Exhibit 10.5
EMPLOYEE LEASING AGREEMENT
This Employee Leasing Agreement (the "Agreement"), is made effective as
of November 22, 2002, by and between United States Filter Corporation, a
Delaware corporation ("USFILTER"), U.S. Filter Distribution Group, Inc., a
Georgia corporation ("DISTRIBUTION"), and Blue Acquisition Corp., a Delaware
corporation ("BUYER").
RECITALS
A. USFilter, Distribution and Buyer are parties to an Asset Purchase
Agreement dated as of September 12, 2002 (the "ASSET PURCHASE AGREEMENT"),
pursuant to which Distribution has sold and transferred to Buyer substantially
all of Distribution's assets and liabilities; and
B. In connection with the transactions contemplated by the Asset
Purchase Agreement, Distribution has agreed to continue to employ the
individuals employed by Distribution as of the Closing ("DISTRIBUTION
EMPLOYEES") for a specified period following the Closing and to lease the
Distribution Employees to Buyer for such period; and Distribution and USFilter
have agreed to continue to provide benefits to the Distribution Employees for
such period, all in accordance with and subject to the limitations contained in
this Agreement.
AGREEMENT
SECTION 1. DEFINITIONS. All capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Asset Purchase Agreement.
SECTION 2. LEASING OF DISTRIBUTION EMPLOYEES. During the period
beginning on the Closing Date and ending on the date on which this Agreement
terminates pursuant to Section 18 (the "TRANSITION PERIOD"), Distribution shall,
subject to Section 5, continue to employ the Distribution Employees and shall
make available the Distribution Employees to the Buyer for the purpose of
providing for the benefit of the Buyer, on the terms set forth herein, such
services as the Buyer may reasonably require from time to time to operate the
Business. All Distribution Employees shall for all purposes be employees of
Distribution prior to the last day of the Transition Period. Notwithstanding the
foregoing, Distribution shall have no obligation to ensure the continued
employment of any Distribution Employee following the Closing Date, and
Distribution shall be obligated to make available to Buyer during the Transition
Period only the services of those Distribution Employees who remain employed by
Distribution during the Transition Period. Distribution shall have no obligation
to replace any Distribution Employee whose employment terminates during the
Transition Period.
SECTION 3. PAYROLL.
(a) The amount of Payroll to be paid by Distribution in respect of a
Distribution Employee shall be determined using the same rates and employment
terms as were in effect with respect to such Distribution Employee immediately
prior to the Closing Date or as subsequently
modified by Distribution in accordance with existing payroll administration
procedures or applicable law.
(b) For purposes hereof, the term "PAYROLL" shall include the gross
compensation due to each Distribution Employee for any given payroll period
including (i) wages and salaries (including wages and salaries paid during any
period of leave such as short-term disability, vacation, holiday, military
leave or other paid leave of absence), (ii) bonuses, overtime, commission and
expense reimbursements (iii) employee paid social security taxes, employee paid
unemployment taxes, state, local and federal income taxes required to be
withheld and any other payroll-related taxes required to be withheld from the
gross compensation otherwise due to the Distribution Employees, (iv) amounts
withheld pursuant to the USF Employee Benefit Plans, and (v) all employer
payroll taxes due in respect of the gross compensation payable to the
Distribution Employee.
(c) Notwithstanding any other provision of this Agreement, Buyer shall,
with respect to all Distribution Employees who become employed by the Buyer on
the day after the last day of the Transition Period, on behalf of Distribution
and USFilter, (i) process and pay the Payroll with respect to the portion of the
Transition Period occurring after December 20, 2002, if any (including the
withholding and payment of applicable taxes), and (ii) prepare, deliver and file
all Forms W-2 with respect to such Distribution Employees for such period.
Buyer, USFilter and Distribution shall provide such information as may be
reasonably requested by any of them for the purpose of determining the amount of
Payroll for such period and for the purpose of maintaining adequate and accurate
Payroll records.
