Exhibit 10.5
EMPLOYEE LEASING AGREEMENT
This EMPLOYEE LEASING AGREEMENT ("Agreement") is made and entered into this
29th day of July, 2003, by and between CPP Holdings Limited ("CPP Parent") and
CPP US Operations Group, LLC, ("CPP US") a Delaware limited liability company
(collectively, "CPP"), and Metris Companies, Inc., a Delaware corporation
("Metris").
R E C I T A L S
WHEREAS, CPP and Metris are parties to that certain Asset Purchase
Agreement dated July 29, 2003, by and among Metris, Metris Direct, Inc., Metris
Direct Services, Inc., Metris Travel Services Inc., Metris Club Services, Inc.,
Metris Warranty Services, Inc., and Metris Warranty Services of Florida, Inc.,
CPP Holdings Limited and CPP US Operations Group, LLC, (the "Asset Purchase
Agreement"), pursuant to which CPP has agreed to acquire the Purchased Assets of
the Business (as such terms are defined in the Asset Purchase Agreement).
Capitalized terms used herein without definition shall have the meaning ascribed
to such terms in the Asset Purchase Agreement.
WHEREAS, CPP US desires to utilize certain employees of the Metris and its
Affiliates (collectively, along with Metris, the "Metris Companies") to perform
work in the Business from and after the Closing for a limited period as
hereinafter provided.
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein set forth, CPP and Metris (collectively, the "Parties") agree as follows:
1. Term. This Agreement shall be effective as of the Closing and shall continue
in full force and effect through September 30, 2003 or such earlier date
specified by CPP Parent or CPP US in written notice given to Metris at least 30
days in advance of such earlier termination date (the "Term").
2. Leasing of Employees and Compensation. During the Term, Metris shall, or
shall cause the applicable Metris Company to, lease to CPP US or one or more of
its subsidiaries or entities owned or controlled by CPP US and its subsidiaries
(collectively, along with CPP Parent, the "CPP Companies") specified by CPP US
for the purpose of performing work in the Business the services of the employees
identified in Attachment A (the "Leased Employees"). In all instances, such
services shall be performed at service and performance levels consistent with
those provided to the Business prior to the beginning of the Term. During the
Term and notwithstanding anything in the Asset Purchase Agreement to the
contrary, CPP US shall compensate Metris fully for all Leased Employee wage and
benefit costs as provided in Attachment B.
3. Payroll and Benefits. The Metris Companies shall be solely responsible during
the Term for (i) paying to Leased Employees all compensation at the wage and
salary rates set forth on Attachment A (or such other rates as CPP US and Metris
may mutually agree upon from time to time) and providing to Leased Employees all
benefits pursuant to the Metris Companies' applicable employee benefit plans or
programs and as provided by law and (ii) all payroll, accounting and
administrative services associated with payment of each Leased Employee's
compensation and the administration and provision of benefits pursuant to their
employee benefit plans or programs and as provided by law. The Metris Companies
shall be solely responsible for the payment of all federal, state and local
payroll taxes, workers' compensation insurance, unemployment compensation and
social security benefits for the Leased Employees and for preparing and filing
all returns and reports concerning the Leased Employees. The Metris Companies
shall be solely responsible for obtaining and maintaining in full force and
effect during the Term workers' compensation insurance coverage for the Leased
Employees in accordance with applicable law.
4. Management. The Metris Companies' status under this Agreement shall be that
of independent contractors and the applicable Metris Company shall be at all
times during the Term the employer for all purposes of its Leased Employees. The
Leased Employees shall not be deemed to be employees of CPP Parent, CPP US or
other CPP Companies for any purpose. CPP US shall be in control of the overall
direction of the Business, and shall be solely responsible for managing the
Leased Employees and shall have the sole and exclusive right to supervise,
manage, discipline, and train the Leased Employees. In the event CPP US directs
Metris to do so, Metris shall, subject to applicable law, lay-off and discharge
Leased Employees during the Term. Metris shall not lay-off or discharge Leased
Employees during the Term other than pursuant to the express direction of CPP
Parent or CPP US. To the extent that the Leased Employees are located in any of
the Metris Companies' facilities during the Transition Period, Metris shall, and
shall cause the applicable Metris Company to, permit the applicable CPP
Company's managers into such facilities.
5. Compliance with Laws. In connection with the supervision, management,
discipline and training of the Leased Employees, CPP will comply, and will cause
CPP Company's managers, CPP employees and the Leased Employees to comply, with
applicable federal, state and local labor and employment laws, including but not
limited to laws pertaining to employment discrimination, labor relations, and
health and safety. Metris shall be responsible for maintaining time records,
payroll records, employment eligibility forms, personnel files, medical files,
workers' compensation records, unemployment compensation records, or other
documents pertaining to the Leased Employees, in accordance with applicable
federal, state and local laws and Metris, in fulfilling these obligations, shall
comply with applicable federal, state and local laws, including but not limited
to those pertaining to unemployment compensation, workers' compensation and
immigration.
