as of 12:01 a.m., local time, on the Closing Date (the “Transfer Time”), to all Offer Employees who on the Closing Date are actively at work (each, an “Active Offer Employee”). With respect to Offer Employees located in India and Japan, provided the Seller transfers (or agrees to transfer) any funded or unfunded accrued amounts with respect to severance or gratuity relating to such Offer Employees to Purchaser immediately following the Closing Date, the Purchaser or its applicable Affiliate shall make offers of employment that contractually honor such Offer Employees’ continuous service with the Seller. For purposes of this Agreement, any Offer Employee who is not actively at work on the Closing Date due to a short-term absence (including due to vacation, holiday, illness or injury of shorter duration than a long-term disability, jury duty, bereavement leave or short-term disability) in accordance with applicable policies of the Seller shall be deemed an Active Offer Employee. With respect to each Offer Employee who is not an Active Offer Employee as of the Closing Date (an “Inactive Employee”), the Purchaser or its applicable Affiliate (including at that date, the Transferred Entities) shall make offers of employment to each such Inactive Employee effective as of the date on which such Inactive Employee presents himself or herself to the Purchaser for active employment within twelve (12) months following the Closing Date (or eighteen (18) months following the Closing Date in the case of a workers’ compensation related absence) to the same extent, if any, as the Seller would be required to reemploy such Inactive Employee in accordance with its policies as in effect on the Closing Date and Applicable Law. The Seller agrees to promptly notify, or cause its applicable Affiliate to notify, the Purchaser upon receiving notice of an Inactive Employee’s pending return to work. The Purchaser shall provide each Offer Employee with an offer of employment and employment terms that satisfy the Purchaser’s covenants in this Section 7.05. Each Offer Employee who becomes an employee of the Purchaser by acceptance of the Purchaser’s offer of employment shall be a Transferred Employee. The Purchaser shall reimburse the Seller promptly for any payments made by Seller under a Seller Benefit Plan in respect of an Inactive Employee’s participation in such Seller Benefit Plan on or after the Closing Date and prior to the earlier of the date such Inactive Employee becomes a Transferred Employee or terminates employment with the Seller Group, in each case upon periodic billing for such amounts (including, for the avoidance of doubt, any ancillary payments or costs, such as increased premiums, that result from an Inactive Employee’s participation in a Seller Benefit Plan on or after the Closing Date). In the case of any Inactive Employee who becomes a Transferred Employee following the Closing Date, all references in this Agreement to the Transfer Time or to the Closing or the Closing Date (other than reference to the Closing Date in the immediately preceding sentence) shall be deemed to be references to 12:01 a.m. on the date that such individual becomes a Transferred Employee. Nothing herein shall be construed as a representation, warranty, covenant or guarantee by the Seller that some or all of the Business Employees will accept the offer of employment from the Purchaser. Any such offer of employment to an Offer Employee will be specifically subject to and contingent on the Closing. If the Closing does not occur, the Purchaser shall not be required to hire any of the Offer Employees and the Purchaser shall have no Liability to any of the Offer Employees. The Seller shall use commercially reasonable efforts to provide to the Purchaser any information or documents that the Purchaser may reasonably request to allow the Purchaser or its Affiliates to submit offers to Offer Employees that comply with Section 7.05(iv) within ten (10) business days following such request, including but not limited to information or documents relating to the Offer Employees’ terms of employment, pension and life assurance arrangements, health or welfare benefits, or any other matter concerning the Offer Employees’ representatives, staff associations, works councils, health and safety committees, trade unions, or labor boards, or relating to a Collective Bargaining Agreement or collective grievances, in each case, to the extent permitted under applicable Law. (iv) It is understood and agreed that (A) the expressed intention of the Purchaser to extend offers of employment as set forth in this Section 7.05 shall not constitute any commitment, Contract or understanding (express or implied) of any obligation on the part of the Purchaser to a post-Closing employment relationship of any fixed term or duration or upon any terms or conditions other than those that the Purchaser may establish pursuant to individual offers of employment, and (B) other than the Offer Employees located in India and Japan, employment offered by the Purchaser is “at will” and may be terminated by the Purchaser or by an employee at any time for any reason (subject to any written commitments to the contrary made by the Purchaser or an employee and the Law). Nothing in this Agreement shall be deemed to prevent or restrict in any way the right of the Purchaser to terminate, reassign, promote or demote any Transferred Employee after the Closing.

