Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Date.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Walgreens Boots Alliance, Inc.), Asset Purchase Agreement (Rite Aid Corp), Asset Purchase Agreement (Walgreens Boots Alliance, Inc.)
Employee Matters. (a) Purchaser Sub shall Buyer will make an offer of employment at least two (2) weeks prior to the Closing Date (or communicate the applicable Subsequent Closing Date or Distribution Center Closing Date) (it being acknowledged and agreed that to each Business Employee its transfer the extent Buyer makes written offers of employment to Purchaser Subany District Manager, in either casePharmacy District Manager, in a manner reasonably determined by Purchaser SubHuman Resources District Manager, and the Company Asset Protection District Manager, Regional Vice President, Regional Pharmacy Vice President, Senior Human Resources Manager, or Regional Asset Protection Director or corporate Business Employees, Seller shall, upon request, use commercially reasonable efforts to assist Purchaser Sub Buyer in preparing preparing, printing and delivering the applicable written offer or communicationletters). Such offer of employment or communication of transfer of employment shall will be provided to each Business Employee (as individual listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to , who is employed by Seller or an Affiliate of Seller on the Closing Date, Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of ) for employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin beginning on the first Business Day following such date (the “Census Employment Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable the same position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement)Employee, and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoingworked, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days immediately prior to the date of this AgreementEmployment Start Date. The Employee Census shall first be delivered to Purchaser Sub Buyer prior to the date of this Agreement and shall state each Business Employee’s name, title, employment classification, salary or pay rate and status with respect to whether he or she is currently on the applicable long-term disability or otherwise on a leave of absence. The Employee Data Trigger Date and Census shall be updated by the Company Seller no earlier sooner than three (3) weeks prior to the Census Start Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date) for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall Buyer will make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Closing Date (or the applicable Subsequent Closing Date or Distribution Center Closing Date). Each non-Union Business Employee listed on the Employee Census will receive an offer which will provide for compensation (including salary, wages, incentive compensation and bonus opportunities) that is no less favorable than that provided immediately prior to the Employment Start Date and employee benefits (including retirement, welfare and fringe benefits) that are equivalent to those provided to such non-Union Business Employee immediately prior to the Employment Start Date (subject to any eligibility requirements but taking into account prior service with Seller or Seller’s Affiliates). Each Union Business Employee listed on the Employee Census will receive an offer which will provide for compensation and employee benefits in accordance with the terms of the applicable CBA (taking into account prior service with Seller or Seller’s Affiliates). Each Business Employee that accepts an offer of employment from Buyer will be referred to as a “Transferred Employee”. Each offer of employment by Buyer to a Business Employee shall be on an employment “at-will” basis except as required by any CBA. Except as otherwise required by the terms of a CBA with respect to Union Business Employees and subject to Section 6.01(k) hereof, for a period of at least one (1) year following the Employment Start Date, Buyer shall provide each Transferred Employee compensation (including salary, wages, incentive compensation and bonus opportunities) that is no less favorable than that provided immediately prior to the Employment Start Date and employee benefits (including retirement, welfare and fringe benefits) that are equivalent to those provided to such Transferred Employee immediately prior to the Employment Start Date (subject to any eligibility requirements but taking into account prior service with Seller or Seller’s Affiliates). Transferred Employees will cease to be employees of the Seller or Seller’s Affiliates, as applicable, and become employees of Buyer or its Affiliates on the Employment Start Date and shall cease any further participation in (and shall cease to accrue benefits under) all Employee Plans as of the Employment Start Date. Seller (or its Affiliates) will pay to all Transferred Employees (A) any unpaid personal holidays or other vacation leave accrued by such Transferred Employees as of the date immediately preceding the Employment Start Date and (B) any accrued but unpaid bonus for any bonus periods that have commenced but not yet concluded before the Employment Start Date with respect to the portion of the applicable bonus period occurring before the Employment Start Date, in each case, in accordance with Seller’s (or its Affiliate’s) programs and policies. Buyer agrees that it will (or will cause its Affiliates to) take any and all commercially reasonable actions necessary to allow any Business Employees on a work visa to become employed with Buyer or its Affiliates. For those Business Employees who become Transferred Employees and who are employed on a work visa, Buyer will serve as the successor-in-interest and thus accept all applicable rights and obligations related to the work visa and any corresponding permanent residence petition.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Rite Aid Corp), Asset Purchase Agreement (Freds Inc), Asset Purchase Agreement (Walgreens Boots Alliance, Inc.)
