Exhibit 2.8
EMPLOYEE MATTERS AGREEMENT
BETWEEN
ADAPTEC, INC.
AND
ROXIO, INC.
EFFECTIVE AS OF
APRIL 1, 2001
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS.........................................................1
1.1 Adaptec...........................................................1
1.2 Adaptec Business..................................................1
1.3 Adaptec Group.....................................................1
1.4 Adaptec Employee..................................................1
1.5 Adaptec Stock Value...............................................2
1.6 Affiliate.........................................................2
1.7 Agreement.........................................................2
1.8 Ancillary Agreements..............................................2
1.9 California State Disability Insurance.............................2
1.10 COBRA.............................................................2
1.11 Code..............................................................2
1.12 Distribution......................................................2
1.13 Distribution Date.................................................2
1.14 Employee Agreement................................................2
1.15 ERISA.............................................................2
1.16 FMLA..............................................................2
1.17 Health and Welfare Plans..........................................3
1.18 Health Plans......................................................3
1.19 Leave of Absence Plans............................................3
1.20 Liabilities.......................................................3
1.21 Nasdaq............................................................3
1.22 Option............................................................3
1.23 Participating Company.............................................3
1.24 Person............................................................3
1.25 Plan..............................................................4
1.26 Ratio.............................................................4
1.27 Registration Date.................................................4
1.28 Roxio.............................................................4
1.29 Roxio Business....................................................4
1.30 Roxio Group.......................................................4
1.31 Roxio Employee....................................................4
1.32 Roxio Stock Value.................................................4
1.33 Separation........................................................4
1.34 Separation Agreement..............................................4
1.35 Separation Date...................................................4
1.36 Stock Plan........................................................4
1.37 Stock Purchase Plan...............................................5
1.38 Subsidiary........................................................5
1.39 Supplemental Short-Term Disability Plan...........................5
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TABLE OF CONTENTS
(CONTINUED)
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1.40 Voluntary Short-Term Disability Plan..............................5
1.41 401(k) Plan.......................................................5
ARTICLE II GENERAL PRINCIPLES.................................................5
2.1 Liabilities.......................................................5
2.2 Establishment of Roxio Plans......................................5
2.3 Roxio Under No Obligation to Maintain Plans.......................6
2.4 Roxio's Participation in Adaptec Plans............................6
2.5 Terms of Participation by Roxio Employees in Roxio Plans..........7
2.6 Foreign Plans.....................................................7
ARTICLE III DEFINED CONTRIBUTION PLAN.........................................7
3.1 401(k) Plan.......................................................7
ARTICLE IV HEALTH AND WELFARE PLANS...........................................8
4.1 Health Plans as of the Distribution Date..........................8
4.2 Health Plans through the Distribution Date........................9
4.3 Group Life Plan...................................................9
4.4 Accidental Death & Dismemberment Plan.............................9
4.5 Disability Plans..................................................9
4.6 Business Travel Accident Insurance................................9
4.7 Section 125 Plans.................................................9
4.8 COBRA............................................................10
4.9 Workers' Compensation Plan.......................................10
4.10 Leave of Absence Plans...........................................10
ARTICLE V EQUITY AND OTHER COMPENSATION......................................10
5.1 Bonus and Retention Plans........................................10
5.2 Adaptec Options..................................................11
5.3 Stock Purchase Plan..............................................11
5.4 Stock Plan.......................................................11
ARTICLE VI ADMINISTRATIVE PROVISIONS.........................................12
6.1 Sharing of Participant Information...............................12
6.2 Costs and Expenses...............................................12
ARTICLE VII EMPLOYMENT-RELATED MATTERS.......................................12
7.1 Employee Agreements..............................................12
7.2 Terms of Roxio Employment........................................13
7.3 Non-Solicitation of Employees....................................13
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TABLE OF CONTENTS
(CONTINUED)
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7.4 Employment of Employees with United States Work Visas............14
7.5 Employment Litigation............................................14
ARTICLE VIII GENERAL PROVISIONS..............................................14
8.1 Effect if Separation and/or Distribution Does Not Occur..........14
8.2 Relationship of Parties..........................................14
8.3 Governing Law....................................................14
8.4 Assignment.......................................................15
8.5 Severability.....................................................15
8.6 Interpretation...................................................15
8.7 Amendment........................................................15
8.8 Termination......................................................15
8.9 Conflict.........................................................15
8.10 Counterparts.....................................................16
8.11 Dispute Resolution...............................................16
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EMPLOYEE MATTERS AGREEMENT
This EMPLOYEE MATTERS AGREEMENT (the "Agreement") is entered into on
April 1, 2001, between Adaptec, Inc., a Delaware corporation, and Roxio, Inc., a
Delaware corporation. Capitalized terms used herein (other than the formal names
of Adaptec Plans (as defined below) and related trusts of Adaptec) and not
otherwise defined, shall have the respective meanings assigned to them in
Article I or as they may be defined elsewhere in this Agreement.
WHEREAS, the Board of Directors of Adaptec has determined that it is in
the best interests of Adaptec and its shareholders to separate Adaptec's
existing businesses into two (2) independent businesses, Adaptec and Roxio; and
WHEREAS, in furtherance of the foregoing, Adaptec and Roxio have agreed
to enter into this Agreement to allocate between them Assets, Liabilities and
responsibilities with respect to certain employee compensation, benefit plans,
programs and arrangements, and certain employment matters;
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Wherever used in this Agreement, the following terms shall have the
meanings indicated below or as such term may be defined elsewhere in this
Agreement, unless a different meaning is plainly required by the context. The
singular shall include the plural, unless the context indicates otherwise.