Transfer of Business Employees. Promptly following the date of this Agreement, but in any event no later than sixty (i60) On calendar days thereafter, Purchaser will, or prior will cause one or more of its Affiliates or designees to, offer employment to all of the Closing, the Seller shall, and shall cause other members Business Employees set forth in Section 3.16(a) of the Seller Group toDisclosure Schedules, take in each case in compliance with Section 6.2(a) below and with such steps as are required employment to transfer commence immediately upon the employment of each employee of the Closing. Seller and its Affiliates who (A) is not a will consult with Purchaser on any communications to be provided to Business Employee or (B) is an Inactive Employee (Employees as defined in paragraph (iii) below) from a Transferred Entity to a member of the date of this Agreement and prior to Closing and the Parties will mutually agree on any communications to Business Employees with regards to terms and conditions of employment following the Closing. Seller Group, as applicable. (ii) The and its Affiliates will cooperate with and use their commercially reasonable efforts to assist Purchaser and its Affiliates in their efforts to secure the transition of the relevant Business Employees to Purchaser. Without limiting the generality of the foregoing, Seller understand and intend that its Affiliates will (a) at such times as Purchaser may reasonably request after providing Seller with reasonable advance notice, cooperate with Purchaser and permit Purchaser to speak with and meet with Business Employees to discuss such Business Employees’ employment with Purchaser after the Transfer Regulations will apply Closing and (b) subject to each Automatic Transfer EmployeeSection 5.6(a), and the provide all relevant information in their possession necessary for Purchaser shall in respect of such Automatic Transfer Employee accept the transfer of to offer employment to the Purchaser pursuant to relevant Business Employees, including for the Transfer Regulations. (iii) No later than ten (10) days prior to hiring and transfer of the Closing Date, the Purchaser shall offer employment, effective as of 12:01 a.m., local time, on the Closing Date (the “Transfer Time”), to all Offer Business Employees. Business Employees who on the Closing Date are actively at work (each, an “Active Offer Employee”). With respect to Offer Employees located in India and Japan, provided the Seller transfers (or agrees to transfer) any funded or unfunded accrued amounts with respect to severance or gratuity relating to such Offer Employees to Purchaser immediately following the Closing Date, the Purchaser or its applicable Affiliate shall make accept offers of employment that contractually honor such Offer from Purchaser or an Affiliate of Purchaser are referred to as “Transferred Employees’ continuous service with the Seller”. For purposes of this Agreement, any Offer Any Business Employee who is not actively at work on the Closing Date due to a short-term absence (including due to vacation, holiday, illness disability or injury of shorter duration than a long-term disability, jury duty, bereavement other leave or short-term disability) in accordance with applicable policies of the Seller shall be deemed an Active Offer Employee. With respect to each Offer Employee who is not an Active Offer Employee as of the Closing Date and who presents themselves for work within six (an “Inactive Employee”), the Purchaser or its applicable Affiliate (including at that date, the Transferred Entities) shall make offers of employment to each such Inactive Employee effective as of the date on which such Inactive Employee presents himself or herself to the Purchaser for active employment within twelve (126) months following the Closing Date (will be offered employment with Purchaser or eighteen (18) months following the Closing Date in the case of a workers’ compensation related absence) to the same extent, if any, as the Seller would be required to reemploy such Inactive Employee any Affiliate thereof in accordance with its policies as in effect on the Closing Date and Applicable Law. The Seller agrees to promptly notify, or cause its applicable Affiliate to notify, the Purchaser upon receiving notice of an Inactive Employee’s pending return to work. The Purchaser shall provide each Offer Employee with an offer of employment and employment terms that satisfy the Purchaser’s covenants in this Section 7.05. Each Offer 6.1) upon his or her presentment for work and will become a Transferred Employee who becomes an employee as of the Purchaser by his or her date of acceptance of the Purchaser’s offer of employment shall be a Transferred Employee. The Purchaser shall reimburse the Seller promptly for any payments made by Seller under a Seller Benefit Plan in respect of an Inactive Employee’s participation in such Seller Benefit Plan on or