Employee Matters. (a) Purchaser Sub On the tenth business day preceding the anticipated Closing Date, the Company shall make provide to Buyer a revised version of Section 4.14(a) of the Disclosure Schedule, updated to reflect all changes in such section that have occurred prior to such day. No later than the fifth business day preceding the anticipated Closing Date but effective as of the Closing Date and contingent on the Closing, Buyer shall offer employment to all of the Employees listed on the revised Section 4.14(a) of the Disclosure Schedule. The Company shall use its commercially reasonable efforts to (i) provide Buyer with access to such Employees and (ii) assist Buyer in extending offers of employment to such Employees. Buyer shall offer such employment on an “at will” basis and at a wage and salary level (excluding performance-based or incentive compensation, bonuses and equity-based compensation, as applicable) that is the same as that provided to the applicable Employee on the day preceding the Closing Date. Each such offer that is made to an Employee who is actively employed in the Network Business on the day immediately preceding the Closing Date shall be an offer to commence employment on the Closing Date. Each such offer that is made to an Employee who is not actively at work with the Company or any of its Subsidiaries due to a short- or long-term disability leave or other leave of absence (but not including vacation), will be deemed to be an offer of employment or communicate with Buyer effective as of the date such Employee is willing and able to each Business Employee its transfer of employment return to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census active work status (the “Employee CensusStart Date”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, . The Company shall promptly notify Buyer if any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is Employees employed by the Company or an Affiliate any of its Subsidiaries either (i) commences a short- or long-term disability leave or other leave of absence (but not including vacation) during the Company period of time commencing with the Agreement Date and ending on the Closing Date, Subsequent or (ii) returns to active employment from any such leave from the Agreement Date to the Closing Date. Each Employee to whom an offer of employment is made pursuant to this Section 8.2(a) and who accepts such offer and commences such employment with Buyer as of the Closing Date or Distribution Center Closing Start Date, as applicable, shall be referred to as a “Retained Employee” and employment for such Business Employee shall begin on the first Business Day following such date (collectively as the “Census Start DateRetained Employees.”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Date.
Appears in 3 contracts
Samples: Equity Purchase Agreement (Macrovision Solutions CORP), Equity Purchase Agreement (Lions Gate Entertainment Corp /Cn/), Equity Purchase Agreement (Macrovision Solutions CORP)
Employee Matters. (a) Purchaser Sub As soon as practicable following the date hereof, but in any event, not less than fourteen (14) calendar days prior to the Closing Date, Buyer shall, or shall cause an Affiliate of Buyer to, make an offer of employment or communicate commencing as of the Closing Date to each Current Business Employee its listed on Section 5.7(a) of the Seller Disclosure Schedules, in a substantially comparable job or position and in the same location as in effect immediately prior to the Closing Date, and other than Current Business Employees who are covered by a Collective Bargaining Agreement, (i) at a salary or wage level and bonus opportunity at least equal to the salary or wage level and bonus opportunity to which such Current Business Employees were entitled immediately prior to the Closing Date and (ii) subject to Section 5.7(f), with benefits, perquisites and other terms and conditions of employment that are substantially similar in the aggregate to the benefits, perquisites and other terms and conditions that such Current Business Employees were entitled to receive immediately prior to the Closing Date (including, to the extent set forth on Section 3.15(a) of the Seller Disclosure Schedules, any benefits pursuant to qualified and non-qualified retirement and savings plans, medical, dental and pharmaceutical plans and programs, deferred compensation arrangements and equity-based and incentive compensation plans). Sellers shall reasonably cooperate with Buyer with respect to the transfer of Current Business Employees who are listed on Section 5.7(a) of the Seller Disclosure Schedules. Sellers shall cause the employment of each Current Business Employee listed on Section 5.7(a) of the Seller Disclosure Schedules who does not accept such offer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer be terminated effective as of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least not more than five (5) Business Days prior to following the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer . Those Current Business Employees listed on Section 5.7(a) of the Seller Disclosure Schedules who accept such offers of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company Buyer and commence active employment with Buyer or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, Buyer effective as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing DateDate (or, Subsequent Closing Date or Distribution Center Closing Date, as if applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer upon expiration of leave or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee inactive status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such referred to herein as “Transferred Business Employee (subject to the requirements of any applicable collective bargaining agreement)Employees” and shall not be treated as Transferred Business Employees unless, and at the same