Headings of sections are used for convenience of reference only, and in case of
conflict, the text of this Agreement, rather than such headings, shall control:
1.1 ADAPTEC. "Adaptec" means the Adaptec Business and the Adaptec
Group.
1.2 ADAPTEC BUSINESS. "Adaptec Business" has the meaning set forth in
Section 6.1 of the Separation Agreement.
1.3 ADAPTEC GROUP. "Adaptec Group" has the meaning set forth in
Section 6.2 of the Separation Agreement.
1.4 ADAPTEC EMPLOYEE. "Adaptec Employee" means an individual who is:
(a) on the Separation Date actively employed by, or on leave of absence from,
Adaptec (b) an employee or among a group of employees designated as Adaptec
Employees by Adaptec and Roxio, by mutual agreement; or (c) an employee of
Adaptec or Roxio who, prior to the Distribution Date, is on, or begins, a
company approved leave of absence until the earlier of (i) the employee's
termination of employment, (ii) the passage of six months as measured from the
employee's last day of active work, or (iii) the employee is medically released
to return to work.
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Notwithstanding the foregoing, in the event an employee begins an approved leave
of absence prior to the Distribution Date, and the employee has been designated
a Roxio Employee prior to such leave of absence, then such employee shall be
deemed to be an Adaptec Employee during such leave of absence. Upon the
expiration of such leave of absence, such employee's employment with Adaptec
shall be terminated.
1.5 ADAPTEC STOCK VALUE. "Adaptec Stock Value" means the closing
per-share price of Adaptec common stock as listed on the Nasdaq on the
Distribution Date.
1.6 AFFILIATE. "Affiliate" means, with respect to any specified
Person, any entity that Controls, is Controlled by, or is under common Control
with such Person. For this purpose, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such entity, whether through ownership of voting securities or other
interests, by control, or otherwise.
1.7 AGREEMENT. "Agreement" means this Employee Matters Agreement,
including all the Schedules hereto, if any, and all amendments made hereto from
time to time.
1.8 ANCILLARY AGREEMENTS. "Ancillary Agreements" has the meaning set
forth in Section 2.1 of the Separation Agreement.
1.9 CALIFORNIA STATE DISABILITY INSURANCE. "California State
Disability Insurance" means the disability insurance made available and
administered by the State of California to employers and employees.
1.10 COBRA. "COBRA" means the continuation coverage requirements for
"group health plans" under Title X of the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended from time to time, and as codified in
Code Section 4980B and ERISA Sections 601 through 608.
1.11 CODE. "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
1.12 DISTRIBUTION. "Distribution" has the meaning set forth in the
Recitals of the Separation Agreement.
1.13 DISTRIBUTION DATE. "Distribution Date" has the meaning set forth
in Section 6.13 of the Separation Agreement.
1.14 EMPLOYEE AGREEMENT. "Employee Agreement" has the meaning set forth
in Section 8.1 hereof.
1.15 ERISA. "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time.
1.16 FMLA. "FMLA" means the Family and Medical Leave Act of 1993, as
amended from time to time.
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1.17 HEALTH AND WELFARE PLANS. "Health and Welfare Plans," when
immediately preceded by "Adaptec," means the Adaptec Health Plans, the Adaptec
Code Section 125/Flexible Spending Plan (the "Adaptec 125 Plan"), established
and maintained by Adaptec for the benefit of eligible employees of Adaptec, and
such other welfare plans or programs as may apply to such employees through the
Distribution Date. When immediately preceded by "Roxio," Health and Welfare
Plans means the Roxio Health Plans, the Roxio Code Section 125/Flexible Spending
Plan (if applicable) (the "Roxio 125 Plan"), established and maintained by Roxio
for the benefit of eligible employees of Roxio, and such other welfare plans or
programs that Roxio may establish.
1.18 HEALTH PLANS. "Health Plans," when immediately preceded by
"Adaptec," means the medical, HMO, vision, and dental plans and any similar or
successor Plans. When immediately preceded by "Roxio," "Health Plans" means the
medical, HMO, vision and dental plans that may be established by Roxio.
1.19 LEAVE OF ABSENCE PLANS. "Leave of Absence Plans," when immediately
preceded by "Adaptec," means the personal, medical/disability, military, FMLA
and other leave of absence programs that are offered, or may in the future be
offered, from time to time under the personnel policies and practices of
Adaptec. When immediately preceded by "Roxio," "Leave of Absence Plans" means
the leave of absence programs that may be established by Roxio.
1.20 LIABILITIES. "Liabilities" means all debts, liabilities,
guarantees, assurances, commitments, and obligations, whether fixed, contingent
or absolute, asserted or unasserted, matured or unmatured, liquidated or
unliquidated, accrued or not accrued, known or unknown, due or to become due,
whenever or however arising (including, without limitation, whether arising out
of any Contract or tort based on negligence or strict liability) and whether or
not the same would be required by generally accepted accounting principles to be
reflected in financial statements or disclosed in the notes thereto. For this
purpose, "Contract" means any contract, agreement, lease, license, sales order,
purchase order, instrument or other commitment that is binding on any Person or
any part of its property under applicable law.
1.21 NASDAQ. "Nasdaq" means the Nasdaq National Market.
1.22 OPTION. "Option," when immediately preceded by "Adaptec," means an
option to purchase Adaptec common stock pursuant to an Adaptec Stock Plan. When
immediately preceded by "Roxio," "Option" means an option to purchase Roxio
common stock pursuant to a Roxio Stock Plan.