SECTION 4. USF EMPLOYEE BENEFIT PLANS. USFilter and/or Distribution,
as applicable, shall continue to provide coverage to Distribution Employees
during the Transition Period under the USF Employee Benefit Plans, subject to
the terms thereof; provided, however, that nothing contained in this Section 4
or elsewhere in this Agreement shall be construed to prevent, prior to the
expiration of the Transition Period, any change in any USF Employee Benefit
Plan. Notwithstanding the foregoing, to the extent that any USF Employee
Benefit Plan that benefits or covers Distribution Employees as well as
employees of USFilter or USFilter's other Affiliates. no amendment or
termination of any such USF Employee Benefit Plan shall be made unless such
amendment or termination applies to all similarly-situated employees of
USFilter or its Affiliates participating in such USF Employee Benefit Plans.
SECTION 5. CONTROL OF DISTRIBUTION EMPLOYEES. Buyer shall direct and
supervise the daily activities of the Distribution Employees on behalf of
Distribution. However, Distribution Employees shall be subject to the exclusive
control of Distribution and, subject to Section 9, Distribution shall be
responsible for all personnel matters regarding the Distribution Employees. Such
matters include, but are not limited to, promotions, transfers, compensation,
performance evaluations and all disciplinary actions up to and including
termination of employment. Distribution shall have the final decision to
terminate the employment of any Distribution Employee. Notwithstanding the
foregoing, Distribution shall not take any of the foregoing actions relating to
Distribution Employees without the prior written consent of Buyer or the
Designated Representative.
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SECTION 6. SERVICE COSTS AND FEES.
(a) Prefunding of Payroll and Matching Contributions. At least two (2)
Business Days prior to the date on which USFilter is scheduled to pay the
Payroll in respect of the Distribution Employees (each such date a "PAYMENT
DATE"), USFilter will provide written notice to Buyer of (i) the aggregate
amount of Payroll (the "AGGREGATE PAYROLL") to be paid in respect of the
Distribution Employees on the Payment Date and (ii) the aggregate amount of
matching contributions ("MATCHING CONTRIBUTIONS") to be contributed to the
United States Filter Corporation Retirement Savings Plan (the "RETIREMENT
SAVINGS PLAN") with respect to elective deferral contributions to the Retirement
Savings Plan by Distribution Employees included in such Payroll (the "AGGREGATE
MATCHING CONTRIBUTIONS"). On the Business Day prior to the Payment Date, Buyer
shall deposit or cause to be deposited the amount of the Aggregate Payroll and
Aggregate Matching Contributions into one or more accounts designated in writing
by USFilter. USFilter shall have no obligation hereunder to make any Payroll
payments to any Distribution Employee, to make any Matching Contributions to the
Retirement Savings Plan or to make any remittances otherwise required hereunder
in the event that it has not previously received funds in the amount of the
Aggregate Payroll and the Aggregate Matching Contributions on the Business Day
prior to the Payment Date.
(b) Monthly Invoicing of Distribution Welfare Benefit Costs and
Administrative Fee. USFilter shall, on a monthly basis, send Buyer an invoice
for (i) the Distribution Welfare Benefit Costs (as defined below) incurred by
USFilter during the preceding month and (ii) an Administrative Fee (as defined
below). No later than the tenth (lOth) Business Day following the delivery of an
invoice pursuant to this Section 6(c), Buyer shall deposit or cause to be
deposited the amount of such invoice into one or more accounts designated in
writing by USFilter. No delay by USFilter in presentation of an invoice shall
affect Buyer's obligation to pay the full amount of such invoice on the terms
set forth herein, provided that Buyer shall have ten (10) Business Days
following the delivery of any invoice to make any payment thereunder.
Notwithstanding the foregoing, at the request and subject to the approval of
USFilter, Buyer shall establish funding accounts to enable Buyer to make direct
payments for Distribution Welfare Benefit Costs to any USF Employee Benefit Plan
provider.
