EXHIBIT 2.6
EMPLOYEE SERVICES AGREEMENT
This Employee Services Agreement (this "Employee Agreement") dated as
of March 27, 2002 is entered into between Xxxxxx Acquisition Sub, Inc., a
Missouri corporation ("Xxxxxx"), and Nationwide Mutual Insurance Company, an
Ohio mutual insurance company ("Nationwide"). Xxxxxx and Nationwide are referred
to collectively herein as the "parties." Unless otherwise defined herein,
capitalized terms shall have the meaning as set forth in the Asset Purchase
Agreement.
RECITALS
WHEREAS, Xxxxxx and Gates, XxXxxxxx & Company, an Ohio corporation
("Target"), have contemporaneously herewith entered into an asset purchase
agreement (the "Asset Purchase Agreement") for the acquisition by Xxxxxx of the
Acquired Assets of Target's UCBSG Business; and
WHEREAS, certain Nationwide employees (the "Employees") currently work
in the UCBSG Business to provide services to the UCBSG Business (the "Employee
Services" as defined below); and
WHEREAS, Xxxxxx desires to retain such Nationwide employees to continue
to provide the Employee Services after the closing of the transactions
contemplated by the Asset Purchase Agreement; and
WHEREAS, Xxxxxx expects that it will take approximately ninety (90)
days after the acquisition of the UCBSG Business for Xxxxxx to integrate the
staff required to operate the UCBSG Business under Xxxxxx'x management in the
ordinary course of business in a manner consistent with Targets' (and
Nationwide's) past practices; and
WHEREAS, Nationwide desires to supply such Employee Services to Xxxxxx,
subject to the terms and conditions set forth herein, and Xxxxxx desires to
obtain such Employee Services from Nationwide.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties agree as follows:
AGREEMENT
Section 1. Scope.
Nationwide shall make available or provide, or shall cause its
Affiliates to make available and provide, to Xxxxxx, following the Closing Date
and during the period described below, the Employee Services set forth in
Exhibit 1 hereto (the "Employee Services") pursuant to the terms of this
Employee Services Agreement. Should Xxxxxx desire any other employee services
that are not included in the Employee Services, Nationwide will consider such
requests in good faith.
Section 2. Term.
The Employee Services shall be offered and provided for the period of
ninety (90) days following the Closing Date.
Section 3. Pricing.
The fee, rate or amount to be charged for the Employee Services shall
be set at the cost or price set forth in Exhibit 1 hereto.
Section 4. Payment.
Nationwide shall submit invoices for the Employee Services on a monthly
basis. Payment shall be due within thirty (30) days of receipt of an invoice.
Each invoice shall be submitted to Xxxxxx and shall detail:
o the Employee Services provided;
o the rate or charge for that service; and
o the period over which such service was provided.
In the event a dispute arises regarding any invoice:
x Xxxxxx shall pay all undisputed balances as due; and
o Disputed items shall be submitted to the mediation process
described in Section 14(b)(ii) of the Asset Purchase
Agreement.
Section 5. Status of Employees.
(a) The employees of Xxxxxx engaged in the business of Xxxxxx at the
offices of the UCBSG Business shall at all times remain employees of Xxxxxx and
shall remain subject to all rules, regulations, policies and procedures
applicable to Xxxxxx employees. No Xxxxxx employee is to be considered an
employee or agent of Nationwide, and no Xxxxxx employee shall represent himself
or herself to be an employee or agent of Nationwide.
(b) The Employees engaged in the UCBSG Business shall during the term
of this Agreement remain employees of Nationwide and shall remain subject to all
rules, regulations, policies and procedures applicable to Nationwide employees.
No Employee is to be considered an employee of Xxxxxx, however, during the term
of this Agreement, each Employee, subject to the direction of Xxxxxx, may
represent himself or herself to be an agent of Xxxxxx.
(c) It is the intent of the parties that the Employees shall at all
times during the term of this Agreement be employees of Nationwide for tax
withholding, payroll, workers compensation and benefit plan participation
purposes when providing services to Xxxxxx. Xxxxxx shall have the right to
control the performance of services by the Employees on behalf of Xxxxxx.
