Employee Benefits Matters. (a) Except as otherwise provided in this Section 5.5, (i) each of the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements in effect on the date hereof (or as amended or established in accordance with or as permitted by this Agreement) shall be maintained in effect by the Surviving Corporation from and after the Effective Time with respect to the employees, former employees, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by such Benefit Plans immediately prior to the Effective Time, and the Surviving Corporation shall assume as of the Effective Time each Oryx Plan maintained by Oryx immediately prior to the Effective Time and perform such Benefit Plan in the same manner and to the same extent that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without cause.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Oryx Energy Co), Agreement and Plan of Merger (Oryx Energy Co)
Employee Benefits Matters. (a) Except as otherwise provided set forth herein, Parent shall, or shall cause the Surviving Corporation to, assume, honor and fulfill all of the Company Benefit Plans in accordance with their terms as in effect immediately prior to the date of this Section 5.5Agreement. Effective as of the Effective Time and for a period of no less than one (1) year thereafter, Parent shall provide, or shall cause the Surviving Corporation to provide, to each employee of the Company and/or the Company Subsidiaries who continues to be employed by Parent or the Surviving Corporation or any Subsidiary thereof (the “Continuing Employees”): (i) each annual rates of base salaries or wage levels and annual target cash incentive opportunities (and in respect of which, for the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements Company’s fiscal year ending in effect on 2016, the date hereof (or as amended or established in accordance with or as permitted by this Agreement) applicable performance metrics shall be maintained adjusted reasonably and in effect good faith to reflect the fact that the Company shall cease to be a publicly traded entity) which, in each case, shall be no less favorable than those provided to the Continuing Employees by the Surviving Corporation from Company and after the Effective Time with respect to the employees, former employees, directors or former directors Company Subsidiaries as of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by such Benefit Plans immediately prior to the Effective Time; (ii) equity-incentive compensation opportunities that, in each case, are no less favorable than those provided to similarly situated employees of Parent and the Parent Subsidiaries and (iii) all other compensation and employee benefits that are, in the aggregate, no less favorable than those provided to employees of Parent and the Parent Subsidiaries. Without limiting the generality of the foregoing, for such one (1)-year period following the Effective Time, Parent shall, and shall cause the Surviving Corporation shall assume as to, provide any Continuing Employee who experiences a termination of employment under circumstances that would have entitled such Continuing Employee to severance benefits under either the severance plan or policy of the Effective Time each Oryx Plan maintained by Oryx Company and the Company Subsidiaries applicable to such Continuing Employee immediately prior to the Effective Time or a severance plan or policy of Parent and perform the Parent Subsidiaries applicable to similarly situated employees of Parent and the Parent Subsidiaries at the time of such Benefit Plan in the same manner and termination, with severance benefits at a level at least equal to the same extent greater of those that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as have been provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any either such Xxxx-XxXxx Plan severance plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without causepolicy.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fairchild Semiconductor International Inc), Agreement and Plan of Merger (On Semiconductor Corp)
Employee Benefits Matters. (a) Except as otherwise provided in this Section 5.5Parent hereby agrees that, for a period commencing upon the Effective Time and ending on December 31, 2016 (or if shorter, during the period of employment), Parent shall, or it shall cause the Surviving Company and its Subsidiaries to, (i) provide each employee of the Company and of each of the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements in effect on the date hereof (or Company Subsidiaries as amended or established in accordance with or as permitted by this Agreement) shall be maintained in effect by the Surviving Corporation from and after of the Effective Time with respect to the employees(each, former employeesan “Employee”), directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are other than any Employee covered by a Collective Bargaining Agreement (each, a “Union Employee”) with at least the same level of base salary that was provided to each such Benefit Plans Employee immediately prior to the Effective Time, and (ii) provide each Employee with a cash incentive compensation opportunity that is at least equal to that provided to the Surviving Corporation shall assume as of the Effective Time each Oryx Plan maintained by Oryx Employee immediately prior to the Effective Time and perform such Benefit Plan (iii) provide the Employees with employee benefits (other than equity-based awards and defined benefit or non-qualified arrangements) that are no less favorable in the same manner aggregate than the employee benefits (other than equity-based awards and defined benefit or non-qualified arrangements) provided to such Employees immediately prior to the same extent that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from Effective Time. From and after the Effective Time Time, Parent shall cause the Surviving Corporation will Company and its Subsidiaries to honor in accordance with their terms, all Oryx PlansPlans as in effect immediately prior to the Effective Time that are applicable to any current or former employees or directors of the Company or any Company Subsidiary, including all employmentseverance agreements listed on Section 3.10(a) of the Company Disclosure Schedule, change-in-controlit being understood that the foregoing shall not limit the right of Parent and its Subsidiaries, severanceincluding the Surviving Company, termination, consulting and unfunded retirement to amend or benefit agreements (including terminate any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), Plan in accordance with its terms. Notwithstanding the terms thereofforegoing, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by any applicable cash incentive compensation performance period in effect as of the Closing Date and scheduled to end after December 31 of the year in which the Closing Date occurs shall end on December 31 of the year in which the Closing Date occurs, and any applicable Oryx Planpayment thereunder shall be made subject to appropriate adjustment and pro-ration, and (y) the following performance period shall begin on January 1 of the immediately following calendar year. With respect to comply with income or payroll tax withholding obligationsUnion Employees, Parent shall, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit cause the Surviving Corporation from exercising any reserved right contained Company and its Subsidiaries to, honor in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had accordance with their terms all applicable Collective Bargaining Agreements as in effect immediately prior to the Effective Time, or which it being understood that the foregoing shall not limit the right of Parent and its Subsidiaries, including the Surviving Corporation has after the Effective TimeCompany, to amend, modify, suspend, revoke amend or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant Collective Bargaining Agreement in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or any of accordance with its Subsidiaries or affiliates for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without causeterms.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Danaher Corp /De/), Agreement and Plan of Merger (Pall Corp)