after the Closing Date and prior to the earlier of the date such Inactive Employee becomes a Transferred Employee or terminates employment with the Seller Group, in each case upon periodic billing for such amounts (including, for the avoidance of doubt, any ancillary payments or costs, such as increased premiums, that result from an Inactive Employee’s participation in a Seller Benefit Plan on or after the Closing Date). In the case of any Inactive Employee who becomes a Transferred Employee following the Closing Date, all references in this Agreement to the Transfer Time or to the Closing or the Closing Date (other than reference to the Closing Date in the immediately preceding sentence) shall be deemed to be references to 12:01 a.m. on the date that such individual becomes a Transferred Employee. Nothing herein shall be construed as a representation, warranty, covenant or guarantee by the Seller that some or all of the Business Employees will accept the offer of employment from the Purchaser. Any such offer of employment to an Offer Employee will be specifically subject to and contingent on the Closing. If the Closing does not occur, the Purchaser shall not be required to hire any of the Offer Employees and the Purchaser shall have no Liability to any of the Offer Employees. The Seller shall use commercially reasonable efforts to provide to the Purchaser any information or documents that the Purchaser may reasonably request to allow the Purchaser or its Affiliates to submit offers to Offer Employees that comply with Section 7.05(iv) within ten (10) business days following such request, including but not limited to information or documents relating to the Offer Employees’ terms of employment, pension and life assurance arrangements, health or welfare benefits, or any other matter concerning the Offer Employees’ representatives, staff associations, works councils, health and safety committees, trade unions, or labor boards, or relating to a Collective Bargaining Agreement or collective grievances, in each case, to the extent permitted under applicable Lawoffer. (iv) It is understood and agreed that (A) the expressed intention of the Purchaser to extend offers of employment as set forth in this Section 7.05 shall not constitute any commitment, Contract or understanding (express or implied) of any obligation on the part of the Purchaser to a post-Closing employment relationship of any fixed term or duration or upon any terms or conditions other than those that the Purchaser may establish pursuant to individual offers of employment, and (B) other than the Offer Employees located in India and Japan, employment offered by the Purchaser is “at will” and may be terminated by the Purchaser or by an employee at any time for any reason (subject to any written commitments to the contrary made by the Purchaser or an employee and the Law). Nothing in this Agreement shall be deemed to prevent or restrict in any way the right of the Purchaser to terminate, reassign, promote or demote any Transferred Employee after the Closing.

Transfer of Business Employees. The parties agree that all Business Employees will be transferred to the Buyer as of the Closing Date, unless any of the Business Employees formally objects to the transfer of his or her employment (iin which case, the employment of such Business Employee shall not be transferred to the Buyer); for the avoidance of doubt, the parties acknowledge and agree that the Transaction shall be deemed a business transfer from the labor and employment perspective under Korean Law. Notwithstanding the foregoing, in lieu of being transferred to the Buyer as of the Closing Date, the Business Employees based outside of Korea may continue to be employed by the Subsidiary Transferors for a certain period after the Closing Date pursuant to the Transition Services Agreement until the Buyer has established an entity or alternative arrangement in those locations. The Buyer shall assume, and the Seller shall cause each of the Subsidiary Transferors to transfer, such Business Employees (each, a “Transferred Employee”), the list of which shall be provided by the Seller to the Buyer at least five (5) On or Business Days prior the Closing Date. The Buyer agrees to employ the Transferred Employees on the same terms and conditions as those under which the Transferred Employees are employed by the Subsidiary Transferors as of the Closing Date. The Seller agrees that prior to the Closing, the Seller shall, and or shall cause other members of the Seller Group its Subsidiary Transferors to, take such steps as are required use commercially reasonable efforts to transfer obtain written confirmations, substantially in the employment of each employee of form to be shared with the Seller and its Affiliates who (A) is not a Business Employee or (B) is an Inactive Employee (as defined Buyer in paragraph (iii) below) advance, from a the Transferred Entity to a member