(d) Nationwide shall cause those Employees who appear on the attached
Exhibit 2 to perform Employee Services for Xxxxxx and Xxxxxx agrees to accept
such Employee Services pursuant to the terms and conditions of this Employee
Agreement. Exhibit 2 also lists the identities, positions, length of service and
salary of such Employees.
Section 6. Indemnification-Limitation of Liability.
(a) Nationwide shall indemnify, defend and hold harmless Xxxxxx, and
its affiliates, officers, directors, employees, agents, successors and assigns
from and against any actions, claims, demands, losses, costs, liabilities,
penalties, judgments, fees (including reasonable attorneys' fees) or obligations
(collectively "Losses"), whether actual, pending or threatened, arising out of
(i) any injuries to persons (including death) and damage to property caused by
the willful or negligent acts or omissions of Nationwide, its employees, agents,
servants or representatives; (ii) the relationship between Nationwide and its
employees, including, but not limited to, claims for compensation and benefits,
claims alleging any form of employment discrimination or relating to employment
practices, or claims arising from or related to requests for premises
modifications by or on behalf of Nationwide's employees or modifications made
with respect to Nationwide's employees, but in each case relating only to events
occurring during the period beginning upon the Closing Date up to and including
the date ninety (90) days from the Closing Date (the "Transfer Date"); (iii) any
employee benefit plans, as described in Section 3.(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") or any other type of
retirement, deferred compensation, insurance, bonus, pension, medical, stock
option or other plan maintained by Nationwide to benefit any Employees or former
employees of the Target; (iv) any fraud, misconduct, misrepresentation or other
material acts, whether by commission or omission, of any Employee or former
employee; (v) any employment, consulting, agency, dealer, sales representative,
commission or similar agreements with respect to any Employee, former employee,
agent, contractor, or other person claiming any such as to Target; and (vi) any
Environmental, Health, and Safety Laws.
(b) Xxxxxx shall indemnify, defend and hold harmless Nationwide, and
its affiliates, officers, directors, employees, agents, successors and assigns
from and against any Losses arising out of (i) any injuries to persons
(including death) and damage to property caused by the willful or negligent acts
or omissions of Xxxxxx, its employees, agents, servants or representatives
(other than Employees providing services hereunder to the extent such acts or
omissions are or are not taken at the direction of Xxxxxx);(ii) the relationship
between Xxxxxx and its employees, including, but not limited to, claims for
compensation and benefits, claims alleging any form of employment discrimination
or relating to employment practices, or claims arising from or related to events
occurring after the Transfer Date; and (iii) actions arising solely as a result
of Xxxxxx'x hiring practices and not as a result of any of Nationwide's hiring
practices.
(c) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT,
CONSEQUENTIAL, PUNITIVE (EXCEPT WITH RESPECT TO PUNITIVE DAMAGES UNDER CLAUSES
(a)(ii) through (a)(vi) or (b)(ii) ABOVE) OR INCIDENTAL DAMAGES OF ANY KIND OR
NATURE, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR DAMAGE TO OR LOSS OF
USE OF ANY PROPERTY, ANY INTERRUPTION OR LOSS OF SERVICE OR ANY LOSS OF
BUSINESS, REGARDLESS OF WHETHER SUCH DAMAGES ARE INCURRED BY, OR ASSERTED
AGAINST, EITHER PARTY.
(d) For purposes of this Section 6 only, the term "Employee" shall mean
any current or former employee of Nationwide or Target or anyone claiming to
have any status as an employee of Nationwide or Target, of whatever type or
nature.
(e) The indemnification obligation contained herein shall survive for a
period of fifteen (15) months from the Closing Date.
Section 7. Representations and Covenants of Parties With Respect to
Employees. Each of the parties hereby covenants as to itself, the following:
(a) Obligations of Nationwide and Xxxxxx With Respect to Employees.