Employee Benefits Matters. (a) Except Parent shall cause the Final Surviving Entity to honor and fulfill all written employment agreements to which the Company or any of its Subsidiaries is a party at the date of this Agreement (or otherwise becomes a party on or after the date of this Agreement without breach of the terms of this Agreement) and all of the employee benefit plans maintained or sponsored by the Company or any of its Subsidiaries at the date of this Agreement (or otherwise maintained or sponsored on or after the date of this Agreement without breach of the terms of this Agreement) for the benefit of any employees or former employees of the Company or any of its Subsidiaries (including, without limitation, the Material Employment Agreements and Material Benefit Plans) (collectively, the “Company Benefit Plans”) in effect as otherwise provided of immediately prior to the First Effective Time, in this Section 5.5accordance with their terms as in effect immediately prior to the First Effective Time. Effective as of the First Effective Time and for a period of no less than one year thereafter, Parent shall provide, or shall cause the Final Surviving Entity to provide, to each employee of the Company or its Subsidiaries who continues to be employed by the Parent or the Final Surviving Entity or any Subsidiary thereof (collectively, the “Continuing Employees”), (i) each compensation (including, without limitation, cash incentive compensation opportunities and any equity-based compensation (other than pursuant to the LTI Plans)), that is not less favorable than the compensation they were receiving as employees of the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements in effect on Company immediately before the date hereof (or as amended or established in accordance with or as permitted by this Agreement) shall be maintained in effect by the Surviving Corporation from and after the First Effective Time with (excluding, for purposes of compensation in respect to of periods on or after January 1, 2017, cash incentive compensation opportunities under the employees, former employees, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by such Benefit Plans immediately prior to the Effective Time, and the Surviving Corporation shall assume as of the Effective Time each Oryx Plan maintained by Oryx immediately prior to the Effective Time and perform such Benefit Plan in the same manner and to the same extent that Oryx would be required to perform thereunder2016 WCI Management Incentive Compensation Plan), and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after employee benefits that (A) if the First Effective Time the Surviving Corporation will honor all Oryx Plansis on or before December 31, including all employment2016, change-in-controlare, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by on and before December 31, 2016, not less favorable than the applicable Oryx Planemployee benefits they were receiving as employees of the Company immediately before the First Effective Time, and (y) beginning January 1, 2017, the same as those provided to comply with income employees of Parent or payroll tax withholding obligationsits Subsidiaries in South Florida who are performing similar functions, and (B) if the First Effective Time is on or after January 1, 2017, are, from the First Effective time until December 31, 2017, at the election of Parent, either (zx) under other applicable law); provided, however, that, except the same as those being provided under applicable law, nothing contained in this Section 5.5(a) shall limit by the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had Company immediately prior to the First Effective Time, or which (y) the Surviving Corporation has after same as those provided by Parent and its Subsidiaries to their similarly-situated employees during such period (provided that, in all cases, from the First Effective Time through December 31, 2017, the vacation and other paid time off policies applicable to the Continuing Employees (and, for the avoidance of doubt, the timing of accrual thereunder) shall be no less favorable than those applicable to the Continuing Employees immediately prior to the First Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan). Without limiting Effective as of the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the First Effective Time and eligibility for early retirement) under thereafter, Parent shall provide, or shall cause the Final Surviving Entity to provide, that periods of employment with the Company (including any Benefit Plan current or former Affiliate of the Surviving Corporation Company or any predecessor of the Company) shall be taken into account for all purposes under all employee benefit plans maintained by Parent or any of its Subsidiaries or affiliates for service credited (“Parent Benefit Plans”) for the corresponding purpose under such Benefit Plan made available to such participantbenefit of the Continuing Employees, but not including without limitation vacation or other paid-time-off plans or arrangements, 401(k), pension or other retirement plans and any severance or health or welfare plans (other than for purposes of determining any accrued benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting or as would result in a duplication of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without causebenefits).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lennar Corp /New/), Agreement and Plan of Merger (WCI Communities, Inc.)
Employee Benefits Matters. (a) Except as otherwise provided in this Section 5.5, (i) each of the XxxxKerr-XxXxx McGee Plans and Oryx Plans and other employment arrangements in effect on the date hereof xxxxxx (or as amended or established in accordance with or as permitted by this Agreement) shall be maintained in effect by the Surviving Corporation from and after the Effective Time with respect to the employees, former employees, directors or former directors of XxxxKerr-XxXxx McGee and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by cxxxxxx xx such Benefit Plans immediately prior to the Effective Time, and the Surviving Corporation shall assume as of the Effective Time each Oryx Plan maintained by Oryx immediately prior to the Effective Time and perform such Benefit Plan in the same manner and to the same extent that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any such XxxxKerr-XxXxx McGee Plan or Oryx Plan or any other right which XxxxKerr-XxXxx McGee or Oryx had prior to the Effective txx Xxxxxxxve Time, or which the Surviving Corporation has after xxx xxxxx the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any XxxxKerr-XxXxx McGee Plan or Oryx Plan shall receive credit for purposes of eligibility to participateparticxxxxx, vesting xxxting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or XxxxKerr-XxXxx McGee employees on or after the Effective Time, the Surviving Corporation will cause such Benefit cauxx xxxx Xxnefit Plan to provide credit for any co-co- payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or XxxxKerr-XxXxx McGee Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting xxx xxxxxng periods that would not have applied to such employees under the applicable Oryx Plan or XxxxKerr-XxXxx McGee Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx XxXxe and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit xxxxxxxx xenefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without cause.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Kerr McGee Corp), Agreement and Plan of Merger (Kerr McGee Corp)
Employee Benefits Matters. (a) Except as otherwise provided in this Section 5.5Parent hereby agrees that, for a period of one year after the Effective Time, it shall, or it shall cause the Surviving Corporation and its Subsidiaries to, (i) provide each employee of the Xxxx-XxXxx Plans Company and Oryx Plans and other employment arrangements in effect on the date hereof (or Subsidiaries as amended or established in accordance with or as permitted by this Agreement) shall be maintained in effect by the Surviving Corporation from and after of the Effective Time (each, an “Employee”), with respect (x) base salary and incentive compensation opportunities (other than equity-based compensation) that are substantially comparable in the aggregate to the employees, former employees, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by those provided to such Benefit Plans Employees immediately prior to the Effective Time, and (y) employee benefits (other than equity-based compensation) that are substantially comparable in the Surviving Corporation shall assume as of the Effective Time each Oryx Plan maintained by Oryx aggregate to those provided to such Employees immediately prior to the Effective Time and perform such Benefit Plan in under the same manner and Plans listed on Section 3.11(a) of the Company Disclosure Schedule, taking into account changes pursuant to Section 5.01(g). Nothing herein shall be deemed to be a guarantee of employment for any Employee, or to restrict the same extent that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time right of the Surviving Corporation will honor all Oryx Plansto terminate any Employee. Notwithstanding the foregoing, including all employmentnothing contained herein, change-in-control, severance, termination, consulting and unfunded retirement whether express or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Planimplied, (yi) to comply with income shall be treated as an amendment or payroll tax withholding obligationsother modification of any Employee Plan, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(aii) shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or any of its Subsidiaries to amend, terminate or affiliates for service credited for otherwise modify any Employee Plan following the corresponding purpose under such Benefit Plan made available to such participantClosing Date. Parent, but not for purposes of benefit accrual under any defined benefit pension plan unless Merger Co and the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, Company acknowledge and agree that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable all provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 6.06 with respect to Employees are included for the sole benefit of Parent, Merger Co and the Company, and that nothing herein, whether express or implied, shall be deemed to constitute an employment contract between the Surviving Corporation andcreate any third party beneficiary or other rights (i) in any other Person, including, without limitation, any Employees, former Employees, any participant in any Employee Plan, or otherwise confer any rights upon, any individualdependent or beneficiary thereof, or constitute a waiver of (ii) to continued employment with Parent, the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at of their respective Affiliates or continued participation in any time, with or without causeEmployee Plan.