of the Seller Group, as applicable. (ii) The Purchaser and the Seller understand and intend that the Transfer Regulations will apply to each Automatic Transfer Employee, and the Purchaser shall in respect of such Automatic Transfer Employee accept Employees on the transfer of their employment to the Purchaser pursuant Buyer (the “Transferred Employee Confirmations”); provided that the Seller shall not be obligated to make any payment to the Transfer Regulations. (iii) No later than ten (10) days Transferred Employees in order to obtain their confirmations. The Seller shall, on or prior to the Closing Date, the Purchaser shall offer employment, effective as of 12:01 a.m., local time, on the Closing Date (the “Transfer Time”), to all Offer Employees who on the Closing Date are actively at work (each, pay each Transferred Employee an “Active Offer Employee”)M&A bonus. With respect to Offer Employees located in India and Japan, provided the Seller transfers (or agrees to transfer) any funded or unfunded accrued amounts with respect to severance or gratuity relating to such Offer Employees to Purchaser immediately Promptly following the Closing DateClosing, the Purchaser or its applicable Affiliate Buyer shall make offers of employment that contractually honor such Offer Employees’ continuous service enter into a collective bargaining agreement with the Seller. For purposes of this Agreement, any Offer Employee who is not actively at work on the Closing Date due to a short-term absence (including due to vacation, holiday, illness or injury of shorter duration than a long-term disability, jury duty, bereavement leave or short-term disability) in accordance with applicable policies new Union of the Seller shall be deemed an Active Offer Employee. With respect to each Offer Employee who Transferred Employees at the Buyer that is not an Active Offer Employee as in the form of the Closing Date (an “Inactive Employee”), the Purchaser or its applicable Affiliate (including at that date, the Transferred Entities) shall make offers of employment to each such Inactive Employee effective as of the date on which such Inactive Employee presents himself or herself to the Purchaser for active employment within twelve (12) months following the Closing Date (or eighteen (18) months following the Closing Date in the case of a workers’ compensation related absence) to the same extent, if any, as the Seller would be required to reemploy such Inactive Employee in accordance with its policies as in effect on the Closing Date new collective bargaining agreement entered into between MSK and Applicable Law. The Seller agrees to promptly notify, or cause its applicable Affiliate to notify, the Purchaser upon receiving notice of an Inactive Employee’s pending return to work. The Purchaser shall provide each Offer Employee with an offer of employment and employment terms that satisfy the Purchaser’s covenants in this Section 7.05. Each Offer Employee who becomes an employee of the Purchaser by acceptance of the Purchaser’s offer of employment shall be a Transferred Employee. The Purchaser shall reimburse the Seller promptly for any payments made by Seller under a Seller Benefit Plan in respect of an Inactive Employee’s participation in such Seller Benefit Plan on or after the Closing Date and MagnaChip Semiconductor Labor Union prior to the earlier of the date such Inactive Employee becomes a Transferred Employee or terminates employment with the Seller Group, in each case upon periodic billing for such amounts (including, for the avoidance of doubt, any ancillary payments or costs, such as increased premiums, that result from an Inactive Employee’s participation in a Seller Benefit Plan on or after the Closing Date). In the case of any Inactive Employee who becomes a Transferred Employee following the Closing Date, all references in this Agreement to the Transfer Time or to the Closing or the Closing Date (other than reference to the Closing Date in the immediately preceding sentence) shall be deemed to be references to 12:01 a.m. on the date that such individual becomes a Transferred Employee. Nothing herein shall be construed as a representation, warranty, covenant or guarantee by the Seller that some or all of the Business Employees will accept the offer of employment from the Purchaser. Any such offer of employment to an Offer Employee will be specifically subject to and contingent on the Closing. If the Closing does not occur, the Purchaser shall not be required to hire any of the Offer Employees and the Purchaser shall have no Liability to any of the Offer Employees. The Seller shall use commercially reasonable efforts to provide to the Purchaser any information or documents that the Purchaser may reasonably request to allow the Purchaser or its Affiliates to submit offers to Offer Employees that comply with Section 7.05(iv) within ten (10) business days following such request, including