1.23 PARTICIPATING COMPANY. "Participating Company" means: (a) Adaptec;
(b) any Person (other than an individual) that Adaptec has approved for
participation in, has accepted participation in, and which is participating in,
a Plan sponsored by Adaptec; and (c) any Person (other than an individual)
which, by the terms of such Plan, participates in such Plan or any employees of
which, by the terms of such Plan, participate in or are covered by such Plan.
1.24 PERSON. "Person" has the meaning as set forth in Section 6.22 of
the Separation Agreement.
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1.25 PLAN. "Plan" means any plan (including any of the health and
welfare plans), policy, program, payroll practice, arrangement, contract, trust,
insurance policy, or any agreement or funding vehicle providing compensation or
benefits to employees, former employees, directors or consultants of Adaptec or
Roxio.
1.26 RATIO. "Ratio" means the ratio determined by dividing the Roxio
Stock Value by the Adaptec Stock Value.
1.27 REGISTRATION DATE. "Registration Date" means the date on which the
Form 10 Registration Statement (as defined in the Separation Agreement) is
declared effective by the Securities and Exchange Commission.
1.28 ROXIO. "Roxio" means the Roxio Business and the Roxio Group.
1.29 ROXIO BUSINESS. "Roxio Business" has the meaning as set forth in
Section 6.28 of the Separation Agreement.
1.30 ROXIO GROUP. "Roxio Group" has the meaning as set forth in
Section 6.29 of the Separation Agreement.
1.31 ROXIO EMPLOYEE. "Roxio Employee" means any individual who: (a) is
actively employed by Roxio on the Separation Date; (b) prior to the Distribution
Date, moves to the employ of Roxio from the employ of Adaptec; (c) is an
employee or group of employees designated as Roxio Employees by Adaptec and
Roxio, by mutual agreement, (d) is an individual employed by Roxio on or after
the Separation Date; provided, however, that (e) a Roxio Employee shall not mean
to include an employee of Roxio, who, after the Separation Date but prior to the
Distribution Date, begins a company approved leave of absence.
1.32 ROXIO STOCK VALUE. "Roxio Stock Value" means the opening per-share
price of Roxio common stock as listed on Nasdaq, as applicable, on the first
trading day after the Distribution.
1.33 SEPARATION. "Separation" has the meaning set forth in the Recitals
of the Separation Agreement.
1.34 SEPARATION AGREEMENT. "Separation Agreement" means the First
Amended and Restated Master Separation and Distribution Agreement, dated as of
February 28, 2001, of which this is Exhibit E thereto.
1.35 SEPARATION DATE. "Separation Date" has the meaning set forth in
Section 1.1 of the Separation Agreement.
1.36 STOCK PLAN. "Stock Plan," when immediately preceded by "Adaptec,"
means any plan, program, or arrangement, other than the Stock Purchase Plan,
pursuant to which employees, directors and consultants hold Options, Adaptec
Restricted Stock, or other Adaptec equity incentives. "Stock Plan," when
immediately preceded by "Roxio," means any plan,
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program, or arrangement, other than the Stock Purchase Plan, pursuant to which
employees, directors and consultants hold Options, Roxio Restricted Stock, or
other Roxio equity incentives.
1.37 STOCK PURCHASE PLAN. "Stock Purchase Plan," when immediately
preceded by "Adaptec," means the Adaptec Employee Stock Purchase Plan. When
immediately preceded by "Roxio," "Stock Purchase Plan" means the employee stock
purchase plan to be established by Roxio.
1.38 SUBSIDIARY. "Subsidiary" has the meaning set forth in Section 6.32
of the Separation Agreement.
1.39 SUPPLEMENTAL SHORT-TERM DISABILITY PLAN. Supplemental Short Term
Disability Plan means the disability plan offered by Adaptec that is offered to
eligible individuals that is not in lieu of, but is addition to, the benefits
provided under the Adaptec Voluntary Short Term Disability Plan.
1.40 VOLUNTARY SHORT-TERM DISABILITY PLAN. The Voluntary Short-Term
Disability Plan means the disability plan offered by Adaptec that is offered to
eligible individuals that covers Adaptec Employees who are employed in
California and that is offered in lieu of California State Disability Insurance.
1.41 401(k) PLAN. "401(k) Plan," when immediately preceded by Adaptec
means the qualified retirement plan of Adaptec. When immediately preceded by
Roxio, "401(k) Plan" shall mean the qualified retirement plan that Roxio shall
establish, sponsor, and maintain effective as of the Distribution Date or such
other date as Adaptec and Roxio may mutually agree.
ARTICLE II
GENERAL PRINCIPLES
2.1 LIABILITIES. Except as specified otherwise in this Agreement or as
mutually agreed upon by Roxio and Adaptec from time to time, effective as of the
Separation Date, Roxio shall pay to Adaptec an amount that equals twenty-five
percent (25%) of Roxio's adjusted payroll charges during the time from the
Separation Date up to the Distribution Date. Except as specified otherwise in
this Agreement or as mutually agreed upon by Roxio and Adaptec, any Liability
incurred with respect to Adaptec Plans by Roxio as a Participating Company up to
the Distribution Date shall be borne solely by Adaptec, and any Liability
incurred with respect to Roxio Plans, as then, or in the future, may be
established, from the Distribution Date forward will be borne solely by Roxio.
2.2 ESTABLISHMENT OF ROXIO PLANS
(a) HEALTH AND WELFARE PLANS. Effective as of the Distribution
Date, Roxio shall have in place and will have adopted the Roxio Health and
Welfare Plans.
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(b) 401(k) PLAN. Effective as of the Distribution Date (or such
other date as Adaptec and Roxio may mutually agree), Roxio shall establish, or
cause to be established, a separate trust, which is intended to be tax-qualified
under Code Section 401(a), to be exempt from taxation under Code Section
501(a)(1), and to form the Roxio 401(k) Plan.