location(s) at which such Business Employee worked while employed with the Company shall remain employees of a Seller or an Affiliate of Seller until, they commence active employment with Buyer or an Affiliate of Buyer. Buyer acknowledges that the CompanyCurrent Business Employees (other than the Current Business Employees located in Canada (all of whom are employed by HD Supply Canada, Inc.)) are currently employed by HD Supply Management, Inc., an Affiliate of the Purchased Companies. Notwithstanding Seller acknowledges that the foregoingemployment offers to Current Business Employees shall be subject to Buyer’s standard employee onboarding procedures, Parent including satisfactory provision by such Current Business Employees of work authorization and Purchaser Sub shall indemnify the execution of Buyer’s standard employee Restrictive Covenants. For greater certainty, and hold notwithstanding anything in this Agreement to the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided thatcontrary, for the avoidance of doubt, Parent and Purchaser Sub Buyer shall not indemnify make any offers of employment under this Section 5.7(a) to the Current Business Employees located in Canada employed by Pro Canadian or one of its Subsidiaries, but shall not be alleviated from any of Buyer’s other obligations in this Section 5.7, including providing Current Business Employees located in Canada employed by Pro Canadian or one of its Subsidiaries with a salary, wage level and hold the Company harmless bonus opportunity consistent with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary clause (which shall comply with Section 6.14(ai) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start DateSection 5.7(a).
Appears in 2 contracts
Samples: Purchase Agreement (Hd Supply, Inc.), Purchase Agreement (Anixter International Inc)
Employee Matters. (a) Purchaser Sub shall make Buyer will provide offers to employ as of the Closing Date each individual who is an offer employee (including, without limitation, employees who are on approved family or medical leave, short-term disability or other approved leaves of employment absence) of Seller with respect to the Hospital Businesses immediately prior to Closing in his or communicate to each Business Employee its transfer of employment to Purchaser Subher current position (i.e. job duties, title, responsibilities and location), at his or her current salary or wages and at benefit levels such that his or her salary or wages and benefits are substantially the same, in either casethe aggregate, as are the salary or wages and benefits applicable to such employee immediately prior to Closing. Seller acknowledges that all employment offers will be made subject to the satisfactory completion by Buyer of its customary employee background checks and pre-employment screenings. Buyer will keep positions available for employees of Seller who are on approved family or medical leave, short-term disability or other approved leaves of absence on the Closing Date. Employees employed under written Contracts will not be offered employment pursuant to this Section, but shall be employed pursuant to the terms of the Assumed Contracts, if any, relating to such employees. Any workforce reduction after the Closing shall be conducted by Buyer in a manner reasonably determined by Purchaser Subcompliance with all applicable Legal Requirements. Buyer will continue to maintain all Seller Employee Benefit Plans (except plans to which Code Section 403(b) applies) after the Closing until at least June 30, 2011 and, after such date, such Seller Employee Benefit Plans may be amended, modified, replaced or terminated in accordance with the provisions of such Seller Employee Benefit Plans, as amended, and the applicable Legal Requirements; provided, however, Buyer (i) will continue to maintain retiree life insurance benefits under Prudential Insurance Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication America Sinai Hospital of transfer of employment shall be provided to each Business Employee Detroit Insurance Continuance Fund Contract # 0041391 (as “Sinai Plan”) for retirees listed on an employee census Schedule 6.3(a) until all benefits have been paid in accordance with the terms of the Sinai Plan, (ii) agrees, for the “Employee Census”)period beginning on the Closing and ending June 30, 2011, to provide a rate of employer contributions under its 401(k) at least five (5plan for Hired Employees which is equal to the rate of employer contributions in effect under the Seller’s DMC 403(b) Business Days Matching Plan immediately prior to the Closing Dateand, Subsequent Closing Date or Distribution Center Closing Datein Buyer’s discretion, as applicable; providedthis rate of employer contributions may continue after such date, that in each case, any offer or transfer and (iii) agrees to provide Hired Employees who would have been credited with three years of vesting service under DMC’s 403(b) Matching Plan had they continued employment with respect to Seller continuously through June 30, 2011, a Business Employee is subject vesting schedule for matching contributions in Buyer’s 401(k) plan equal to the condition that such Business Employee is employed by vesting schedule for matching contributions under Seller’s DMC 403(b) Matching Plan immediately prior to the Company or an Affiliate of Closing. Further, Buyer will allow the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, Hired Employees to participate in Buyer’s 401(k) plan effective as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing DateDate and will accept rollovers (including rollovers of any outstanding loans made as part of a direct rollover) by Hired Employees into Buyer’s 401(k) plan from Seller’s DMC 403(b) Matching Plan, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire extent any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with rollover qualifies as an eligible rollover distribution as defined in Section 6.14(a402(c)(4) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start DateCode.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Vanguard Health Systems Inc)