Appears in 1 contract
Employee Benefits Matters. (a) Except as otherwise provided For a period of two (2) years after the Effective Time, Acquiror shall cause the Surviving Corporation to provide employee benefits under plans, programs and arrangements, which, in this Section 5.5the aggregate, (i) each will provide benefits to the employees of the Xxxx-XxXxx Plans Company and Oryx Plans the Company Subsidiaries which are no less favorable, in the aggregate, than those provided pursuant to the plans, programs and other employment arrangements of the Company in effect and disclosed to Acquiror on the date hereof; provided, however, that nothing herein shall interfere with the Surviving Corporation's right or obligation to make such changes to such plans, programs or arrangements as are necessary to conform with applicable law; provided, further, however, that with respect to any such plan, program or arrangement that provides for the issuance of the Company's Common Stock, or options or securities exercisable or convertible into the Company's Common Stock, the Surviving Corporation shall be required to adopt equity compensation programs providing for the issuance of common stock of Acquiror to such employees. (b) In furtherance of the provisions of Section 7.9(a), Acquiror shall cause the Surviving Corporation to provide to those executives listed on Schedule 7.9 hereto with the employee benefits provided to each such executive on the date hereof (or and for the time period set forth in the Company's employment and/or severance agreements with such executives as amended or established in accordance with or as permitted set forth on Schedule 7.9 hereto; provided, however, that notwithstanding the foregoing, to the extent that any contributions under a qualified retirement plan would be prohibited by this Agreement) applicable law, Acquiror shall be maintained in effect by cause the Surviving Corporation to make cash payments from and after the Effective Time with respect time to time to such executives equal to the employeesvalue of such contributions which can not be so made under applicable law, former employees, directors or former directors of Xxxx-XxXxx as and its Subsidiaries, when such contributions would have been made as noted on Schedule 7.9. The employee benefits provided to such executives on the date hereof under the Company's employment and/or severance agreements with such executives are detailed on Schedule 7.9 hereto. (c) Acquiror acknowledges and Oryx and its Subsidiaries, respectively, who are covered by such Benefit Plans immediately agrees that prior to the Effective Time, the Company will take all such actions as may be necessary to cause (i) all participants to become fully vested in their benefits under the Company's 401(k) Plan, and the Surviving Corporation shall assume as of the Effective Time each Oryx Plan maintained by Oryx immediately (ii) employer contributions to be made with respect to periods prior to the Effective Time and perform to the Company's 401(k) Plan to the extent that such Benefit Plan contributions would be made if the participants were employed by the Company on the last day of the calendar year in which the Closing occurs. Acquiror will allow employees of PCI to continue to participate in the same manner and to Company's 401(k) Plan at least until the same extent that Oryx would be required to perform thereunder, and end of the calendar year in which the Closing occurs. (iid) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement On or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Company shall pay a pro-rated portion of the annual bonuses and gainshare that would have otherwise been payable to the eligible employees of the Company after the end of the year, such bonuses and gainshare to be consistent with the Company's 1997 Management and Professional Bonus Plan and the Company's Gainshare Program, with past practice, and the estimates contained in Schedule 7.9(d). (e) Acquiror agrees that it will not allow the Surviving Corporation has to amend or terminate the Xxxxxx Wireless, Inc. Change of Control Severance Program for a period of one (1) year after the Effective Time. (f) Prior to Closing, the Company shall make, or shall make accruals on its financial statements for, all payments required to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting be made by the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes Company under the terms of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or by any of its Subsidiaries or affiliates for service credited for the corresponding purpose under such law applicable to any Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of all periods through the Surviving Corporation Closing Date. (g) On or any of its Subsidiaries or affiliates made available prior to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will Company shall take, or cause to be taken, such Benefit Plan actions as are reasonably necessary to: (i) cause the Company to provide credit for any coadopt the PCI plans providing medical, dental, vision, prescription drug, flexible spending account, pre-payments or deductibles by such employees tax premium contribution, travel accident, accidental death and dismemberment, long term disability, and life insurance benefits for the remainder benefit of Company employees; (ii) add the Company as a contractholder under insurance contracts providing insurance coverage, and administrative contracts relating to, for one or more of the benefits listed in the immediately preceding paragraph (i) above as well as workers compensation liability coverage period during which and provide that such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, contracts continue as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and Company after the Effective Time. However, no provision contained in this ; (iii) substitute the Company for PCI as the party to the Xxxxxx Communications Health Care Expense Fund which is a Code Section 5.5 shall be deemed 501(c)(9) trust used to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver fund certain of the Surviving Corporation's right benefits listed in paragraph (i) above and any other trust or account which is used with respect to amendflexible spending accounts or pre- tax premium contributions for Company employees; and (iv) except as provided in Section 7.9(c) hereof, modifycease participation and coverage in the Company plans, limit or restrict trusts and insurance contracts referred to in paragraphs (i) through (iii) above with respect to all individuals who are not Company employees as of the employment of, or to discharge, any employee at any time, with or without causeEffective Time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Price Communications Corp)
Employee Benefits Matters. (a) Except as otherwise provided in this Section 5.5, Xxxxxx-Xxxxxxx Employees (i) each of the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements in effect on the date hereof (or as amended or established in accordance with or as permitted by this Agreement) shall be maintained in effect by the Surviving Corporation from and after the Effective Time with respect to the employees, former employees, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by such Benefit Plans immediately prior to US). Following the Effective Time, and Pfizer shall comply with the terms of, or cause the Surviving Corporation to comply with the terms of, all Xxxxxx- Xxxxxxx Benefit Plans and related funding arrangements in accordance with their respective terms. Nothing herein shall assume as require Pfizer to continue any particular Benefit Plan or prevent the amendment or termination thereof; provided, however, that Pfizer shall not take any action (by way of amendment, termination or otherwise) which is in violation of the Effective Time each Oryx terms of any Benefit Plan maintained by Oryx immediately prior or applicable law. Subject to the Effective Time and perform such Benefit Plan in the same manner and to the same extent that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employeefirst two sentences of this Section 5.6(a), from and after the Effective Time until the Surviving Corporation will honor all Oryx Plansfirst anniversary of the Effective Time, including all employment, changePfizer shall provide compensation and employee benefits under Benefit Plans (as defined in Section 8.11) to the employees and former employees of Xxxxxx-in-control, severance, termination, consulting Xxxxxxx and unfunded retirement or benefit agreements its Subsidiaries who are employed in the United States (including Puerto Rico) and employees designated by Xxxxxx-Xxxxxxx as "foreign service colleagues" (the "Xxxxxx- Xxxxxxx Employees (US)") that are substantially comparable in the aggregate to those provided to such persons pursuant to the Xxxxxx-Xxxxxxx Benefit Plans in effect immediately prior to the date hereof. The term "Xxxxxx- Xxxxxxx Employees (US)" shall not include Xxxxxx-Xxxxxxx Employees (Non-US) or Xxxxxx-Xxxxxxx Employees (Collective Bargaining Units). With respect to any obligations arising from Benefit Plans in which any Xxxxxx-Xxxxxxx Employees (US) first become eligible to participate, on or after the Merger constituting a "change of control" Effective Time, Pfizer shall: (A) waive all pre-existing conditions exclusions and waiting periods with respect to participation and coverage requirements applicable to Xxxxxx- Xxxxxxx Employees (US) under any Pfizer plans in which such employees may be eligible to participate after the Effective Time, except to the extent that such pre-existing conditions exclusions or "corporate change" thereunder, as applicable), in accordance with waiting periods apply to changes made by the employee under the terms thereof, without offset, deduction, counterclaim, interruption or deferment of the Pfizer plans on the same basis as would apply to a Pfizer employee making a similar change; (other than offsets, deductions, counterclaims, interruptions or deferments B) provide each Xxxxxx-Xxxxxxx Employee (xUS) permitted by with credit for any co- payments and deductibles paid prior to the applicable Oryx Plan, Effective Time (y) to comply with income or payroll tax withholding obligations, or (z) the same extent such credit was given under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx analogous Benefit Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, ) in satisfying any applicable deductible or out-of-pocket requirements under any Pfizer plans in which the Surviving Corporation has such employees may be eligible to participate after the Effective Time; and (C) recognize all service of the Xxxxxx-Xxxxxxx Employees (US) with Xxxxxx-Xxxxxxx and its Subsidiaries for all purposes (including, to amendwithout limitation, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility credit, entitlement to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISAbenefits, and (iibenefit accrual) with respect in any Pfizer plan in which such employees may be eligible to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or participate after the Effective Time, to the Surviving Corporation will cause extent such Benefit Plan to provide credit for any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees service is taken into account under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior Pfizer plan; provided, that the foregoing shall not apply to the availability extent it would result in duplication of benefits under multiple plans or would result in benefit accruals under multiple defined benefit pension plans with respect to the replacement Benefit same period of service without offset for benefits accrued under a predecessor defined benefit pension plan. Xxxxxx-Xxxxxxx'x board of directors will not declare an "other circumstance" to have occurred within the meaning of Section 4.2(y) of Xxxxxx-Xxxxxxx'x Enhanced Severance Plan. Xxxx-XxXxx and Oryx will cooperate on and after During the period from the date hereof of this Agreement and continuing until the Effective Time, Xxxxxx-Xxxxxxx agrees as to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation itself and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 that neither Xxxxxx-Xxxxxxx nor any of its Subsidiaries shall take or cause to be deemed to taken any action that would constitute an employment contract between "Activation Event" (as defined in Section 4.2 of Xxxxxx-Xxxxxxx'x Enhanced Severance Plan), other than in the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver ordinary course of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without causebusiness.