(c) EQUITY AND OTHER COMPENSATION. Except as specified
otherwise in this Agreement, effective on or before the Separation Date (or such
other date(s) as Adaptec and Roxio may mutually agree), Roxio shall adopt the
Roxio Stock Plans. Effective on or before the Registration Date (or such other
date as Adaptec and Roxio may mutually agree), Roxio shall adopt the Roxio Stock
Purchase Plan.
(d) OTHER PLANS. Except as otherwise specified in this
Agreement, effective as of the Distribution Date Roxio shall adopt certain Roxio
Plans that are specifically tied to its payroll practices, including, without
limitation, such Plans that Roxio deems appropriate.
2.3 ROXIO UNDER NO OBLIGATION TO MAINTAIN PLANS. Except as specified
otherwise in this Agreement, nothing in this Agreement shall preclude Roxio, at
any time after the Distribution Date, from amending, merging, modifying,
terminating, eliminating, reducing, or otherwise altering in any respect any
Roxio Plan, any benefit under any Roxio Plan or any trust, insurance policy or
funding vehicle related to any Roxio Plans, or any employment or other service
arrangement with Roxio Employees, consultants or vendors (to the extent
permitted by law).
2.4 ROXIO'S PARTICIPATION IN ADAPTEC PLANS.
(a) PARTICIPATION IN ADAPTEC PLANS. Except as specified
otherwise in this Agreement or as Adaptec and Roxio may mutually agree, Roxio
shall, until the Distribution Date, continue to be a Participating Company in
the Adaptec Plans.
(b) ADAPTEC'S GENERAL OBLIGATIONS AS PLAN SPONSOR. To the
extent that Roxio is a Participating Company in any Adaptec Plan, Adaptec shall
continue to administer, or cause to be administered, in accordance with its
terms and applicable law, such Adaptec Plan, and shall have the sole and
absolute discretion and authority to interpret the Adaptec Plan, as set forth
therein. Notwithstanding the foregoing, Adaptec may at any time amend, merge,
modify, terminate, eliminate, reduce, or otherwise alter any Adaptec Plan to the
extent permitted by law and the terms of such Adaptec Plan.
(c) ROXIO'S GENERAL OBLIGATIONS AS PARTICIPATING COMPANY. Roxio
shall perform, with respect to its participation in the Adaptec Plans, the
duties of a Participating Company as set forth in each such Plan or any
procedures adopted pursuant thereto, including (without limitation): (i)
assistance in the administration of claims, to the extent requested by the
claims administrator of the applicable Adaptec Plan; (ii) full cooperation with
Adaptec Plan auditors, benefit personnel and benefit vendors; (iii) preservation
of the confidentiality of all financial arrangements Adaptec has or may have
with any vendors, claims administrators, trustees, service providers or any
other entity or individual with whom Adaptec has entered into an agreement
relating to the Adaptec Plans; and (iv) preservation of the confidentiality of
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participant information (including, without limitation, health information in
relation to leaves) to the extent not specified otherwise in this Agreement.
(d) TERMINATION OF PARTICIPATING COMPANY STATUS. Except as
specified otherwise in this Agreement or as mutually agreed upon by Roxio and
Adaptec, effective as of the Distribution Date, Roxio shall automatically cease
to be a Participating Company in any and all Adaptec Plans.
2.5 TERMS OF PARTICIPATION BY ROXIO EMPLOYEES IN ROXIO PLANS
(a) NON-DUPLICATION OF BENEFITS. Except as specified otherwise
in this Agreement or as mutually agreed upon by Roxio and Adaptec, effective as
of the Distribution Date, Adaptec and Roxio shall agree on methods and
procedures, including amending the respective Plan documents, to prevent Roxio
Employees from receiving duplicate benefits from the Adaptec Plans and the Roxio
Plans, except as may be set forth in Section 5.3 and Section 5.4 of this
Agreement.
(b) SERVICE CREDIT. Except as specified otherwise in this
Agreement, with respect to Roxio Employees, Roxio shall make reasonable efforts
to provide that all service and all other benefit-affecting determinations that,
as of the Distribution Date, were recognized under the corresponding Adaptec
Plan shall, as of the Distribution Date, receive full recognition and credit and
be taken into account under such Roxio Plan to the same extent as if such items
occurred under such Roxio Plan, except to the extent that duplication of
benefits would result.
2.6 FOREIGN PLANS. Roxio and Adaptec each intend that the matters,
issues or Liabilities relating to, arising out of, or resulting from foreign
plans and non-U.S.-related employment matters be handled in a manner that is in
compliance with the requirements of applicable local law.
ARTICLE III
DEFINED CONTRIBUTION PLAN
3.1 401(k) PLAN
(a) 401(k) PLAN TRUST. Effective as of the Distribution Date
(or such other date as Adaptec and Roxio may mutually agree), Roxio shall
establish, or cause to be established, a separate trust, which is intended to be
tax-qualified under Code Section 401(a), to be exempt from taxation under Code
Section 501(a)(1), and to form the Roxio 401(k) Plan.
(b) 401(k) PLAN: ASSUMPTION OF LIABILITIES AND TRANSFER OF
ASSETS. Effective as of the Distribution Date (or such other date as Adaptec and
Roxio may mutually agree): (i) the Roxio 401(k) Plan shall assume and be solely
responsible for all Liabilities relating to, arising out of, or resulting from
Roxio Employees under the Adaptec 401(k) Plan; and (ii) Adaptec shall cause the
accounts of the Roxio Employees under the Adaptec 401(k) Plan that are held by
its related trust to be transferred to the Roxio 401(k) Plan and its related
trust, and Roxio shall cause
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such transferred accounts to be accepted by such Plan and its related trust.