With respect to each Employee:
(i) Nationwide shall be responsible for, and shall indemnify and hold
harmless Xxxxxx against, any actions, claims or proceedings brought by or on
behalf of any Employee, including but not limited to, wrongful termination,
breach of fiduciary duty, discrimination, sexual harassment, workers
compensation or other employment-related matter ("Employee Claims"), to the
extent, but only to the extent that such claims are based upon actions, events
or circumstances which occurred on or before the Transfer Date and are not the
result of any action of Purchaser (except that Purchaser's acquisition of the
UCBSG Business shall not constitute an action of Purchaser for purposes of this
section). Xxxxxx shall be responsible for, and shall indemnify and hold
Nationwide harmless against any Employee Claims, to the extent such claims are
based upon actions, events or circumstances which occur on or after the Transfer
Date.
(ii) Nationwide shall be responsible for all benefits provided pursuant
to all of Nationwide's Employee Benefit Plans, including, but not limited to,
deferred compensation, non-qualified and incentive plans or policies with
respect to services rendered on or before the Transfer Date.
(iii) Nationwide's welfare benefit plans shall be responsible for
welfare benefit claims relating to the Employees incurred on or prior to the
date on which such Employee's employment by Nationwide terminates (in accordance
with the terms of such plans) or during any period for which a Transferred
Employee shall elect continuation coverage of the type described in Section 601
et. seq. of ERISA and Section 4980B of the Code ("COBRA") with respect to a
"qualifying event" occurring on or before the Transfer Date, and Xxxxxx'x
welfare plans shall assume responsibility for all welfare benefit claims
relating to Transferred Employees incurred after the date on which such
employees shall become enrolled for coverage under such plans to the extent such
claim is covered by such plans.
Section 8. Miscellaneous.
(a) Term. The term of this Agreement shall commence on the Closing Date
as defined in the Asset Purchase Agreement and shall extend until and including
the day ninety (90) days after the Closing Date, except as otherwise provided
for in this Agreement, or as mutually agreed by the parties.
(b) Master Transition Services Agreement. Nothing described in this
Agreement shall affect the rights and obligations described in the Master
Transition Services Agreement.
(c) Notices. Any notice to be given or made hereunder
shall be in accordance with the notice provisions of the Master Transition
Services Agreement.
(d) Governing Law. The provisions of this agreement shall be governed
by and construed in accordance with the laws of the state of Ohio, applicable to
contracts made and to be entirely performed in said state.
(e) Counterparts. This Agreement may be signed in counterparts. Any
single counterpart or set of counterparts signed, in either case, by each of the
parties hereto shall constitute a full and original agreement for all purposes.
(f) Waiver. No failure or delay in exercising any right hereunder shall
operate as a waiver of or impair such right. No single or partial exercise of
any such right shall preclude any other or further exercise thereof or the
exercise of any other right. Any waiver must be given in writing to be
effective, and no waiver shall be deemed a waiver of any other right.
(g) Assignment. Neither this Agreement nor any interest herein may be
assigned by either party without the prior written consent of the other party,
such consent shall not be unreasonably withheld, and any unauthorized assignment
shall be void.
(h) Confidentiality. Each party acknowledges and agrees that all
information concerning the other's business is confidential and proprietary.
Each party agrees that it will not permit the disclosure or unauthorized use of
such confidential and proprietary information. "Confidential and proprietary"
information does not include information that is in the public domain at the
time of disclosure.
(i) No Third-Party Beneficiaries. Except as expressly set forth in this
Agreement, nothing in this Agreement is intended or shall be construed to give
any person, other than the parties hereto, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provisions contained
herein.
(j) Entire Agreement; Amendments. This Agreement embodies the entire
agreement of the parties with respect to the subject matter hereof, and
supersedes any agreements, representations, warranties or understandings, oral
or written, between the parties with respect to the subject matter hereof. This
Agreement may be amended or modified by the parties only by an instrument in
writing executed by the parties.
(signature page follows immediately)
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first written above.
NATIONWIDE MUTUAL INSURANCE COMPANY
By:
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Name:
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Title:
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XXXXXX ACQUISITION SUB, INC.
By:
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Name:
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Title:
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EXHIBIT 1
SEE ATTACHED EXHIBIT 1
The Registrant agrees to furnish supplementally a copy of any omitted schedule
to the Commission upon request.
EXHIBIT 2
SEE ATTACHED Schedule 5(a) LIST OF EMPLOYEES
The Registrant agrees to furnish supplementally a copy of any omitted schedule
to the Commission upon request.
