Common use of Transferred Employee Benefits Clause in Contracts

Transferred Employee Benefits. (i) Other than as set forth in this Section 7.2, Seller shall pay or cause to be paid to all Transferred Employees, all compensation to which such Transferred Employees are entitled prior to the Closing Date and Seller shall be responsible for all liabilities and obligations associated with or arising with respect to employee benefits provided by Seller, PGW, PFMC or PGC to the Transferred Employees that are due and payable prior to the Closing. (ii) Any sick leave and vacation balances accrued but unused by Transferred Employees as of the Closing Date shall not be paid out by Seller at Closing but shall be transferred with the Transferred Employees to Buyer and Buyer shall be responsible for paying such Transferred Employees for amounts due for such accrued sick leave or vacation benefits, if any, at separation from employment with Buyer in accordance with the terms of the applicable Collective Bargaining Agreement or leave policy. (iii) To the extent not otherwise provided for in the Collective Bargaining Agreement or any other applicable agreement for Transferred Employees, as of the Closing Date and for at least until May 15, 2015 (the “Continuation Period”), Buyer shall cause the Transferred Employees then-employed by Buyer to be covered by Buyer-sponsored benefit plans that provide benefits which, together with wages, are in the aggregate substantially comparable to the benefits and wages in effect for the Transferred Employees immediately prior to the Closing Date. The form and terms of any particular benefit plan offered by Buyer shall be as determined by Buyer, subject to the foregoing and to the provisions of Section 6.10(b) and this Section 7.2. (iv) For purposes of determining Buyer’s benefit plans for Transferred Employees, Buyer shall recognize the service and seniority of each of the Transferred Employees recognized by Seller, including eligibility for, vesting and accrual of, and determination of the levels of such benefits. Service shall not be recognized to the extent it would result in duplication of benefits for the same period of service. (v) If Buyer terminates the employment of any Transferred Employee within the Continuation Period, Buyer shall provide such Transferred Employee with severance benefits that are at least as generous to such Transferred Employee as the severance benefits to which such Transferred Employee would have been entitled had the employee remained covered under Seller’s severance arrangement in effect as of the date hereof and terminated employment without re-employment by a successor employer. The terms of Seller’s severance arrangement in effect as of the date hereof are set forth on Section 7.2(a)(v) of the Seller Disclosure Letter. (vi) Seller and Buyer hereby acknowledge that, for FICA and FUTA tax purposes, Buyer qualifies as a successor employer with respect to the Transferred Employees. In connection with the foregoing, the Parties agree to follow the “Alternative Procedures” set forth in Section 5 of Revenue Procedure 2004-53, 2004-2 C.B. 320. In connection with the application of the “Alternative Procedures,” (i) Seller and Buyer each shall report on a predecessor-successor basis as set forth in such Revenue Procedure, (ii) provided that Seller provides to Buyer all necessary payroll records for the calendar year that includes the Closing Date, Seller shall be relieved from furnishing Forms W-2 to employees of Seller who become employees of Buyer, and (iii) provided that Seller provides to Buyer all necessary payroll records for the calendar year that includes the Closing Date, Buyer shall assume the obligations of Seller to furnish such Forms W-2 to such employees for the full calendar year in which the Closing occurs. (vii) Seller shall facilitate the transfer to Buyer of any insurance, stop loss, third party administrator, brokerage or other agreements maintained in connection with any Employee Plan. (viii) Buyer shall take such steps to insure that there is no interruption of coverage with respect health or medical insurance benefits of any Transferred Employee.