Roxio and Adaptec each agree to use their reasonable best efforts to accomplish
this 401(k) Plan and related trust spin-off.
(c) NO DISTRIBUTION TO ROXIO EMPLOYEES. The Adaptec 401(k) Plan
and the Roxio 401(k) Plan shall provide that no distribution of account balances
shall be made to any Roxio Employee on account of Roxio ceasing to be an
Affiliate of Adaptec as of the Distribution Date.
ARTICLE IV
HEALTH AND WELFARE PLANS
4.1 HEALTH PLANS AS OF THE DISTRIBUTION DATE.
(a) ROXIO HEALTH PLANS. As of the Distribution Date (or such
other date(s) as Adaptec and Roxio may mutually agree), Roxio shall have
established Roxio Health Plans that will provide coverage for Roxio Employees
(and their eligible dependents). Effective as of the last day of the month in
which the Distribution Date occurs, Roxio Employees shall cease to be covered
under the Adaptec Health Plans, and Roxio shall be solely responsible for (i)
all Liabilities incurred with respect to such Roxio Health Plans; and (ii) the
administration of the Roxio Health Plans, including, without limitation, the
payment of all employer-related costs in establishing and maintaining the Roxio
Health Plans, and for the collection and remittance of employee premiums from
such date forward.
(b) PENDING TREATMENTS. Notwithstanding Subsection 4.1(a)
above, all courses of treatment that have begun prior to the Distribution Date
with respect to Roxio Employees (or their eligible dependents) under the
applicable Adaptec Health Plan shall be provided without interruption under the
applicable Adaptec Health Plan until the earlier of: (i) such course of
treatment is concluded or discontinued or (ii) ninety (90) days from the date
medical attention was first received with respect to such course of treatment
("Uninterrupted Treatment"). For purposes of this Section 4.1(b) only, courses
of treatment means that a Roxio Employee, prior to the Distribution Date, has
received, and at the Distribution Date is still receiving, medical treatment for
a specific illness or injury and such Uninterrupted Treatment is applicable only
to that specific illness or injury.
(c) VENDOR ARRANGEMENTS. If requested by Roxio and if agreed to
by Adaptec, Adaptec shall use reasonable efforts in assisting Roxio to procure,
effective as of the Distribution Date (or such other date(s) as Adaptec and
Roxio may mutually agree), Roxio Health Plans.
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(d) NO STATUS CHANGE. The transfer or other movement of
employment between Adaptec to Roxio at any time upon or before the Distribution
Date shall neither constitute nor be treated as a "status change" or termination
of employment under the Adaptec Health Plans or the Roxio Health Plans.
4.2 HEALTH PLANS THROUGH THE DISTRIBUTION DATE. Except as otherwise
agreed by Adaptec and Roxio, for the period beginning with the Separation Date
and ending on the last day of the month in which the Distribution Date falls (or
such other period as Adaptec and Roxio may mutually agree), Roxio Employees
shall continue to participate in the Adaptec Health Plans. Adaptec shall
administer and be responsible for claims incurred under the Adaptec Health Plans
by Roxio Employees until the last day of the month in which the Distribution
Date occurs, subject to the limitations as set forth in Section 4.1(b). Any
determination made or settlements entered into by Adaptec with respect to such
claims shall be final and binding. Adaptec shall retain financial and
administrative ("run-out") Liability and all related obligations and
responsibilities for all claims incurred by Roxio Employees until the last day
of the month in which the Distribution Date occurs, subject to the limitations
as set forth in Section 4.1(b).
4.3 GROUP LIFE PLAN. Roxio shall, until the Distribution Date (or such
other date as Adaptec and Roxio may mutually agree), continue to be a
Participating Company in any Adaptec group life insurance plan or arrangement.
4.4 ACCIDENTAL DEATH & DISMEMBERMENT PLAN. Roxio shall, until the
Distribution Date (or such other date as Adaptec and Roxio may mutually agree),
continue to be a Participating Company in the Adaptec accidental death &
dismemberment Plan.
4.5 DISABILITY PLANS.
(a) SHORT-TERM DISABILITY PLAN. Roxio shall, until the
Distribution Date (or such other date as Adaptec and Roxio may mutually agree),
continue to be a Participating Company in the Adaptec Supplemental Short-Term
Disability Plan. With respect to Roxio Employees who are employed in California,
said employees will be covered by California State Disability Insurance in lieu
of being eligible to receive benefits under the Adaptec Voluntary Short-Term
Disability Plan.
(b) LONG-TERM DISABILITY PLAN. Roxio shall, until the
Distribution Date (or such other date as Roxio and Adaptec may mutually agree),
continue to be a Participating Company in the Adaptec long-term disability plan.
4.6 BUSINESS TRAVEL ACCIDENT INSURANCE. Roxio shall, until the
Distribution Date (or such other date as Roxio and Adaptec may mutually agree),
continue to be a Participating Company in the Adaptec business travel accident
insurance Plan.
4.7 SECTION 125 PLANS.
(a) CAFETERIA PLAN. Roxio shall, until the Distribution Date
(or such other date as Roxio and Adaptec may mutually agree), continue to be a
Participating Company in the
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Adaptec 125 Plan. Effective as of the Distribution Date, Roxio may establish, in
its sole discretion, a Roxio 125 Plan for the benefit of Roxio Employees.