(i) For purposes of this Section 6(b), the term "DISTRIBUTION
WELFARE BENEFIT COSTS" shall mean the sum of the following expenses
incurred on behalf of Distribution by USFilter: (A) dollar-for-dollar
insurance premiums paid or payable by USFilter to the stop-loss insurer
of the benefits provided under USFilter's group medical plan, (B)
dollar-for-dollar administrative fees paid or payable by USFilter to
the administrator of the USFilter Group Health Insurance Plans
(including medical, dental, vision and employee assistance plans)
("USFilter Medical Plans"), (C) actual claims paid by USFilter pursuant
to the USFilter Medical Plans, (D) $12 per month per Distribution
Employee covered under USFilter's Group Term Life Insurance and
Accidental Death and Dismemberment, Business Travel Accident, and Group
Long-Term Disability plans, and (E) dollar for dollar, all other direct
costs, fees and expenses incurred by USFilter on behalf of Distribution
pursuant to the USF Employee Benefit Plans. For purposes of this
Agreement, it is expressly intended that the term "Distribution
Welfare Benefit Costs" include the cost, fees and expenses of providing
continuation coverage under the USFilter
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Medical Plans as required by COBRA with respect to any Distribution
Employee whose qualifying event occurs on or after the Closing Date
(and such Distribution Employee's qualified beneficiaries) and with
respect to any qualified beneficiaries of such Distribution Employee
whose qualifying event occurs on or after the Closing Date, regardless
of whether such cost is incurred prior to, on or after the last day of
the Transition Period.
(ii) For purposes of this Section 6(b), the term
"ADMINISTRATIVE FEE" shall mean, with respect to any monthly invoice,
an amount equal to $4.25 per Payroll check issued with respect to each
Distribution Employee for the prior month.
(c) Late Payments. Any amount due USFilter under this Section 6, but
which is not timely paid by Buyer, shall be increased by an amount equal to
interest at the Reference Rate plus 300 basis point accruing from the date on
which such payment is due to the date on which USFilter receives such payment,
inclusive of the date of payment.
SECTION 7. INFORMATION AND DOCUMENTATION. Buyer shall provide to
USFilter such information and data at such time and in such form as USFilter
may reasonably request from time to time for the purpose of providing the
services described in this Agreement, including, without limitation, the timely
payment of all wages and salaries and the timely provision and administration
of the USF Employee Benefit Plans with respect to Distribution Employees.
SECTION 8. FORCE MAJEURE. Neither Distribution nor USFilter shall be
liable for any interruption, delay or failure to perform under this Agreement
when such interruption, delay or failure results from causes beyond its
reasonable control or as the result of strikes, lockouts or other labor
difficulties; acts of any government, riot, terrorism, insurrection or other
hostilities; embargo, fuel or energy shortage, fire, flood, acts of God, wrecks
or transportation delays; or inability to obtain necessary labor, materials or
utilities from the usual sources. In such event, the obligations of
Distribution and USFilter hereunder shall be postponed for such time as its
performance is suspended or delayed on account thereof. Distribution or
USFilter, as applicable, shall promptly notify Buyer, either orally or in
writing, upon learning of the occurrence of any such event of force majeure.
Upon cessation of the force majeure event, Distribution and USFilter shall use
their best reasonable efforts to resume their performance with the least
possible delay. If any force majeure event affects only a part of the ability
of Distribution and/or USFilter to provide services at that time, USFilter or
Distribution, as applicable, shall provide services to Buyer in an equitable
manner.
SECTION 9. INDEMNIFICATION. Notwithstanding any other provision of
this Agreement to the contrary, Buyer shall indemnify, save and hold harmless
USFilter and Distribution and their officers, directors, employees, agents and
affiliates ("INDEMNITEES") from and against all demands, claims, allegations,
assertions, actions or causes of action, assessments, losses, damages,
deficiencies, liabilities, costs and expenses (including reasonable legal fees,
interest, penalties and all reasonable amounts paid in investigation, defense or
settlement of any of the foregoing) (collectively, the "INDEMNIFIABLE DAMAGES"),
arising from or relating to the performance of services and the administration
of benefits pursuant to this Agreement; provided, however, that Buyer shall not
be obligated to indemnify an Indemnitee for any Indemnifiable
Damages to the extent that such Idemnifiable Damages arise or result directly
from the gross negligence or intentional misconduct of any of the Indemnitees.