Employee Matters. (a) Effective as of the Closing, the Purchaser Sub shall, or shall cause its affiliates to, make offers of employment (which offers shall be in compliance with the Purchaser’s covenants set forth in this Section 5.08) to, or continue the employment of, as applicable, each Business Employee who is actively employed by Seller or its affiliates as of the Closing Date (each, an “Active Employee”). The Seller shall not knowingly take any action to discourage any Business Employee from accepting such offer of employment. For purposes of this Agreement, any Business Employee who is not actively at work on the Closing Date due to an approved leave of absence (including due to vacation, holiday, sick leave, workers compensation, maternity or paternity leave, military leave, jury duty, bereavement leave or injury, but not including due to unauthorized leave of absence or lay-off), other than short-term or long-term disability leave, in compliance with the applicable policies of the Seller and its affiliates, shall be considered an Active Employee. The Purchaser will comply, and will cause its affiliates to comply, with the requirements of all applicable CBAs relating to the rights of any laid-off employee of the Business who is not actively at work on the Closing Date due to a lay-off to be recalled to active employment with the Purchaser or its affiliates following the Closing Date. With respect to each Business Employee who is not actively at work as of the Closing Date due to short-term or long-term disability leave (each, a “Disabled Employee”), effective as of the date on which such Disabled Employee presents himself or herself to the Purchaser for active employment following the Closing Date, provided such Disabled Employee is cleared for work and presents himself or herself to the Purchaser for active employment within 180 days following the Closing Date, (i) in the case of any such Disabled Employee who was employed by a Transferred Entity immediately prior to the date such employee’s disability leave began, the Purchaser shall continue the employment of such Disabled Employee and (ii) in the case of any such Disabled Employee who was employed by the Seller or one of its affiliates (other than a Transferred Entity) immediately prior to the date such employee’s disability leave began, the Purchaser shall, or shall cause its affiliates to, make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable (which offer or communication. Such offer of employment or communication of transfer of employment shall be provided in compliance with the Purchaser’s covenants set forth in this Section 5.08) to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Datesuch Disabled Employee, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer with job responsibilities that are substantially similar to such Disabled Employee’s job responsibilities with the Seller or transfer of employment with respect to a Business Employee is subject its affiliates immediately prior to the condition that date such Business Employee is employed by employee commenced disability leave, to the Company or an Affiliate of the Company on the Closing Datesame extent, Subsequent Closing Date or Distribution Center Closing Dateif any, as applicablethe Seller or its affiliates would have been required to re-employ such Disabled Employee if the transactions contemplated by this Agreement had not occurred, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, Law and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement). Business Employees who transfer to the Purchaser or one of its affiliates, as of the effective date of such transfer, shall be referred to as “Transferred Employees”, and at the same location(s) at which date that such Business Employee worked while transfers to the Purchaser or one of its affiliates shall be referred to as the “Transfer Date”. In the case of (i) any Active Employee or (ii) any Disabled Employee who was employed with by a Transferred Entity immediately prior to the Company date such employee’s disability leave began, the Transfer Date shall be the Closing Date; provided, however, that, except as relates to any Assumed Benefit Plan, the Purchaser and its affiliates shall have no liabilities or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless obligations with respect to any Losses related such Disabled Employee unless and until such employee presents himself or herself to any claim the Purchaser or threatened claim by or on behalf its affiliates for active employment in accordance with this Section 5.08(a). In the case of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Disabled Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained who was employed by the Company Seller or one of its Affiliates, affiliates (other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(aTransferred Entity) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days immediately prior to the date such employee’s disability leave began, the Transfer Date shall be the date such employee commences active employment with the Purchaser or its affiliates. The Seller and the Purchaser intend that the transactions contemplated by this Agreement shall not constitute a severance of employment of any Transferred Employee prior to or upon the consummation of the transactions contemplated by this Agreement. The Employee Census shall first be delivered to Purchaser Sub on , and that Transferred Employees will have continuous and uninterrupted employment immediately before and immediately after the applicable Employee Data Trigger Date and shall be updated consummation of the transactions contemplated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Datethis Agreement.