(b) FLEXIBLE SPENDING ACCOUNT PLAN. Until the Distribution
Date, Roxio shall continue to be a Participating Company in the health care
spending account and dependent care spending account (the "Adaptec Flexible
Spending Accounts") of the Adaptec 125 Plan. Effective as of the Distribution
Date, Roxio shall cause to be implemented and shall sponsor a Roxio health care
spending account and dependent care spending account (the "Roxio Flexible
Spending Accounts") for the benefit of Roxio Employees that is substantially
similar to that of the Adaptec Flexible Spending Accounts.
4.8 COBRA. Adaptec shall be responsible for providing COBRA
continuation coverage (for the applicable period of time as required by law) to
Roxio Employees and their eligible dependents who become eligible for such
coverage prior to the Distribution Date. Effective as of the Distribution Date,
Roxio shall be responsible for providing COBRA continuation coverage to Roxio
Employees and their eligible dependents who become eligible for such coverage on
and following the Distribution Date.
4.9 WORKERS' COMPENSATION PLAN. Effective as of the Separation Date,
or such other date as Adaptec and Roxio may mutually agree, Adaptec shall
establish a workers' compensation plan for the benefit of Roxio Employees (the
"Separation Date Workers' Compensation Plan"). Effective as of the Distribution
Date, Roxio shall establish, terminate or renegotiate the terms of the
Separation Date Workers' Compensation Plan. Any Liabilities that accrue under
the Separation Date from the time of implementation of the Separation Date
Workers' Compensation Plan to the Distribution date shall be liabilities of
Adaptec. Any Liabilities that accrue under the Separation Date Workers'
Compensation Plan from the Date of Distribution shall be Liabilities of Roxio.
4.10 LEAVE OF ABSENCE PLANS. Until the Distribution Date, Roxio
Employees shall continue to be eligible to participate in the Leave of Absence
Plans of Adaptec, subject to Section 4.5 (a) of this Agreement. Effective as of
the Distribution Date, Roxio Employees shall not be eligible to participate in
the Adaptec Leave of Absence Plans.
ARTICLE V
EQUITY AND OTHER COMPENSATION
5.1 BONUS AND RETENTION PLANS.
(a) Effective at the Separation Date (or such other date as
Roxio and Adaptec may mutually agree), Roxio shall cease to continue to be a
Participating Company in applicable Adaptec bonus plans that Roxio Employees
were eligible to receive awards under prior to the Separation Date. In Roxio's
sole and absolute discretion it may establish a Roxio bonus plan on or after the
Separation Date, and any award earned or accrued under such plan (as is
applicable) shall be the sole responsibility of Roxio.
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(b) CEQUADRANT AND WILDFILE RETENTION PLANS. Roxio will assume,
administer and be responsible for payments under the Cequadrat retention plan
and the Wildfile retention Plan upon and following the Separation Date. Any
award earned and payable under the Cequadrant and Wildfile retention Plans prior
to the Separation Date shall be the responsibility of and payable by Adaptec.
Any award that is earned and payable pursuant to the Cequadrant and Wildfile
retention Plans following the Separation Date shall be the responsibility of and
payable by Roxio.
5.2 ADAPTEC OPTIONS.
(a) OPTION ASSUMPTION BY ROXIO. At the Distribution Date (or
such other date as Adaptec and Roxio may mutually agree), each outstanding
Adaptec Option held by Roxio Employees, whether vested or unvested, shall be,
in connection with the Distribution, assumed by Roxio; provided, however,
that each outstanding Adaptec Option granted prior to December 31, 2000 and
held by Xxxxxxx Xxxxxxxxxxx Xxxxx, Chief Executive Officer, President and
member of the Roxio board of directors, whether vested or unvested, shall be,
in connection with the Distribution, assumed by Roxio, and any such Adaptec
Options granted to Xx. Xxxxx subsequent to December 31, 2000 shall terminate.
Each Adaptec Option so assumed by Roxio shall continue to have, and be
subject to, the same terms and conditions set forth in the applicable Adaptec
Stock Plans and as provided in the respective option agreements governing
such assumed Adaptec Option as of the Distribution Date (or such other date
as Adaptec and Roxio may mutually agree), except that (i) such assumed
Adaptec Option shall be exercisable for that number of whole shares of Roxio
common stock equal to the quotient of the number of shares of Adaptec common
stock that would be issuable upon exercise of such Adaptec Option as of the
Distribution Date (assuming that all vesting conditions applicable to such
option were then satisfied) divided by the Ratio, rounded down to the nearest
whole number of shares of Roxio common stock, and (ii) the per share exercise
price for the shares of Roxio common stock issuable upon exercise of such
assumed Adaptec Option shall be equal to the product determined by
multiplying the exercise price per share of Adaptec common stock at which
such Adaptec Option was exercisable as of the Distribution Date by the Ratio,
rounded up to the nearest whole cent.
(b) CERTAIN NON-U.S. OPTIONEES. Except as may otherwise be
agreed upon by Adaptec and Roxio this Section 5.2 shall govern the treatment of
Adaptec Options held by non-U.S. Roxio Employees.
5.3 STOCK PURCHASE PLAN. Through the Distribution Date, Roxio
Employees shall continue to be eligible for participation in the Adaptec Stock
Purchase Plan. Effective on or before the Distribution Date (or such other date
as Adaptec and Roxio may mutually agree), Roxio shall establish and sponsor a
Stock Purchase Plan for the benefit of Roxio Employees. Effective as of the
Distribution Date, Roxio Employees shall cease to be eligible to participate in
and to have any further payroll deductions withheld pursuant to the Adaptec
Stock Purchase Plan.