6. Insurance. Metris shall maintain at all times during the Term (i) employment
practices liability insurance coverage, with limits of at least $3,000,000 per
claim, and a deductible of no more than $2,500,000 for all Leased Employees, and
(ii) comprehensive general liability insurance, including property damage
coverage and personal injury liability coverage for claims arising out of acts
or omissions of the Leased Employees occurring during the course of their
employment, with coverage of at least $1,000,000 per occurrence. Metris will
cause CPP and each of the CPP Companies for whom the Leased Employees are
performing services to be added as a "loss payee" under such policies and shall
furnish CPP with a "Certificate of Insurance" or the equivalent as proof of
coverage for each such policy. In addition, Metris shall continue to provide
Workers Compensation insurance for Leased Employee until such time as they cease
to be Metris employees at statutory limits and in accord with Metris' policies
with respect its employees who are not Leased Employees.
7. Termination. Upon expiration of the Term, CPP US shall offer, or cause one or
more of the CPP Companies to offer, employment to Leased Employees as and to the
extent required in the Asset Purchase Agreement. Metris shall cooperate in good
faith with CPP US and shall reasonably accommodate and assist CPP US in the
transition of Leased Employees who become employees of CPP US or other CPP
Company. Metris shall have no other obligation to CPP to provide services of
Leased Employees following the expiration of the Term.
8. Indemnification.
a. CPP will indemnify each of the Metris Companies against and agrees to hold it
harmless from any and all damage, loss, claim, liability and expense (including
without limitation, reasonable attorneys' fees and expenses in connection with
any claim, action, suit or proceeding brought against it) incurred or suffered
by such Metris Company arising out of:
(i) breach of this Agreement by CPP Parent, CPP US or another CPP
Company ; or
(ii) any claim for compensation or benefits by Leased Employees who
become Transferred Employees or CPP employees (or the dependents or
beneficiaries thereof) related to or arising from events following the
Term; or
(ii) any acts or omissions of a Leased Employee while a Leased
Employee or agent or contractor engaged by a CPP Company or the acts or
omissions of CPP or another CPP Company.
b. Metris will indemnify CPP Parent, CPP US and each of the CPP Companies
against and agrees to hold it harmless from any and all damage, loss, claim,
liability and expense (including without limitation, reasonable attorneys' fees
and expenses in connection with any claim, action, suit or proceeding brought
against it) incurred or suffered by CPP Parent, CPP US or other CPP Company
arising out of:
(i) breach of this Agreement by Metris;
(ii) any claim for compensation or benefits by Leased Employees (or
the dependents or beneficiaries thereof) related to or arising from events
during or preceding the Term; or
(iii) acts or omissions of a Metris Company employee, excluding Leased
Employees while Leased Employees, or an agent or contractor engaged by a
Metris Company or the acts or omissions of Metris or any other Metris
Company.
9. Controlling Law. The interpretation and enforcement of this Agreement shall
be governed by the laws of the State of Minnesota, exclusive any of rules
pertaining to choice of law.
10. Modifications. The Parties agree that the provisions of this Agreement may
not be modified by any subsequent agreement unless the modifying agreement is:
(i) in writing; (ii) specifically references this Agreement; (iii) is signed by
authorized representatives of the Parties.
11. Severability. The Parties acknowledge and agree that each provision of this
Agreement shall be enforceable independently of every other provision.
Furthermore, in the event that any provision is deemed to be unenforceable for
any reason, the remaining provisions shall remain effective, binding and
enforceable.
12. Controlling Upon Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors and
assigns. This Agreement may not be assigned by any Party, except to a wholly
controlled affiliate or wholly owned subsidiary of such Party, or with the
written permission of the other Party; such permission shall not be unreasonably
withheld.
13. Notices. Any notice or other communication between the Parties shall be in
writing and shall be deemed given when personally delivered, or twenty-four (24)
hours after being sent by Federal Express or other overnight courier service
providing delivery confirmation, or five (5) business days after mailing by
certified mail, postage prepaid, addressed as follows:
a. If to CPP:
Attn:
b. If to Metris: Metris Companies Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000 Attn:
General Counsel
14. Counterparts. This Agreement may be executed in multiple counterparts, all
of which shall constitute a single agreement.
15. Captions. The titles of the sections herein have been inserted as a matter
of convenience of reference only and shall not control or affect the meaning or
construction of any of the terms and provisions hereof. As used in this
Agreement, the plural shall include the singular and the singular shall include
the plural whenever appropriate.