Transferred Employee Benefits. Buyer agrees: (i) to waive any limitations regarding pre-existing conditions, waiting periods and actively at work requirements under any new health benefit plan maintained by Buyer (and/or any of its Affiliates) for the benefit of Transferred Employees to the extent such condition, period or requirement was satisfied under any existing health benefit plans in which Transferred Employees participate; and (ii) for all purposes (other than benefit accrual under a defined benefit pension plan) under all benefit plans and policies, to treat all service by Transferred Employees with any member of the Target Group before the Closing Date as service with Buyer and its Subsidiaries; and (iii) to recognize, for each Transferred Employee, any unused vacation days set forth on Section 3.2.3(a)(iii) of the Seller Disclosure Schedule that the Transferred Employee has accrued as of the Closing Date for purposes of Buyer’s vacation plan or policies. Buyer and Seller agree that (i) the Transferred Employees shall continue to participate in Seller’s medical and dental plans for the period beginning on the Closing Date and ending on (x) December 31, 2007, if the Closing occurs prior to January 1, 2008, and (y) the last day of the month in which the Closing occurs, if the Closing occurs on or after January 1, 2008, and (ii) Buyer shall reimburse Seller for the cost of providing the benefits described in clause (i) of this sentence in the amount equal to the difference between the COBRA rate for such benefits and the applicable employee premiums for such benefits. Commencing on the later of January 1, 2008, and the first day of the month following the month in which the Closing occurs, the Transferred Employees shall be eligible to participate in the medical and dental plans of Buyer on terms that are substantially comparable to the terms applicable to similarly situated employees of Buyer. With respect to the Transferred Employees, Seller agrees to amend its 401(k) plan to eliminate its last day of employment requirement with respect to the Transferred Employees for purposes of eligibility to receive any employer contributions from Seller under Seller’s 401(k) plan and Seller shall make post-Closing employer contributions to its 401(k) plan for the benefit of the Transferred Employees on a pro rata basis based on the Transferred Employees’ length of employment by Seller or its Affiliates in 2007 and in accordance with its customary process. Buyer agrees to accept rollovers from Seller’s 401(k) plan for Target Employees. Seller further agrees to 100% vest all Transferred Employees in its retirement plans including its 401(k) plan. Other than as the obligations specifically set forth in this Section 7.23.2.3, Seller Buyer shall pay or cause to be paid to all Transferred Employees, all compensation to which such Transferred Employees are entitled prior to the Closing Date and Seller shall be responsible for all liabilities and obligations associated with or arising have no liability with respect to employee payment of benefits provided by Seller, PGW, PFMC or PGC to the Transferred Employees that are due and payable prior to the Closing. (ii) Any sick leave and vacation balances accrued but unused by Transferred Employees as of the Closing Date shall not be paid out by Seller at Closing but shall be transferred with the Transferred Employees to Buyer and Buyer shall be responsible for paying such Transferred Employees for amounts due for such accrued sick leave or vacation benefits, if any, at separation from employment with Buyer in accordance with the terms of the applicable Collective Bargaining Agreement or leave policy. (iii) To the extent not otherwise provided for in the Collective Bargaining Agreement or under any other applicable agreement for Transferred Employees, as of the Closing Date and for at least until May 15, 2015 (the “Continuation Period”), Buyer shall cause the Transferred Employees then-employed by Buyer to be covered by Buyer-sponsored benefit plans that provide benefits which, together with wages, are of Seller in the aggregate substantially comparable to the benefits and wages in effect for the Transferred Employees immediately prior to the Closing Date. The form and terms of any particular benefit plan offered by Buyer shall be as determined by Buyer, subject to the foregoing and to the provisions of Section 6.10(b) and this Section 7.2. (iv) For purposes of determining Buyer’s benefit plans for Transferred Employees, Buyer shall recognize the service and seniority of each of the Transferred Employees recognized by Seller, including eligibility for, vesting and accrual of, and determination of the levels of such benefits. Service shall not be recognized to the extent it would result in duplication of benefits for the same period of service. (v) If Buyer terminates the employment of which any Transferred Employee within the Continuation Period, Buyer shall provide such Transferred Employee with severance benefits that are at least as generous to such Transferred Employee as the severance benefits to which such Transferred Employee would have been entitled had the employee remained covered under Seller’s severance arrangement in effect as of the date hereof and terminated employment without re-employment by a successor employer. The terms of Seller’s severance arrangement in effect as of the date hereof are set forth on Section 7.2(a)(v) of the Seller Disclosure Letterhas or currently participates. (vi) Seller and Buyer hereby acknowledge that, for FICA and FUTA tax purposes, Buyer qualifies as a successor employer with respect to the Transferred Employees. In connection with the foregoing, the Parties agree to follow the “Alternative Procedures” set forth in Section 5 of Revenue Procedure 2004-53, 2004-2 C.B. 320. In connection with the application of the “Alternative Procedures,” (i) Seller and Buyer each shall report on a predecessor-successor basis as set forth in such Revenue Procedure, (ii) provided that Seller provides to Buyer all necessary payroll records for the calendar year that includes the Closing Date, Seller shall be relieved from furnishing Forms W-2 to employees of Seller who become employees of Buyer, and (iii) provided that Seller provides to Buyer all necessary payroll records for the calendar year that includes the Closing Date, Buyer shall assume the obligations of Seller to furnish such Forms W-2 to such employees for the full calendar year in which the Closing occurs. (vii) Seller shall facilitate the transfer to Buyer of any insurance, stop loss, third party administrator, brokerage or other agreements maintained in connection with any Employee Plan. (viii) Buyer shall take such steps to insure that there is no interruption of coverage with respect health or medical insurance benefits of any Transferred Employee.