Appears in 1 contract
Employee Benefits Matters. (a) Except as otherwise provided in this Section 5.5, (i) each of the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements in effect on the date hereof The Sellers shall (or as amended or established shall cause the Company to) terminate the employment of all Covered Employees effective at 11:59 p.m. (Eastern Standard Time) on December 31, 2017 (except that in accordance with or as permitted the case of Covered Employees identified by this Agreement) the Buyer to the Seller in writing at least two days prior to the Closing, such termination shall be maintained in effect effective on or before December 30, 2017 and Seller shall immediately provide to Buyer copies of such written termination notices). Effective at 12:00 a.m. on January 1, 2018, Buyer shall (or shall cause the Company to) hire such Covered Employees subject to each such Covered Employee qualifying for employment under any applicable Legal Requirements and satisfying hiring and background check requirements, including E-Verify (the Covered Employees hired by the Surviving Corporation from Buyer or the Company, the “Hired Employees”). Buyer shall take such action as may be necessary so that on and after the Effective Time Closing, the Hired Employees shall, for so long as their employment with respect to the employeesBuyer or any of its Affiliates continues, former employeesbe provided base salary or hourly wages (as applicable) and employee benefits, directors plans and programs (including life insurance, welfare, severance and fringe benefits, but excluding profit sharing or former directors of Xxxx-XxXxx and its Subsidiariesincentive compensation arrangements, equity or otherwise, and Oryx and its Subsidiariesretention awards) which, respectivelyin the aggregate, who are covered by such Benefit Plans are: (a) not materially less favorable than those currently provided to Hired Employees immediately prior to the Effective Time, and Closing; or (b) substantially the Surviving Corporation shall assume same as those made available by Buyer to similarly situated employees of the Effective Time each Oryx Plan maintained by Oryx immediately prior Buyer to the Effective Time extent permitted by the Buyer’s benefits programs, applicable plan provisions, or other legal or contractual constraints. Subject to applicable Legal Requirements and perform such Benefit Plan in the same manner and to the same extent that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employeeapplicable Tax qualification requirements, from and after the Effective Time Closing Date, Buyer shall cause all Hired Employees to be provided credit for all years of service (to the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting same extent as service is recognized under the applicable plans and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change programs of control" or "corporate change" thereunder, as applicable), in accordance Buyer to similarly situated employees) with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had Company prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, Closing: (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for eligibility and vesting purposes, except for purposes of eligibility qualifying for subsidized early retirement benefits or to participate, vesting and eligibility to receive benefits (such as higher rates the extent it would result in the duplication of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension planbenefits; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan for purposes of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or vacation accrual after the Effective Time, Closing Date as if such service with the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles by such employees for Company was service with the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without causeBuyer.
Appears in 1 contract
Samples: Membership Interest and Stock Purchase Agreement (Chase Corp)
Employee Benefits Matters. (a) Except To the extent any “disqualified individual” (as otherwise provided such term is defined for purposes of Section 280G of the Code (hereafter, “Section 280G”)) of the Company, Cerevast, Novokera, Aegeria or any of their respective Subsidiaries (a “Disqualified Individual”) would be entitled to any payment or benefit as a result of or in this connection with the transactions contemplated by the Target Acquisitions (either alone or upon the occurrence of any additional or subsequent events) and such payment or benefit would constitute an “excess parachute payment” under Section 5.5280G or would result in the imposition of any excise Tax imposed under Section 4999 of the Code, the Company, Cerevast, Novokera and/or Aegeria, as applicable, shall, prior to the Target Acquisitions: (i) obtain a binding written waiver (each, a “Section 280G Waiver”) from each Disqualified Individual of such Disqualified Individual’s right to receive any portion of such parachute payments that exceeds three times such Disqualified Individual’s “base amount” within the meaning of Section 280G(b)(3) of the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements in effect on Code less one dollar (collectively, the date hereof (or as amended or established in accordance with or as permitted by this Agreement“Excess Parachute Payments”) shall be maintained in effect by the Surviving Corporation from and after the Effective Time with respect to the employees, former employees, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who extent such Excess Parachute Payments are covered by such Benefit Plans immediately prior not subsequently approved pursuant to the Effective Time, and the Surviving Corporation shall assume as of the Effective Time each Oryx Plan maintained by Oryx immediately prior to the Effective Time and perform such Benefit Plan in the same manner and to the same extent that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), stockholder vote in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment requirements of Section 280G(b)(5)(B) of the Code and Treasury Regulations Section 1.280G-1 thereunder (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law“280G Stockholder Approval Requirements”); provided, however, that, except as provided under applicable law, nothing contained (ii) solicit a vote of stockholders in this Section 5.5(a) shall limit a manner that satisfies the Surviving Corporation from exercising any reserved right contained 280G Stockholder Approval Requirements in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan respect of the Surviving Corporation or any of its Subsidiaries or affiliates for service credited for the corresponding purpose under Excess Parachute Payments payable to all such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension planDisqualified Individuals who have executed a Section 280G Waiver; provided, however, that such crediting of service the Company, Cerevast, Novokera and/or Aegeria, as applicable, shall not operate be required to cause pay any amounts or provide any benefits to any Person in order to obtain such Benefit Plan to fail to comply approval. The Section 280G Waivers, calculations, disclosure, equityholder consents, and any other documents prepared, issued, distributed, adopted or executed in connection with the applicable provisions implementation of the Code and ERISA, and (iithis Section 8.11(a) with respect shall be provided to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately Purchaser no later than 10 Business Days prior to the availability Target Acquisitions and shall be subject to Purchaser’s prior reasonable review and comment and the Company shall implement any comments provided by Purchaser. To the extent any Excess Parachute Payments are not approved as contemplated above, such Excess Parachute Payments shall not be made or provided to the extent waived in the Section 280G Waivers. At least 3 Business Days prior to the Target Acquisitions, the Company shall deliver to Purchaser written evidence of satisfaction of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors requirements of this Section 8.11(a) or written notice of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without causenonsatisfaction thereof.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Denali Capital Acquisition Corp.)