SECTION 10. LIMITATION OF USFILTER'S AND DISTRIBUTION'S LIABILITY.
BUYER ACKNOWLEDGES THAT USFILTER AND DISTRIBUTION ARE ENTERING INTO THIS
AGREEMENT SOLELY AS AN ACCOMMODATION TO BUYER AND THAT USFILTER AND DISTRIBUTION
AND THEIR AFFILIATES ARE NOT IN THE BUSINESS OF SUPPLYING EMPLOYEES TO PROVIDE
SERVICES. BUYER AGREES THAT USFILTER AND DISTRIBUTION AND THEIR AFFILIATES SHALL
HAVE NO RESPONSIBILITY FOR AND HAVE MADE, AND MAKE, NO REPRESENTATIONS OR
WARRANTIES OF WHATSOEVER NATURE, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED,
REGARDING THE QUALITY, ADEQUACY, SUFFICIENCY OR COMPLETENESS OF THE SERVICES
PROVIDED BY ANY DISTRIBUTION EMPLOYEE, THE QUALIFICATIONS OF ANY DISTRIBUTION
EMPLOYEE OR ANY OTHER MATTER. BUYER ALSO AGREES THAT USFILTER AND DISTRIBUTION
SHALL HAVE NO LIABILITY OR OBLIGATION TO BUYER OR ANY OTHER PERSON RELATING TO
OR ARISING OUT OF (i) ACTIONS, INACTIONS, ERRORS OR OMISSIONS OF ANY
DISTRIBUTION EMPLOYEE, (ii) ANY WORK-RELATED INJURY SUSTAINED BY ANY
DISTRIBUTION EMPLOYEE BY REASON OF THE PROVISION OF SERVICES TO BUYER BY
DISTRIBUTION EMPLOYEES, OR (iii) ANY OTHER EVENT, CONDITION, OR MATTER RELATING
TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, OTHER THAN LIABILITIES OR
OBLIGATIONS THAT RESULT DIRECTLY FROM USFILTER'S OR DISTRIBUTION'S GROSS
NEGLIGENCE OR INTENTIONAL MISCONDUCT. IN NO EVENT SHALL USFILTER OR DISTRIBUTION
BE LIABLE BY REASON OF THIS AGREEMENT TO BUYER OR ANY OTHER PERSON OR ENTITY FOR
INDIRECT, CONSEQUENTIAL 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.
SECTION 11. NOTICES. All notices and other communications given or made
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly given or made (i) the second Business Day after the date of mailing, if
delivered by registered or certified mail, postage prepaid; (ii) upon delivery,
if sent by hand delivery; (iii) upon delivery, if sent by prepaid courier, with
a record of receipt; or (iv) the next day after the date of dispatch, if sent by
facsimile or telecopy (with a copy simultaneously sent by registered or
certified mail, postage prepaid, return receipt requested or by prepaid
courier), to the parties to this Agreement at the following addresses:
(i) if to Buyer, to:
Blue Acquisition Corp.
000 Xxxx Xxx. 0, Xxxxx 000
Xxxx, Xxxxx 00000
Fax: (000) 000-0000
with copies to:
X.X. Xxxxxx Partners, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Official Notices Clerk
FBO Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
and to:
Xxxxxx X. Xxx Partners
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Fax: (000) 000-0000
(ii) if to USFilter or Distribution, to:
United States Filter Corporation
00-000 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
Any party may change the address to which notice to it, or copies
thereof, shall be addressed by giving notice thereof to the other party in
conformity with the foregoing.