Transferred Employee Benefits. (ia) Other than as set forth in this Section 7.2Commencing on the Closing Date and continuing through December 31, Seller 2021 (or earlier, if the date of the employee’s termination of employment with Buyer), Buyer shall pay provide or cause to be paid provided to all each Transferred Employees, all compensation to Employee (i) base salary or hourly wages which such Transferred Employees are entitled prior to no less than the Closing Date and Seller shall be responsible for all liabilities and obligations associated with base salary or arising with respect to employee benefits hourly wages provided by Seller, PGW, PFMC or PGC to the Transferred Employees that are due and payable prior to the Closing. (ii) Any sick leave and vacation balances accrued but unused by Transferred Employees as of the Closing Date shall not be paid out by Seller at Closing but shall be transferred with the Transferred Employees to Buyer and Buyer shall be responsible for paying such Transferred Employees for amounts due for such accrued sick leave or vacation benefits, if any, at separation from employment with Buyer in accordance with the terms of the applicable Collective Bargaining Agreement or leave policy. (iii) To the extent not otherwise provided for in the Collective Bargaining Agreement or any other applicable agreement for Transferred Employees, as of the Closing Date and for at least until May 15, 2015 (the “Continuation Period”), Buyer shall cause the Transferred Employees then-employed by Buyer to be covered by Buyer-sponsored benefit plans that provide benefits which, together with wages, are in the aggregate substantially comparable to the benefits and wages in effect for the Transferred Employees immediately prior to the Closing Date, and (ii) target bonus opportunities that are substantially similar to opportunities provided to Transferred Employees by Seller prior to the Closing Date. The form Commencing on the Closing Date or mutually agreed upon date thereafter, but in no event later than January 1, 2021, and terms continuing through December 31, 2022 (or if earlier, the date of the employee’s termination of employment with Buyer), Buyer shall provide or cause to be provided coverages under employee benefit plans maintained by Buyer that are in all respects identical to or more favorable than the coverages provided to those Transferred Employees under all Employee Benefit Plans maintained by the Seller immediately before the Closing Date. Nothing in this Agreement shall be construed as requiring the Buyer to continue the employment of any particular benefit plan offered by Buyer shall be as determined by Buyer, subject to specific person. Notwithstanding the foregoing and subject to the provisions of Section 6.10(b5.10 regarding Seller liability for the Seller Retention Obligations, Buyer shall be responsible for any severance pay or other liabilities as set forth in plans or policies (listed on Exhibit D) and this Section 7.2with respect to any Transferred Employee. (ivb) For purposes of determining Buyer’s benefit plans for Transferred Employees, Buyer shall recognize cause to be provided to each Transferred Employee credit for prior service with Seller for vesting and eligibility in any defined contribution pension plans maintained or provided by the service and seniority of each of the Buyer in which such Transferred Employees recognized by Sellerare eligible to participate after the Closing Date and with respect to any waiting periods or eligibility for benefits under any employee benefit plan of Buyer; provided, including eligibility forhowever, vesting and accrual ofthat, and determination of the levels of except as expressly provided in this Section 6.04, such benefits. Service shall service need not be recognized to the extent it that such recognition would result in any duplication of benefits for the same period of service. (vc) If Buyer terminates Commencing on the employment of any Transferred Employee within the Continuation PeriodClosing Date and continuing through December 31, 2022, Buyer shall provide such maintain a vacation policy with respect to each Transferred Employee and shall credit each such individual with severance benefits that are at least as generous to such Transferred Employee as the severance benefits to which such Transferred Employee would have been entitled had the employee remained covered under Seller’s severance arrangement in effect all earned but unused vacation earned as of the date hereof and terminated employment without re-employment by a successor employer. The terms of Seller’s severance arrangement in effect as of the date hereof are set forth on Section 7.2(a)(v) of the Seller Disclosure Letter. (vi) Seller and Buyer hereby acknowledge that, for FICA and FUTA tax purposes, Buyer qualifies as a successor employer Closing Date with respect to the Transferred Employees. In connection with the foregoing, the Parties agree any period prior to follow the “Alternative Procedures” set forth in Section 5 of Revenue Procedure 2004-53, 2004-2 C.B. 320. In connection with the application of the “Alternative Procedures,” (i) Seller and Buyer each shall report on a predecessor-successor basis as set forth in such Revenue Procedure, (ii) provided that Seller provides to Buyer all necessary payroll records for the calendar year that includes the Closing Date, Seller shall be relieved from furnishing Forms W-2 as determined under any and all of the Seller’s time off policies and which provides vacation and other time off benefits to employees Transferred Employees at least as favorable as Seller’s policies as of Seller who become employees of Buyer, and (iii) provided that Seller provides to Buyer all necessary payroll records for the calendar year that includes the Closing Date, Buyer shall assume the obligations of Seller to furnish such Forms W-2 to such employees for the full calendar year in which the Closing occurs. (vii) Seller shall facilitate the transfer to Buyer of any insurance, stop loss, third party administrator, brokerage or other agreements maintained in connection with any Employee Plan. (viii) Buyer shall take such steps to insure that there is no interruption of coverage with respect health or medical insurance benefits of any Transferred Employee.