but not limited to information or documents relating to the Offer Employees’ terms of employment, pension and life assurance arrangements, health or welfare benefits, or any other matter concerning the Offer Employees’ representatives, staff associations, works councils, health and safety committees, trade unions, or labor boards, or relating to a Collective Bargaining Agreement or collective grievances, in each case, to the extent permitted under applicable Law. (iv) It is understood and agreed that (A) the expressed intention of the Purchaser to extend offers of employment as set forth in this Section 7.05 shall not constitute any commitment, Contract or understanding (express or implied) of any obligation on the part of the Purchaser to a post-Closing employment relationship of any fixed term or duration or upon any terms or conditions other than those that the Purchaser may establish pursuant to individual offers of employment, and (B) other than the Offer Employees located in India and Japan, employment offered by the Purchaser is “at will” and may be terminated by the Purchaser or by an employee at any time for any reason (subject to any written commitments to the contrary made by the Purchaser or an employee and the Law). Nothing in this Agreement shall be deemed to prevent or restrict in any way the right of the Purchaser to terminate, reassign, promote or demote any Transferred Employee after the Closing.

Transfer of Business Employees. (ia) On or prior to Schedule 1.9 contains a list (divided into Singapore, France and Germany) of the Closing, individuals employed by the Seller shall, and shall cause other members of the Seller Group to, take such steps as are required to transfer the employment of each employee of the Seller and or its Affiliates who (A) is not a Business Employee or (B) is an Inactive Employee (as defined in paragraph (iii) below) from a Transferred Entity to a member of the Seller Group, as applicable. (ii) The Purchaser and the Seller understand and intend that the Transfer Regulations will apply to each Automatic Transfer Employee, and the Purchaser shall in respect of such Automatic Transfer Employee accept the transfer of employment to the Purchaser pursuant to the Transfer Regulations. (iii) No later than ten (10) days Subsidiaries immediately prior to the Closing DateDate whose duties relate primarily to the operations of the Business, regardless of the company payroll on which such individuals are listed, and whose employment contracts are governed by Singapore, French or German law, respectively, hereinafter referred to as the “Singapore Business Employees,” “French Business Employees” and “German Business Employees,” respectively, and, together, the Purchaser shall offer employment“Business Employees”). Each of the Business Employees is intended to be transferred to the Buyer in accordance with the process and procedures set forth on Schedule 1.9. Schedule 1.9 also contains a list of four employees whose employment contracts are governed by German law and who could claim that their respective duties relate primarily to the operations of the Business and that they are assigned to the Business, effective as of 12:01 a.m., local time, on but with respect to whom the Closing Date Buyer has indicated that it does not wish to retain (the “Transfer Time”), to all Offer Employees who on the Closing Date are actively at work (each, an “Active Offer EmployeeExcluded GBEs”). With respect To the extent that any Business Employee or Excluded GBE is actually transferred to Offer Employees located in India and Japan, provided the Seller transfers (or agrees to transfer) any funded or unfunded accrued amounts with respect to severance or gratuity relating to such Offer Employees to Purchaser immediately following Buyer as of the Closing Date, the Purchaser such Business Employee or its applicable Affiliate shall make offers of employment that contractually honor such Offer Employees’ continuous service with the Seller. For purposes of this Agreement, any Offer Employee who is not actively at work on the Closing Date due to a short-term absence (including due to vacation, holiday, illness or injury of shorter duration than a long-term disability, jury duty, bereavement leave or short-term disability) in accordance with applicable policies of the Seller Excluded GBE shall be deemed an Active Offer referred to as a “Transferred Employee. With respect .” To the extent that any Business Employee or Excluded GBE effectively objects to each Offer Employee who is not an Active Offer Employee being transferred to the Buyer as of the Closing Date (in accordance with applicable law and is not in fact transferred to the Buyer as of the Closing Date, such Business Employee or Excluded GBE shall be referred to as an “Inactive Excluded Employee.” (b) To the extent an Excluded Liability relates to any Transferred Employee (a “Transferred Employee Liability”), the