SECTION 12. CURRENCY. Buyer shall make payments to USFilter hereunder,
including all Welfare Benefit Costs and Administrative Fees, in United States
Dollars.
SECTION 13. ASSIGNMENT; GOVERNING LAW. This Agreement and all the
rights and powers granted hereby shall bind and inure to the benefit of the
parties hereto and their respective permitted successors and assigns. This
Agreement and the rights, interests and obligations hereunder may not be
assigned by any party hereto without the prior written consent of the other
parties hereto. This Agreement shall be governed by and construed in accordance
with the Laws of the State of Delaware without regard to its conflict of law
doctrines.
SECTION 14. AMENDMENT AND WAIVER; CUMULATIVE EFFECT. To be effective,
any amendment or waiver under this Agreement must be in writing and be signed by
the party against whom enforcement of the same is sought. Neither the failure of
any party hereto to excercise any right, power or remedy provided under this
Agreement or to insist upon compliance by any other party with its obligations
hereunder, nor any custom or practice of the parties at variance with the terms
hereof shall constitute a waiver by such party of its right to exercise any such
right, power or remedy or to demand such compliance. The rights and remedies of
the parties hereto are cumulative and not exclusive of the rights and remedies
that they otherwise might have now or hereafter, at law, in equity, by statute
or otherwise.
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SECTION 15. ENTIRE AGREEMENT: NO THIRD PARTY BENEFICIARIES. This
Agreement sets forth all of the promises, covenants, agreements, conditions and
undertakings between the parties hereto with respect to the subject matter
hereof, and supersede all prior or contemporaneous agreements and
understandings, negotiations, inducements or conditions, express or implied,
oral or written. This Agreement is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder, except the provisions
of Section 9 relating to indemnitees.
SECTION 16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall be deemed one and the same instrument.
SECTION 17. ATTORNEYS FEES. If either party commences or is made a
party to an action or proceeding to enforce or interpret this Agreement, the
prevailing party in such action or proceeding shall be entitled to recover from
the other party all attorneys' fees, costs and expenses incurred in connection
with such action or proceeding or any appeal or enforcement of any judgment
obtained in such action or proceeding.
SECTION 18. TERMINATION. The obligations of USFilter hereunder shall
expire at 11:59 p.m. (New York City Time) on December 31, 2002. Buyer may
terminate this Agreement at any time prior to December 31, 2002 by providing
USFilter with written notice at least thirty Business Days in advance of the
effective date of such termination. USFilter may terminate this Agreement at any
time in the event that Buyer fails to pay any amount due to USFilter hereunder
in accordance with its terms, Notwithstanding anything to the contrary herein,
the obligations set forth in Sections 6 (solely with respect to any amounts due
but not yet paid as of the termination date), 7, 9 and 10 shall survive the
expiration or earlier termination of this Agreement.
SECTION 19. RECORDS. USFilter and Distribution shall make Payroll and
USF Employee Benefit Plans records available to Buyer or the Designated
Representative (as defined in Section 20 below) for the reasonable and
legitimate business, financial and tax requirements of Buyer upon reasonable
request and at the expense of Buyer.
SECTION 20. DESIGNATED REPRESENTATIVE. Buyer may appoint one or more
persons (each a "DESIGNATED REPRESENTATIVE") who shall be authorized to provide
USFilter and Distribution with instructions or requests in accordance with this
Agreement. Such appointments shall be made by providing USFilter and
Distribution with written notice of such appointment(s) setting forth the name,
title, location address, telephone, fax number and e-mail address of the
appointed person.
[Signatures commence on following page.]
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date and year first above written.
NATIONAL WATERWORKS, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Title: President and CEO
------------------------
UNITED STATES FILTER
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
Executive Vice President
U.S. FILTER DISTRIBUTION GROUP,
INC.
By: /s/ Xxxxxx X. Xxxx
------------------------
Xxxxxx X. Xxxx
Assistant Secretary
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