Employee Benefits Matters. For not fewer than twelve (a12) Except as otherwise provided in this Section 5.5months following the Closing Date, Buyer will provide (or cause to be provided) to each of the employees of the Company Entities on the Closing Date (each, a “Continuing Employee”), while employed by Buyer, any of its Affiliates or any Company Entity following the Closing Date, (i) each of base salary or hourly wages and bonus opportunities no less favorable than the Xxxxbase salary or hourly wages and bonus opportunities provided to such Continuing Employee immediately prior to the date hereof and (ii) other employee benefits (excluding equity-XxXxx Plans and Oryx Plans and other employment arrangements based compensation) that are substantially comparable, in effect on the aggregate, to the employee benefits provided to the Continuing Employees immediately prior to the date hereof (or as amended or established in accordance with or as permitted by this Agreement) excluding equity-based compensation). Buyer shall be maintained in effect by credit under the Surviving Corporation from and after the Effective Time with respect to the employees, former employees, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by such Benefit Plans immediately prior to the Effective Time, and the Surviving Corporation shall assume as employee benefit plans of the Effective Time each Oryx Plan maintained by Oryx immediately prior to the Effective Time and perform such Benefit Plan in the same manner and to the same extent that Oryx would be required to perform thereunder, and Buyer or its Subsidiaries (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx “Buyer Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable”), in accordance if applicable, all service by each Continuing Employee with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation Company or any of its Subsidiaries (or affiliates predecessors thereof) prior to the Closing Date for all purposes to the same extent such service credited for was recognized by the corresponding purpose under Company Entities (or predecessors thereof) as of the Closing Date, except, in each case, to the extent such Benefit Plan made available treatment would result in a duplication of benefits or compensation. Buyer shall use commercially reasonable efforts to such participant, but not for purposes of benefit accrual cause (x) to be waived under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Buyer Plan to fail to comply with the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions exclusion and actively-at-work requirements and similar limitations, eligibility waiting periods that would and evidence of insurability requirements under any Buyer Plan to the same extent such conditions were waived or not have applied to such employees applicable under the applicable Oryx corresponding Employee Benefit Plan or Xxxx-XxXxx Plan immediately and (y) any covered expenses incurred prior to the availability Closing Date by any Continuing Employee (or covered spouse or dependent thereof) for the plan year in which the Closing Date occurs, unless the Closing Date is the last day of such plan year, to be credited for purposes of satisfying applicable deductible, coinsurance and maximum out-of-pocket provisions after the replacement Benefit Closing Date under any Buyer Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained Nothing in this Section 5.5 6.08, express or implied, shall confer upon any Person other than the parties to this Agreement and their respective permitted successors and assigns any legal or equitable rights or remedies of any nature whatsoever (including any third-party beneficiary rights) with respect to the provisions of this Section 6.08. In addition, nothing in this Section 6.08 shall be deemed treated as an amendment or other modification of any employee benefit plan or limit the right of Buyer to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, terminate any employee at any time, with or without causetime and for any reason.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Enpro Industries, Inc)
Employee Benefits Matters. During the period commencing at the Effective Time and ending on December 31, 2006, Parent shall and shall cause the Company and the Subsidiaries to (a) Except as otherwise provided in this Section 5.5maintain and honor, (i) each of the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements in effect on the date hereof (or as amended or established in accordance with their terms, all employment, severance and termination contracts and agreements between individual Company Employees, on the one hand, and the Company or any Subsidiary, on the other hand, as permitted by this Agreement) shall be maintained in effect by the Surviving Corporation from and after the Effective Time with respect to the employees, former employees, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by such Benefit Plans immediately prior to the Effective Time; provided, and the Surviving Corporation however, that nothing shall assume as of the Effective Time each Oryx Plan maintained by Oryx immediately prior to the Effective Time and perform prevent Parent from terminating any such Benefit Plan contract or agreement that is terminable in the same manner and to the same extent that Oryx would be required to perform thereunderaccordance with its terms, and (iib) except as may be expressly provide current and former Company Employees and the directors of the Company or any Subsidiary with benefits which in the aggregate are substantially comparable to those currently provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment to such employees (other than offsetsstock options or other plans involving the issuance of securities of Parent, deductions, counterclaims, interruptions the Company or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable lawany Subsidiary); provided, however, thatthat employees covered by collective bargaining agreements need not be provided with such benefits and; provided, except as provided under applicable lawfurther, that nothing contained in this Section 5.5(a) herein shall limit obligate Parent or the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior Company to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Planprovide a particular type of benefit. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan Company Employees shall receive credit for purposes of eligibility to participateeligibility, participation and vesting and eligibility to receive benefits (such as higher rates of matching contributions but not for service after the Effective Time and eligibility for early retirementbenefit accruals) under any Benefit Plan of the Surviving Corporation employee benefit plan, program or arrangement established or maintained by Parent or any of its Subsidiaries or affiliates subsidiaries for service credited for accrued or deemed accrued prior to the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under Effective Time with the Company or any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension planSubsidiary; provided, however, that such crediting of service shall not operate to cause duplicate any benefit or the funding of any such Benefit Plan benefit. In addition, Parent shall waive, or cause to fail be waived, any limitations on benefits relating to comply with any pre-existing conditions to the applicable provisions same extent such limitations are waived under any comparable plan of Parent or its subsidiaries and recognize, for purposes of annual deductible and out-of-pocket limits under its medical and dental plans, deductible and out-of-pocket expenses paid by employees of the Code Company and ERISAthe Subsidiaries in the calendar year in which the Effective Time occurs. Nothing in this Section 6.03 is intended to restrict or prohibit Parent, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation Company or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or Subsidiary after the Effective TimeTime from amending, the Surviving Corporation will cause such Benefit Plan to provide credit for modifying or terminating any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as to the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees extent permitted under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability terms of the replacement Benefit such Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without cause.