Appears in 2 contracts
Samples: Purchase Agreement (Global Brass & Copper Holdings, Inc.), Purchase Agreement (Olin Corp)
Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser SubBetween the date hereof and Closing, Sellers shall, in either caseconsultation with Buyer, implement a reduction in a manner reasonably determined by Purchaser Sub, force and consolidation consistent with the Company shall, upon request, use commercially reasonable efforts long range plan that Sellers have delivered to assist Purchaser Sub Buyers as set forth in preparing and delivering Section 7.05 of the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee Disclosure Schedules the (as listed on an employee census (the “Employee CensusLong Range Plan”)) at . Employees who are terminated in connection with such reductions in force being “Terminated Employees”. At least five ten (510) Business Days prior to the Closing, Buyer shall, or shall cause a Buyer Designee to, make an offer of employment, to commence as of the Closing, to each Employees who is employed immediately prior to the Closing Dateand who will not be a Terminated Employee prior to the Closing or a Transition Employee (each such Employee, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any an “Offered Employee”). Each Offered Employee who receives and accepts such an offer or transfer of employment with respect Buyer or a Buyer Designee is referred to herein as a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable“Transferred Employee”, and employment for such Business Buyer shall, or shall cause the applicable Buyer Designee to, employ each Transferred Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with such accepted offer as of the applicable leave policy within Closing. Buyer hereby agrees that the offers to the Offered Employees shall include, and for the period immediately following the Closing through and including the twelve (12) months month anniversary of the Closing DateClosing, Subsequent Closing Date Buyer shall, or Distribution Center Closing Dateshall cause the applicable Buyer Designee to, provide (i) a level of base salary and wages to each Transferred Employee that is no less favorable to the base salary and wages provided to such Offered Employee as applicableof the date hereof, and if such Inactive (ii) benefit plans for the benefit or welfare of each Transferred Employee does not so return within twelve (12) monthseach, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further“Buyer Benefit Plan”), that are comparable in the Employee Census shall state each Business Employee’s name, title, current service credit with aggregate to the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status benefits (except with respect to whether he or she is currently an Inactive equity-based compensation and retention benefits) provided to such Offered Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate as of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Datehereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Global Eagle Entertainment Inc.), Asset Purchase Agreement
Employee Matters. (a) Purchaser Sub Unless Seller or Seller Parent otherwise consent in writing, Buyer shall, or shall make cause an Affiliate to, offer employment, effective as of the applicable Hire Date to those Business Employees (i) who are specifically identified on Schedule 5.1 or (ii) with the job categories or titles set forth on Schedule 5.1, which identifies the intended Hire Date for such Business Employees who are employed by Seller or Seller Parent as of the Closing and whom Buyer reasonably determines, in its sole discretion, meet the standards of employment or communicate applicable to each Business Buyer’s employees generally (each, a “Scheduled Employee”) which schedule may be amended upon mutual agreement of the Parties. Any Scheduled Employee its transfer who accepts and commences active employment with Buyer effective as of the applicable Hire Date shall be referred to herein as a “Hired Employee”, with such employment to Purchaser Sub, in either case, in a manner reasonably determined be conditioned upon the consummation of the transactions contemplated by Purchaser Sub, this Agreement and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicableAncillary Agreements; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, furtherhowever, that with respect to any Inactive EmployeeScheduled Employee who is not actively employed at the time such offers are made because such employee is on a leave of absence (other than regularly scheduled vacation) (the “Leave of Absence Employees”), any offer of employment or communication of transfer of employment Buyer shall be made under no obligation to make an offer to any such Leave of Absence Employees unless and until such Leave of Absence Employee returns to active employment on or within three (3) months following the applicable Hire Date; and