Purchaser or its applicable Affiliate (including at that date, the Transferred Entities) shall make offers of employment to each such Inactive Employee effective as of the date on which such Inactive Employee presents himself or herself to the Purchaser for active employment within twelve (12) months following the Closing Date (or eighteen (18) months following the Closing Date in the case of a workers’ compensation related absence) to the same extent, if any, as the Seller would be required to reemploy such Inactive Employee in accordance with its policies as in effect on the Closing Date and Applicable Law. The Seller agrees to promptly notifyand shall indemnify, defend and hold Buyer and its Affiliates harmless for and against any and all liabilities, burdens and obligations associated with such Transferred Employee Liability and any claim, loss, liability, damage or cause injury suffered by Buyer or any of its applicable Affiliate Affiliates relating to notify, the Purchaser upon receiving notice such Transferred Employee Liability or arising out of an Inactive Employee’s pending return to work. The Purchaser shall provide each Offer Employee with an offer of employment and employment terms that satisfy the Purchaser’s covenants in this Section 7.05. Each Offer Employee who becomes an employee of the Purchaser by acceptance of the Purchaser’s offer of employment shall be a Transferred Employee. The Purchaser shall reimburse the Seller promptly for any payments made failure by Seller under or its Subsidiaries to satisfy when due the Transferred Employee Liability. To the extent that the Buyer is required to make and makes a Seller Benefit Plan in respect of an Inactive Employee’s participation in such Seller Benefit Plan on or after the Closing Date and prior payment to the earlier of the date such Inactive Employee becomes a Transferred Employee or terminates employment with the Seller Group, in each case upon periodic billing for such amounts (including, for the avoidance of doubt, any ancillary payments or costs, such as increased premiums, Governmental Authority that result from an Inactive Employee’s participation in a Seller Benefit Plan on or after the Closing Date). In the case of any Inactive Employee who becomes constitutes a Transferred Employee following the Closing DateLiability, all references in this Agreement to the Transfer Time or to the Closing or the Closing Date (other than reference to the Closing Date in the immediately preceding sentence) shall be deemed to be references to 12:01 a.m. on the date that such individual becomes a Transferred Employee. Nothing herein shall be construed as a representation, warranty, covenant or guarantee by the Seller that some or all of shall promptly reimburse the Business Employees will accept the offer of employment from the Purchaser. Any Buyer for any such offer of employment to an Offer Employee will be specifically subject to and contingent on the Closing. If the Closing does not occur, the Purchaser shall not be required to hire any of the Offer Employees and the Purchaser shall have no Liability to any of the Offer Employees. The Seller shall use commercially reasonable efforts to provide to the Purchaser any information or documents that the Purchaser may reasonably request to allow the Purchaser amount actually paid by Buyer or its Affiliates to submit offers to Offer Employees that comply with Section 7.05(iv) within ten (10) business days following such request, including but not limited to information or documents relating to the Offer Employees’ terms of employment, pension and life assurance arrangements, health or welfare benefits, or any other matter concerning the Offer Employees’ representatives, staff associations, works councils, health and safety committees, trade unions, or labor boards, or relating to a Collective Bargaining Agreement or collective grievances, in each case, to the extent permitted under applicable LawAffiliates. (iv) It is understood and agreed that (A) the expressed intention of the Purchaser to extend offers of employment as set forth in this Section 7.05 shall not constitute any commitment, Contract or understanding (express or implied) of any obligation on the part of the Purchaser to a post-Closing employment relationship of any fixed term or duration or upon any terms or conditions other than those that the Purchaser may establish pursuant to individual offers of employment, and (B) other than the Offer Employees located in India and Japan, employment offered by the Purchaser is “at will” and may be terminated by the Purchaser or by an employee at any time for any reason (subject to any written commitments to the contrary made by the Purchaser or an employee and the Law). Nothing in this Agreement shall be deemed to prevent or restrict in any way the right of the Purchaser to terminate, reassign, promote or demote any Transferred Employee after the Closing.