Appears in 1 contract
Employee Benefits Matters. (a) Except as otherwise provided in this Section 5.5, (i) each of the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements in effect on the date hereof (or as amended or established in accordance with or as permitted specifically contemplated by this Agreement) shall be maintained in effect by the Surviving Corporation from Agreement and after the Effective Time except with respect to employees of the employeesSeller, former employees, directors the Quadrem Group or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are any Quadrem Subsidiary whose employment is covered by a PEO Agreement (each such Benefit Plans employee, a “Co-Employed Employee”), all employees of the Seller, the Quadrem Group or any Quadrem Subsidiary who become employees of the Buyer or of any of its Subsidiaries after the Closing shall continue in their existing benefit plans on substantially the same terms and conditions in the aggregate as in effect immediately prior to the Effective TimeClosing until such time as, in Buyer’s sole discretion, an orderly transition can be accomplished to employee benefit plans and programs maintained by Buyer for its and its affiliates’ employees in the Surviving Corporation United States and outside of the United States. Each Co-Employed Employee who either remains employed by the Quadrem Group or any Quadrem Subsidiary after the Closing or becomes an employee of the Buyer or any of its Subsidiaries after the Closing shall assume become eligible for coverage under the employee benefits plans and programs maintained by the Buyer for its and its affiliates’ employees as soon as is practicable following the Closing. In each case, to the extent permitted under Buyer’s employee benefit plans and programs, as in effect from time to time, if applicable, such employee benefits shall be provided without any preexisting conditions, limitations or exclusions to the extent no such limitations or exclusions applied as of the Effective Time Closing to such employees under the plans of Seller, the Quadrem Group and each Oryx Plan maintained by Oryx Quadrem Subsidiary in which such employees participate immediately prior to the Effective Time Closing Date and perform with credit for all annual deductibles and co-payments made under such Benefit Plan applicable entity’s employee benefit plans for the covered expenses already incurred by employees of Seller, the Quadrem Group and each Quadrem Subsidiary for the year in which the same manner Closing occurs. To the extent permitted under Buyer’s employee benefit plans and to the same extent that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunderprograms, as applicablein effect from time to time, if applicable (it being understood that Buyer’s equity incentive and cash bonus plans shall not constitute such an employee benefit plan or program), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) Buyer shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan provide employees of the Surviving Corporation Seller, the Quadrem Group and each Quadrem Subsidiary who become employees of the Buyer or any of its Subsidiaries or affiliates who remain employed with the Company or any Quadrem Subsidiary after the Closing (all such employees, “Continuing Employees”) with credit for all service credited for with the corresponding purpose applicable employer entity under such Benefit Plan made available to such participantall applicable employee benefit plans, but not including for purposes of benefit accrual under any defined benefit pension eligibility, waiting periods, vesting and other plan unless rights and features, to the participant's accrued benefit liability related to same extent such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with would have been recognized by the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective TimeSeller, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments Quadrem Group or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plana Quadrem Subsidiary (in each case, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees applicable) under the applicable Oryx Plan or Xxxx-XxXxx Plan comparable plans immediately prior to the availability Closing Date. Buyer shall take such reasonable actions as are necessary to allow Continuing Employees to participate in the health, welfare and other benefit programs of Buyer, to the replacement Benefit Plan. Xxxx-XxXxx extent permitted by Buyer’s benefits and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation andbenefits programs, or otherwise confer any rights upon, any individual, or constitute a waiver alternative benefits programs in the aggregate that are substantially equivalent to those applicable to employees of Buyer in similar functions and positions on similar terms. Such employees may be eligible to participate in Buyer’s equity incentive and cash bonus plans at the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without causesole discretion of Buyer.
Appears in 1 contract
Samples: Escrow Agreement (Ariba Inc)
Employee Benefits Matters. (a) Except The Surviving Corporation shall take all reasonable actions necessary or appropriate to permit the employees who as otherwise provided in this Section 5.5, (i) each of the Xxxx-XxXxx Plans Effective Time were employed by the Company and Oryx Plans and other employment arrangements in effect on the date hereof (or as amended or established in accordance with or as permitted by this Agreement) shall who continue to be maintained in effect employed by the Surviving Corporation after the Effective Time (the "RETAINED EMPLOYEES") to continue to participate from and after the Effective Time with respect to in the employees, former employees, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by such Company Benefit Plans in which such Retained Employees were participating immediately prior to the Effective Time. Notwithstanding the foregoing, and the Surviving Corporation shall assume as of the Effective Time each Oryx Plan maintained by Oryx immediately prior to the Effective Time and perform such Benefit Plan in the same manner and to the same extent that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in permit any such Xxxx-XxXxx Plan employee benefit plan or Oryx Plan arrangement to be terminated or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees discontinued on or after the Effective Time, provided that the Surviving Corporation will cause shall (a) take all reasonable actions necessary or appropriate to permit the Retained Employees participating in such Benefit employee benefit plan or arrangement to immediately thereafter participate in employee benefit plans or arrangements substantially comparable to those maintained with respect to other Surviving Corporation employees (the "REPLACEMENT PLANS"), (b) with respect to a Replacement Plan that is a group health plan (i) credit such Retained Employees, for the year during which participation in the Replacement Plan begins, with any deductibles and copayments already incurred during such year under the terminated or discontinued group health plan and (ii) waive any preexisting condition limitations applicable to the Retained Employees (and their eligible dependents) under the Replacement Plan to provide credit for any co-payments the extent that a Retained Employee's (or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing dependent's) condition exclusions and waiting periods that would not have applied to such employees caused a preexisting condition exclusion under the applicable Oryx terminated or discontinued group health plan, and (c)(1) cause each Replacement Plan or Xxxx-XxXxx Plan immediately prior that is an employee pension benefit plan (as such term is defined in Section 3(2) of ERISA) intended to be qualified under Section 401 of the Code to be amended to provide that the Retained Employees shall receive credit for participation and vesting purposes under such plan for their period of employment with the Company and its predecessors to the availability of extent such predecessor employment was recognized by the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation Company and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without cause.
Appears in 1 contract
Samples: Ascent Pediatrics Inc
Employee Benefits Matters. (a) Except as otherwise provided contemplated herein, for the period ending on the last day of the calendar year in this Section 5.5which the Effective Time occurs, the Surviving Company shall, and the Parent shall cause the Surviving Company to, provide employee benefit plans, programs and arrangements (including deductibles, co-pays and other amounts payable by Employees) that, in the aggregate, will provide either (i) each of the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements in effect on the date hereof (or as amended or established in accordance with or as permitted by this Agreement) shall be maintained in effect by the Surviving Corporation from and after the Effective Time with respect to the employees, former employees, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by such Benefit Plans immediately prior to the Effective Time, and the Surviving Corporation shall assume as of the Effective Time each Oryx Plan maintained by Oryx immediately prior to the Effective Time and perform such Benefit Plan in the same manner and to the same extent that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (iiA) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles those Employees currently covered by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate United States domestic employee benefit plans, programs and arrangements, including but not limited tobenefits, executive as applicable, that are no less favorable, in the aggregate, than those provided pursuant to the plans, programs and incentive arrangements of the Parent in effect immediately prior to the Effective Time and (B) with respect to those Employees currently covered by foreign employee benefit plans, programs and arrangements, benefits, as applicable, that are no less favorable, in the aggregate, than those provided in the current foreign benefit plans, programs and arrangements set forth in Section 3.09(a) of the Disclosure Schedule or (ii) Employees with substantially similar benefits to those provided to similarly-situated employees of Parent or its affiliates, and, in each case, Parent shall cause the Surviving Company to recognize all service of the Employees with any of the Company Group, as if such service were with Parent, for vesting and eligibility purposes in any plan, program or arrangement Employee may be eligible to participate in after Closing; provided, however, that nothing herein shall (A) impede or limit the Surviving Company or any of its subsidiaries from terminating any of their employees at any time for any reason or no reason, subject to the provisions of applicable Law and applicable Contracts, (B) prevent the amendment or termination of any such plan, program or arrangement, (C) require that the Surviving Company (1) provide or permit investment in the securities of the Company, (2) grant or award any securities or securities-based compensation or benefit or (3) provide any guaranteed bonus compensation, stock option and supplemental executive retirement planschange of control protections or retention awards, for employees and directors of or (D) interfere with the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed Company’s right or obligation to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right make such changes as are necessary to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, conform with or without causeapplicable Laws.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Soundbite Communications Inc)