5.4 STOCK PLAN. Through the Distribution Date, Roxio Employees shall
continue to be eligible for participation in the Adaptec Stock Plan. Effective
on or before the Registration
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Date (or such other date as Adaptec and Roxio may mutually agree), Roxio shall
establish and sponsor a Stock Plan for the benefit of Roxio Employees, directors
and consultants.
ARTICLE VI
ADMINISTRATIVE PROVISIONS
6.1 SHARING OF PARTICIPANT INFORMATION. Adaptec and Roxio shall share,
or cause to be shared, all participant information that is necessary or
appropriate for the efficient and accurate administration of each of the Adaptec
Plans and the Roxio Plans during the respective periods applicable to such Plans
as Roxio and Adaptec may mutually agree. Adaptec and Roxio and their respective
authorized agents shall, subject to applicable laws of confidentiality and data
protection, be given reasonable and timely access to, and may make copies of,
all information relating to the subjects of this Agreement in the custody of the
other party or its agents, to the extent necessary or appropriate for such
administration.
6.2 COSTS AND EXPENSES. Roxio shall bear all costs and expenses,
including but not limited to legal and actuarial fees, incurred from and after
the Distribution Date in the design, drafting and implementation of any and all
plans and compensation structures which it establishes or creates and the
amendment of its existing plans or compensation structures.
ARTICLE VII
EMPLOYMENT-RELATED MATTERS
7.1 EMPLOYEE AGREEMENTS. DEFINITION. As used in this Section 7.1,
"Employee Agreement" means Adaptec's Employee Information Agreements and
corresponding agreements in foreign countries executed by each Adaptec employee.
(a) SURVIVAL OF ADAPTEC EMPLOYEE AGREEMENT OBLIGATIONS AND
ADAPTEC'S COMMON LAW RIGHTS. All former Adaptec employees transferred to Roxio
as of the Separation Date shall remain bound by the Adaptec Employee Agreements
as if such employees had been terminated by Adaptec as of the Separation Date;
PROVIDED, HOWEVER, that none of the following acts committed by former Adaptec
employees within the scope of their Roxio employment shall constitute a breach
of such Adaptec Employee Agreements: (i) the use or disclosure of Confidential
Information (as that term is defined in the former Adaptec employee's Adaptec
Employee Agreement) for or on behalf of Roxio, if such disclosure is consistent
with the license rights granted to Roxio and restrictions imposed on Roxio by
this Agreement or any other Ancillary Agreement or any other agreement between
the parties. Further, Adaptec retains any rights it has under statute or common
law with respect to actions by its former employees to the extent such actions
are inconsistent with the rights granted to Roxio and restrictions imposed on
Roxio under this Agreement, any other Ancillary Agreement or any other agreement
between the parties.
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(b) ASSIGNMENT, COOPERATION FOR COMPLIANCE AND ENFORCEMENT.
(i) Adaptec retains all rights under the Adaptec
Employee Agreements of all former Adaptec employees necessary to permit Adaptec
to protect the rights and interests of Adaptec, but hereby transfers and assigns
to Roxio its rights under the Adaptec Employee Agreements of all former Adaptec
employees to the extent required to permit Roxio to enjoin, restrain, recover
damages from or obtain specific performance of the Adaptec Employee Agreements
or obtain other remedies against any employee who breaches his/her Adaptec
Employee Agreement, and to the extent necessary to permit Roxio to protect the
rights and interests of the Roxio Business on the Separation Date.
(ii) Adaptec and Roxio agree, at their own respective
cost and expense, to use their reasonable efforts to cooperate as follows: (A)
Roxio shall advise Adaptec of: (1) any violation(s) of the Adaptec Employee
Agreement by former Adaptec employees, and (2) any violation(s) of the Roxio
Employee Agreement which affect Adaptec's rights; and (B) Adaptec shall advise
Roxio of any violations of the Adaptec Employee Agreement by current or former
Adaptec employees which affect Roxio's rights; PROVIDED, HOWEVER, that the
foregoing obligations shall only apply to violations which become known to an
attorney within the legal department of the party obligated to provide notice
thereof.
(iii) Adaptec and Roxio each may separately enforce the
Adaptec Employee Agreements of former Adaptec employees to the extent necessary
to reasonably protect their respective interests, PROVIDED, HOWEVER, that (x)
Roxio shall not, prior to the Distribution Date, commence any litigation
relating thereto without first consulting with Adaptec's General Counsel or
his/her designee and (y) Adaptec shall not, prior to the Distribution Date,
commence any litigation relating thereto against any former Adaptec employee who
is at the time a Roxio employee without first consulting with Roxio's Chief
Executive Officer or his/her designee.
(iv) Adaptec and Roxio understand and acknowledge that
matters relating to the making, performance, enforcement, assignment and
termination of employee agreements are typically governed by the laws and
regulations of the national, federal, state or local governmental unit where an
employee resides, or where an employee's services are rendered, and that such
laws and regulations may supersede or limit the applicability or enforceability
of this Section 7.1. In such circumstances, Adaptec and Roxio agree to take
action with respect to the employee agreements that best accomplishes the
parties' objectives as set forth in this Section 7.1 and that is consistent with
applicable law.
7.2 TERMS OF ROXIO EMPLOYMENT. At or before the Separation Date, Roxio
Employees shall be required to execute a new agreement regarding confidential
information and proprietary developments, if such form is required at the sole
and absolute discretion of Roxio. In addition, nothing in this Agreement shall
be construed to change the at-will status of the employment of any of the
employees of Adaptec or Roxio.