provided, further, that, notwithstanding anything in this Agreement to the contrary, Buyer shall have no Liability with a commencement date respect to any Leave of the date that Absence Employee unless such employee actively returns to work in accordance with the applicable leave policy active employment on or within twelve three (123) months of the Closing Date, Subsequent Closing applicable Hire Date or Distribution Center Closing Date, as applicable, and if accepts Buyer’s offer of employment within such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer periodtime; and provided, further, that the Employee Census Buyer shall state each Business Employee’s namenot use any such leave of absence as cause to modify, titlealter, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each change any proposed offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements detriment of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate Leave of the CompanyAbsence Employee. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its AffiliatesAll Scheduled Employees, other than Excluded Employee Severance. The Company Leave of Absence Employees, shall deliver be employed on a census summary (which shall comply with Section 6.14(a) substantially uninterrupted basis by Xxxxx as of the Company Disclosure Schedules) (the “Census Summary”) Hire Date set forth on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start DateSchedule 5.1.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Opko Health, Inc.), Asset Purchase Agreement (Opko Health, Inc.)
Employee Matters. (a) Purchaser Sub From and after the Execution Date, Buyer and/or its affiliate or designee shall be permitted to meet with and interview each Available Employee in connection with prospective employment with Buyer and/or its affiliate or designee and offer employment to any such Available Employee on terms determined by Buyer and/or its affiliate or designee in its sole discretion. Buyer is responsible for scheduling any meetings or interviews and Seller shall reasonably assist Buyer with respect to such scheduling. Any meetings or interviews between Buyer or its affiliate or designee and Available Employees shall be scheduled at times and places that are not unreasonably inconvenient or disruptive to Seller or its affiliates and during normal business hours, with reasonable advance notice being provided to Seller or its affiliates. It is understood that Buyer and its affiliates and designee shall have no obligation to interview or make an offer of employment or communicate to each Business Employee its transfer any of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communicationAvailable Employees. Such Any offer of employment extended by Buyer or communication of transfer of employment shall be provided its affiliate or designee to each Business an Available Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than least ten (10) days prior to the date Closing, in writing (or an electronic document) with an identification of this Agreementsuch Available Employee’s salary or hourly rate, bonus opportunity, incentive compensation and benefits in which such Available Employee will be eligible to participate, if any. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than Within three (3) weeks prior days after the date Buyer or its affiliate or designee makes any such offer of employment, Buyer shall send to the Census Start Date for any Business Seller a schedule identifying each Available Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make who received an offer of employment from Buyer or communicate a transfer its affiliate or designee, and whether such offer of employment was for compensation greater than, less than or equal to the compensation currently being paid to such Available Employee. All offers of employment contemplated by this Section 5.9(a) shall expire at least five (5) days prior to the Closing, and after the Closing shall be void. Buyer shall promptly, but in any event at least four (4) days prior to the Closing, notify Seller of whether such offers of employment have been accepted or rejected by the applicable Available Employees (and, if the agreed upon compensation differs from the initial offer of employment, Buyer shall notify Seller of the revised compensation arrangement (i.e., as soon greater than, less than, or equal to current compensation)). Buyer hereby agrees that it will comply with all applicable Laws in making any employment decisions and taking any actions pursuant to this Section 5.9(a). Buyer also agrees that it will provide copies of any offer letters and/or acceptance letters to Seller at its reasonable request. All Available Employees who accept an offer of employment from, and commence employment with, Buyer or its affiliate or designee shall be referred to herein as practicable thereafter but no later than the Census Start Date“Transferred Employees.”