Employee Benefits Matters. (a) Except as otherwise provided in this Section 5.5, (i) each If any employees of the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements in effect on the date hereof (or as amended or established in accordance with or as permitted by this Agreement) shall be maintained in effect by the Surviving Corporation from and after the Effective Time with respect to the employees, former employees, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by such Benefit Plans immediately prior to the Effective Time, and the Surviving Corporation shall assume Company as of the Effective Time each Oryx Plan (each, a “Company Employee”) become a participant in a benefit plan sponsored or maintained by Oryx Parent or the Surviving Company (the “Parent Plans”), in accordance with the eligibility criteria of such Parent Plans, subject to the Company providing Parent sufficient information to determine the following (i) such participants shall receive full credit for all service with the Company prior to the Effective Time for purposes of eligibility and vesting (but not benefit accrual) subject to applicable Laws, to the extent such service is taken into account under such Parent Plans and under a comparable Company Plan, (ii) such participants shall participate in the Parent Plans on terms no less favorable than those offered by Parent to their similarly-situated employees, (iii) to the extent permitted by Law, such participants and their covered dependents shall have all pre-existing condition exclusions of such Parent Plans waived to the extent such pre-existing condition exclusions were inapplicable to or had been satisfied by such participants and their covered dependents immediately prior to the Effective Time and perform such Benefit Plan in under the same manner and to the same extent that Oryx would be required to perform thereunder, corresponding Company Plan; and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (iiiv) with respect to any group Parent Plan that provides medical or health Benefit benefits, such Company Employees (and their eligible dependents) shall be given credit for co-payments made, amounts credited towards deductibles, co-insurance and out-of-pocket maximums under the corresponding Company Plan (i.e., under the same type of Plan such as a point of service plan) in the calendar year in which such Company Employee becomes a participant in such Parent Plans; provided that the foregoing (i) through (iv) shall be subject to the Company providing to Parent sufficient information to make such determinations. Parent shall, or shall cause the Surviving Corporation Company to, permit each Company Employee who remains employed with Parent or the Surviving Company to use all unused vacation, sick leave and paid time off accrued by such Company Employee under Company Plans prior to the Effective Time to the extent accrued on the balance sheet contained in the Unaudited Company Financials. Nothing in this Section 8.5 shall (x) require Parent or the Surviving Company to provide any particular employee benefit plans to Company Employees, (y) limit the Surviving Company’s ability to amend or terminate any benefit plan or arrangement or (z) limit the right of Parent, the Surviving Company or any of its their Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict terminate the employment of, or to discharge, of any employee Company Employee at any time, with or without cause.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Brampton Crest International Inc)
Employee Benefits Matters. (a) Except During the period beginning on the Closing Date and ending on the first (1st) anniversary of the Closing Date, Purchaser shall provide each employee of each Group Company who is employed by a Group Company or any of its Affiliates prior to the Closing and who continues to be so employed as otherwise provided in this Section 5.5, of immediately following the Closing (the “Closing Date Employees”) with: (i) each of the Xxxx-XxXxx Plans a base salary or hourly wage rate (as applicable) and Oryx Plans target annual cash bonus and other employment arrangements in effect on the date hereof incentive compensation opportunities (or as amended or established in accordance with or as permitted by this Agreementexcluding equity arrangements) shall be maintained in effect by the Surviving Corporation from and after the Effective Time with respect that are (A) prior to the employeesJanuary 1, former employees2024, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by no less favorable than those provided to such Benefit Plans employee immediately prior to the Effective TimeClosing Date and (B) on or after January 1, and 2024, in the Surviving Corporation shall assume as of the Effective Time each Oryx Plan maintained by Oryx aggregate, no less favorable than those provided to such employee immediately prior to the Effective Time and perform such Benefit Plan in the same manner and to the same extent that Oryx would be required to perform thereunder, Closing Date and (ii) except employee benefits (including severance but excluding equity arrangements) that either are (A) no less favorable, in the aggregate, than the Employee Benefit Plans (excluding equity arrangements) provided to the Closing Date Employees as may be expressly provided in a valid written waiver voluntarily signed by an affected employeeof the Closing Date, or (B) on or after January 1, 2024, the same as the Purchaser provides to its similarly situated employees. Purchaser further agrees that, from and after the Effective Time Closing Date, Purchaser shall and shall cause each Group Company and its Affiliates to grant the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including Closing Date Employees credit for any obligations arising from service with a Group Company earned prior to the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments Closing Date (x) permitted by the applicable Oryx Plan, for eligibility and vesting purposes and (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting vacation accrual and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) severance benefit determinations under any Benefit Plan of benefit or compensation plan, program, agreement or arrangement that may be established or maintained by Purchaser or the Surviving Corporation Group Companies or any of its Subsidiaries or affiliates for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees their Affiliates on or after the Effective Time, Closing Date (the Surviving Corporation will cause “New Plans”) to the same extent such Benefit Plan to provide credit for any co-payments or deductibles by such employees service was relevant for the remainder comparable benefit or compensation plan, program, agreement or arrangement of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx PlanGroup Company. In addition, as the case may be, and Purchaser shall: (A) cause to waive be waived all pre-existing condition exclusions and actively-at-work requirements and similar limitations, eligibility waiting periods that would not have applied and evidence of insurability requirements under such New Plans to such employees the extent waived or satisfied by an employee (or dependent) under the applicable Oryx Plan Employee Benefit Plans as of the Closing Date, provided that the foregoing obligation is qualified in its entirety by the consent of any insurance carrier that insures benefits under any New Plan, which Purchaser shall use reasonable business efforts to obtain, and (B) cause any deductible, coinsurance and covered out-of-pocket expenses paid on or Xxxxbefore the Closing Date by any employee (or covered dependent thereof) to be taken into account for purposes of satisfying the corresponding deductible, coinsurance and maximum out-XxXxx Plan immediately prior of-pocket provisions after the Closing Date under the New Plans in the year of initial participation if such initial participation occurs in the middle of a plan year. Purchaser agrees that Purchaser and the Group Companies shall be solely responsible for satisfying the continuation coverage requirements of Section 4980B of the Code for all individuals who are “M&A qualified beneficiaries” as such term is defined in Treasury Regulation Section 54.4980B-9. Notwithstanding anything in this Agreement to the availability contrary, the terms and conditions of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, employment for any employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 covered by a Labor Agreement shall be deemed to constitute an employment contract between governed by the Surviving Corporation andapplicable Labor Agreement until the expiration, modification or otherwise confer any rights upon, any individual, termination of such Labor Agreement in accordance with its terms or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without cause.Applicable Law. 55
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Employee Benefits Matters. (a) Except as otherwise provided For a period of at least one year after the Effective Time, Parent shall cause the Surviving Corporation to provide compensation and employee benefits under plans, programs and arrangements, other than equity compensation plans, which, in this Section 5.5, (i) each the aggregate will provide compensation and employee benefits to the employees of the Xxxx-XxXxx Plans Company and Oryx Plans and other employment arrangements the Company Subsidiaries which, taken together, are no less favorable to the employees than those provided by the Company or the Company Subsidiaries in effect on the date hereof hereof. For purposes of vesting and eligibility to participate and level of benefits under the compensation and benefit plans covering any individual who is a current employee of the Company or the Company Subsidiaries as of the Effective Time (or as amended or established in accordance with or as permitted by this Agreement“Company Employees”) shall be maintained in effect by the Surviving Corporation from and after the Effective Time (the “New Plans”), each Company Employee shall be credited with respect his or her years of service with the Company or any Company Subsidiary and their respective predecessors before the Effective Time, to the employeessame extent as such Company Employee was entitled, former employeesbefore the Effective Time, directors to credit for such service under any similar Benefit Plan in which such Company Employee participated or former directors of Xxxx-XxXxx and its Subsidiarieswas eligible to participate immediately prior to the Effective Time. In addition, and Oryx without limiting the generality of the foregoing, (A) each Company Employee shall be immediately eligible to participate, without any waiting time, in any and its Subsidiariesall New Plans to the extent coverage under such New Plan is comparable to a Benefit Plan in which such Company Employee participated immediately before the Effective Time (such plans, respectivelycollectively, who are the “Old Plans”), and (B) for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Company Employee, Parent shall cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such employee and his or her covered by dependents, unless such Benefit conditions would not have been waived under the comparable Old Plans in which such employee participated immediately prior to the Effective Time, and Parent shall cause any eligible expenses incurred by such employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employee and his or her covered dependents as if such amounts had been paid in accordance with such New Plan. Parent and the Surviving Corporation shall assume as be solely responsible for satisfying the requirements arising out of the Effective Time each Oryx Plan maintained by Oryx immediately prior to the Effective Time and perform such Benefit Plan in the same manner and to the same extent that Oryx would be required to perform thereunder, and (ii) except as may be expressly provided in a valid written waiver voluntarily signed by an affected employee, from and after the Effective Time the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had prior to the Effective Time, or which the Surviving Corporation has after the Effective Time, to amend, modify, suspend, revoke or terminate any such Benefit Plan. Without limiting the foregoing, (i) each participant in any Xxxx-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) under any Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions 4980B of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, all “M&A qualified beneficiaries” as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained defined in this Treasury Regulation Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without cause54.4980B-9.