16. Waivers. No waiver of any of the provisions of this Agreement shall be valid
and enforceable unless such waiver is in writing and signed by the Parties to be
charged, and, unless otherwise stated therein, no such waiver shall constitute a
waiver of any other provision hereof (whether or not similar) or a continuing
waiver.
17. Third Parties. Except as otherwise explicitly provided herein, nothing in
this Agreement, whether expressed or implied, is intended to confer any rights
or remedies under or by reason of this Agreement on any other persons other than
the Parties and their respective successors and assigns, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any
third persons to any Party, nor shall any provision give any third parties any
right of subrogation or action over or against any of the Parties hereto. This
Agreement is not intended to and does not create any third party beneficiary
rights whatsoever.
18. Relationship of the Parties. No joint venture, partnership, agency or
employment relationship is created by this Agreement. No Party shall act as an
agent or partner of any other Party or make any commitments for or create any
obligations of any other Party except as provided herein without such other
Party's prior written consent.
19. Survival. The provisions of this Agreement shall survive the expiration of
the Term and the termination of Metris' services pursuant to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and the year first above written.
CPP HOLDINGS, LIMITED
An entity organized and existing under the laws of
England and Wales
By: /s/Xxxxxx X. Xxxxxx
Title: Director
Date: July 29, 2003
CPP US OPERATING GROUP, LLC
a Delaware limited liability company
By: /s/Xxxxxx X. Xxxxxx
Title: President and CEO
Date: July 29, 2003
METRIS COMPANIES INC.
a Delaware corporation
By: /s/Xxxxx X. Xxxxxxxxx
Title: Chairman and CEO
Date: July 29, 2003
Attachment A
As described on Schedule 5.10 of the Asset Purchase Agreement
Attachment B
For services rendered to CPP by the Leased Employees during each calendar month
(or portion thereof) of the Term, CPP shall promptly pay the Metris Companies
upon invoice a monthly fee in an amount equal to the sum of the following:
1. The actual wages and salary paid by the Metris Companies to
the Leased Employees in the ordinary course of business with respect to such
services, including for holidays but excluding paid time off, with such wages
and salary to be based on the wage and salary rates set forth on Attachment A
with such modifications as CPP and Metris may mutually agree upon from time to
time;
2. The amount of paid time off accrued by Leased Employees during
such period, with such accruals to be based on the wage and salary rates set
forth in Attachment A with such modifications as CPP and Metris may mutually
agree upon from time to time.
3. Employer matching contributions due to the Metris Retirement
Plan based on 401(k) contributions deferred from wages and salary described in
item 1;
4. Severance pay and benefits paid to any Leased Employee
terminated at the request of CPP during such period specifically excluding any
severance pay or benefits payable under any Change of Control Severance
Agreement;
5. All insurance premiums paid by Metris pursuant to this
Agreement (adjusted pro-rata based on number of Leased Employees as compared to
the total number of Metris employees covered under each applicable policy of
insurance), including the employer-paid portion of premiums under any insured
welfare/workers' compensation plan or program due for such period (pro-rated if
less than a full calendar month) in respect of Leased Employees and the
employer-paid portion of claims incurred under any self-insured welfare plan or
program in respect of Leased Employees during or for such period. Claims shall
be deemed incurred for this purpose under a self-insured hospital, medical,
drug, dental or dependent care plan when the service or supply was purchased or
received, under a short-term or long-term disability plan each day during such
period for which the benefit amount is payable (pro-rated if such period is less
than a full calendar month), and under a life insurance/AD&D plan on the date of
death or dismemberment;
6. The amount of reimbursable expenses incurred during such
period by Leased Employees under the tax planning/financial planning allowance
program, take-a-taxi program, tuition assistance plan, adoption plan and
underground parking at Metris corporate headquarters program, and the amount of
the monthly perquisite allowance payable to Leased Employees for such period
(pro-rated if less than a full calendar month); and
7. The actual amount of payroll taxes imposed on and paid by the
Metris Companies during such period in respect of the above items.
For the avoidance of doubt, the monthly fee payable by CPP for Leased Employee
services shall not include any costs attributable to any other Metris Company
compensation or benefit plan or program, including the Metris Employee Stock
Purchase Plan, Supplemental Retirement Plan, Management Stock Purchase Plan,
Non-Qualified Stock Option Program and other awards under the Long-Term
Incentive and Stock Option Plan, Change of Control Severance Agreements,
Retention Bonus Program, the Annual Management Incentive of other incentive
Plans, Dell employee purchase plan, and any severance plan or program (other
than as set forth in item 4 above).