7.3 NON-SOLICITATION OF EMPLOYEES. Adaptec and Roxio each agree that,
effective as of the Distribution Date, Adaptec and Roxio shall not solicit or
recruit, without the other
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party's express written consent, the other party's employees for a period of
one (1) year following the Distribution Date. To the extent this prohibition
is waived by way of each party's express written consent, any recruitment
efforts by either Adaptec or Roxio during the period of one (1) year after
the Distribution Date shall be coordinated with appropriate management
personnel, as Adaptec and Roxio shall mutually agree, of Adaptec or Roxio.
Notwithstanding the foregoing, this prohibition on solicitation does not
apply to actions taken by a party either: (a) solely as a result of an
employee's affirmative response to a general recruitment effort carried out
through a public solicitation or general solicitation, or (b) as a result of
an employee's initiative.
7.4 EMPLOYMENT OF EMPLOYEES WITH UNITED STATES WORK VISAS. Roxio
Employees with U.S. work visas authorizing them to work for Roxio will continue
to hold work authorization for Roxio after the Separation Date. Roxio will
request amendments to the nonimmigrant visa status of Roxio Employees with U.S.
work visas authorizing them to work for Adaptec so that such employees may,
pursuant to the amended work visas, provides services to Roxio.
7.5 EMPLOYMENT LITIGATION. CLAIMS. Roxio shall have sole
responsibility for all employment-related claims regarding Roxio Employees that
arise out of facts, acts or omissions occurring on or after the Distribution
Date relating to, arising out of, or resulting from their employment with Roxio.
Adaptec shall have sole responsibility for all employment-related claims by or
regarding Adaptec employees and for all employment-related claims by or
regarding Roxio Employees that arise out of facts, acts or omissions occurring
prior to the Distribution Date.
ARTICLE VIII
GENERAL PROVISIONS
8.1 EFFECT IF SEPARATION AND/OR DISTRIBUTION DOES NOT OCCUR. If the
Separation, Registration and/or Distribution does not occur, then all actions
and events that are, under this Agreement, to be taken or occur effective as of
the Separation Date, Registration Date and/or Distribution Date, or otherwise in
connection with the Separation, Registration and/or Distribution, shall not be
taken or occur except to the extent specifically agreed by Roxio and Adaptec.
8.2 RELATIONSHIP OF PARTIES. Nothing in this Agreement shall be deemed
or construed by the parties or any third party as creating the relationship of
principal and agent, partnership or joint venture between the parties, the
understanding and agreement being that no provision contained herein, and no act
of the parties, shall be deemed to create any relationship between the parties
other than the relationship set forth herein.
8.3 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the Law of the State of California without
regard to the principles
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of conflicts of Laws thereunder, to the extent not preempted by the Employee
Retirement Income Security Act of 1974.
8.4 ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective legal representatives and
successors, and nothing in this Agreement, express or implied, is intended to
confer upon any other Person any rights or remedies of any nature whatsoever
under or by reason of this Agreement. This Agreement may be enforced separately
by Adaptec and Roxio. Neither party may assign this Agreement or any rights or
obligations hereunder, without the prior written consent of the other party, and
any such assignment shall be void; provided, however, either party may assign
this Agreement to a successor entity in conjunction with such party's
reincorporation.
8.5 SEVERABILITY. If any term or other provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to either party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible and in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the fullest possible extent.
8.6 INTERPRETATION. The headings contained in this Agreement and in
the table of contents to this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement. Any
capitalized term used in any Schedule but not otherwise defined therein shall
have the meaning assigned to such term in this Agreement. When a reference is
made in this Agreement to an Article, Section or Schedule, such reference shall
be to an Article of, Section of, or Schedule to this Agreement unless otherwise
indicated.
8.7 AMENDMENT. The Board of Directors of Roxio and Adaptec may
mutually agree to amend the provisions of this Agreement at any time or times,
for any reason, either prospectively or retroactively, to such extent and in
such manner as the Boards mutually deem advisable. Each Board may delegate its
amendment power, in whole or in part, to one or more Persons or committees as it
deems advisable. No change or amendment will be made to this Agreement, except
by an instrument in writing signed by authorized individuals.
8.8 TERMINATION. This Agreement may be terminated and the Distribution
abandoned at any time up to and prior to the Distribution Date by and in the
sole discretion of Adaptec without the approval of Roxio. In the event of
termination pursuant to this Section, no party shall have any liability of any
kind to the other party.
8.9 CONFLICT. This Agreement is not intended to address, and should
not be interpreted to address, the matters expressly covered by the Separation
Agreement and/or the other Ancillary Agreements.
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8.10 COUNTERPARTS. This Agreement, including the Schedules hereto (if
applicable) and the other documents referred to herein, may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement.
8.11 DISPUTE RESOLUTION. Any and all controversies, disputes or claims
arising out of, relating to, in connection with or resulting from this Agreement
(or any amendment thereto or any transaction contemplated hereby or thereby),
including as to its existence, interpretation, performance, non-performance,
validity, breach or termination, including any claim based on contract, tort,
statute or constitution and any claim raising questions of law, whether arising
before or after termination of this Agreement, shall be deemed a Dispute as
defined in the Separation Agreement and shall be resolved exclusively by, in
accordance with, and subject to the limitations set forth in the Separation
Agreement.
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IN WITNESS WHEREOF, each of the parties have caused this Employee Matters
Agreement to be executed on its behalf by its officers thereunto duly authorized
on the day and year first above written.
ADAPTEC, INC. ROXIO, INC.
By:_______________________________ By:__________________________________
Name:_____________________________ Name:________________________________
Title:____________________________ Title:_______________________________
[SIGNATURE PAGE TO EMPLOYEE MATTERS AGREEMENT]