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Employee Benefits Matters. (a) Except as otherwise provided in this Section 5.5Immediately following the Closing, (i) each all employees of the Xxxx-XxXxx Plans and Oryx Plans and other employment arrangements in effect on the date hereof (or Company as amended or established in accordance with or as permitted by this Agreement) shall be maintained in effect by the Surviving Corporation from and after the Effective Time with respect to the employees, former employees, directors or former directors of Xxxx-XxXxx and its Subsidiaries, and Oryx and its Subsidiaries, respectively, who are covered by such Benefit Plans immediately prior to the Effective TimeClosing shall continue in employment with the Company (such employees to continue to be employed by the Company following the Closing, the “Affected Employees”) and, for a period of not less than twelve (12) months after the Closing (or until the particular Affected Employee’s employment is terminated, if earlier), Purchaser shall provide, or shall cause the Company to provide, each Affected Employee with compensation and employee benefits (including bonus opportunity, but not including equity compensation that are not materially less favorable, in the Surviving Corporation shall assume as of aggregate, than the Effective Time each Oryx Plan maintained by Oryx compensation and employee benefits (other than equity compensation) provided to such Affected Employee immediately prior to the Closing. Effective Time as of the Closing and perform such Benefit Plan in thereafter, Purchaser shall recognize, and shall cause the same manner and Company to recognize, each Affected Employee’s employment or service with the Company prior to the same Closing for purposes of determining, as applicable, the eligibility for participation and vesting of any Affected Employee under all employee benefit plans maintained by the Company, Purchaser or an Affiliate of Purchaser and extended to Affected Employees, and, solely for purposes of determining the amount of vacation and similar paid time off benefits, the accrual of such benefits, except to the extent that Oryx such service was not recognized for such purposes under the analogous Plan or such recognition would result in a duplication of benefits. Effective as of the Closing and thereafter, Purchaser shall, and shall cause the Company to, use commercially reasonable efforts to (i) cause any pre-existing conditions or limitations, eligibility waiting periods, evidence of insurability requirements or required physical examinations under any health or similar plan of the Company, Purchaser or an Affiliate of Purchaser extended to Affected Employees to be required waived with respect to perform thereunderAffected Employees and their eligible dependents (to the extent such conditions, limitations or requirements had been satisfied or do not apply under the analogous Plan) and (ii) except as may be expressly provided in a valid written waiver voluntarily signed fully credit each Affected Employee with all deductible payments, co-payments and other out-of-pocket expenses paid by an affected employee, from and after such employee under the Effective Time health benefit plans of the Surviving Corporation will honor all Oryx Plans, including all employment, change-in-control, severance, termination, consulting and unfunded retirement or benefit agreements (including any obligations arising from the Merger constituting a "change of control" or "corporate change" thereunder, as applicable), in accordance with the terms thereof, without offset, deduction, counterclaim, interruption or deferment (other than offsets, deductions, counterclaims, interruptions or deferments (x) permitted by the applicable Oryx Plan, (y) to comply with income or payroll tax withholding obligations, or (z) under other applicable law); provided, however, that, except as provided under applicable law, nothing contained in this Section 5.5(a) shall limit the Surviving Corporation from exercising any reserved right contained in any such Xxxx-XxXxx Plan or Oryx Plan or any other right which Xxxx-XxXxx or Oryx had Company prior to the Effective Time, or Closing during the plan year in which the Surviving Corporation has after Closing occurs for the Effective Time, purpose of determining the extent to amend, modify, suspend, revoke or terminate which any such Benefit Plan. Without limiting employee has satisfied his or her deductible and whether he or she has reached the foregoing, (i) each participant in any Xxxxout-XxXxx Plan or Oryx Plan shall receive credit for purposes of eligibility to participate, vesting and eligibility to receive benefits (such as higher rates of matching contributions for service after the Effective Time and eligibility for early retirement) of-pocket maximum under any Benefit Plan health benefit plan of the Surviving Corporation Company, Purchaser or any an Affiliate of its Subsidiaries or affiliates Purchaser extended to Affected Employees for service credited for the corresponding purpose under such Benefit Plan made available to such participant, but not for purposes of benefit accrual under any defined benefit pension plan unless the participant's accrued benefit liability related to such service is transferred to such defined benefit pension plan; provided, however, that such crediting of service shall not operate to cause any such Benefit Plan to fail to comply with the applicable provisions of the Code and ERISA, and (ii) with respect to any group health Benefit Plan of the Surviving Corporation or any of its Subsidiaries or affiliates made available to Oryx employees or Xxxx-XxXxx employees on or after the Effective Time, the Surviving Corporation will cause such Benefit Plan to provide credit for any co-payments or deductibles by such employees for the remainder of the coverage period during which such Benefit Plan replaces an Oryx Plan or Xxxx-XxXxx Plan, as the case may be, and to waive all pre-existing condition exclusions and waiting periods that would not have applied to such employees under the applicable Oryx Plan or Xxxx-XxXxx Plan immediately prior to the availability of the replacement Benefit Plan. Xxxx-XxXxx and Oryx will cooperate on and after the date hereof to develop appropriate employee benefit plans, programs and arrangements, including but not limited to, executive and incentive compensation, stock option and supplemental executive retirement plans, for employees and directors of the Surviving Corporation and its Subsidiaries from and after the Effective Time. However, no provision contained in this Section 5.5 shall be deemed to constitute an employment contract between the Surviving Corporation and, or otherwise confer any rights upon, any individual, or constitute a waiver of the Surviving Corporation's right to amend, modify, limit or restrict the employment of, or to discharge, any employee at any time, with or without causeyear.
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