Appears in 1 contract
Samples: Purchase and Sale Agreement (WildHorse Resource Development Corp)
Employee Matters. (a) Purchaser Sub shall make an offer of employment On or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Purchaser shall offer employment to substantially all of the employees of Seller designated on Schedule 4.2 ("Employees") on the Effective Date, as applicable; providedat salary, that hourly rates and rates of commission, bonuses and other forms of benefits and incentive compensation generally comparable to those provided to Purchaser's current employees in each casesimilar positions and, any offer or transfer of employment with respect to a Business Employee is subject to the condition extent practicable, for the similar job position as currently provided by Purchaser to its current employees; provided however that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with contingent upon the Closing actually occurring. All decisions regarding the hiring or employment by Purchaser of any person shall be Purchaser's sole decision. Seller shall not provide input, advice or counsel on any such decision. Purchaser acknowledges that it is not relying on any information of Seller in making employment decisions. As at the Effective Date, all employees of Seller will be terminated by Seller. Schedule 4.2 contains a commencement date description of the date that such employee actively returns amount of each Employee's compensation and title. Prior to work in accordance with the applicable leave policy within twelve (12) months Closing, Seller will not terminate except for cause the employment of or transfer any Employee to another business of Seller, and Seller will not take any action to hinder Purchaser's efforts to hire or retain any Employee. Effective as of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, all such designated Employees who accept Purchaser's offer of employment and if are actively at work will become employees of Purchaser ("Transferred Employees"). Any employee who receives an offer of employment in accordance with the provisions of this Section 4.2 which such Inactive Employee does not so return within twelve (12) monthsaffirmatively accept and, then who does not report to work on the offer or communication of transfer workday immediately following the Closing Date shall expire or become invalid, as applicable, unless required by Law be deemed to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each have rejected Purchaser's offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Companyemployment. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee who provides notification to his or any claim her supervisor of a reasonably acceptable reason for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary such absence (which shall comply with Section 6.14(amay include without limitation, previously scheduled and approved vacation, jury duty, funeral or bereavement leave or illness) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than within ten (10) business days prior to after the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Closing Date and who is available to report to work upon the earlier of the conclusion of the pre-approved leave or ten (10) business days after the Closing Date, shall be updated by the Company no earlier than three (3) weeks prior permitted to the Census Start Date for any Business Employee and with accept Purchaser's offer of employment. With respect to any Business Employee added to the Employee Census pursuant to such an updateeach Transferred Employee, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Date.Purchaser
Appears in 1 contract
Employee Matters. (a) Prior to Closing, Purchaser Sub shall make an offer of employment or communicate offers to each Business Employee its transfer with such offers of employment to Purchaser Subbe effective as of 12:01 A.M. Eastern time on the Closing Date, unless such Business Employee is on a leave of absence on the Closing Date, in either casewhich case Seller shall, in a manner reasonably determined by Purchaser Subor shall cause its Affiliates to, retain the employment of such Business Employees until, and such employment offer will be effective as of when, the Company shallBusiness Employee is available to return to active employment if such availability to return occurs within six (6) months following the Closing Date (or any later date to the extent such Business Employee has instatement, upon requestreinstatement, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the re-hire or similar rights under applicable offer or communicationLaw on such later date). Such offer shall provide for substantially the same (i) salary, (ii) wages and (iii) target annual bonus of employment or communication of transfer of employment shall be provided to each as enjoyed by such Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days immediately prior to the Closing Date. By extending an offer, Subsequent Purchaser agrees to hire any Business Employee who chooses to accept such offer, and each Business Employee who accepts such offer of employment from and commences employment with Purchaser or its Affiliate is referred to herein as a “Transferred Employee”. Except as otherwise specifically provided in this Section 8.05 or as required by applicable Law, effective as of the Closing Date (or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to Business Employees who are on a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate leave of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, absence as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Datethe date on which such individual becomes a Transferred Employee), as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication employment of transfer the Transferred Employees with Seller shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (terminate and the reason such Business Employee is Transferred Employees shall cease all active participation in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer accrual of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of benefits under any applicable collective bargaining agreement), and at the same location(s) at which such Business Seller Employee worked while employed with the Company or an Affiliate of the CompanyPlan. Notwithstanding the foregoing, Parent the terms and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf conditions of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary unionized Transferred Employees shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on set forth in the applicable Employee Data Trigger Date collective bargaining agreement or as otherwise agreed by Purchaser and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to labor union representing such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start DateTransferred Employees.
Appears in 1 contract
Employee Matters. (a) Prior to Closing, Purchaser Sub shall make an offer employment, to be effective as of the Employment Inception Date, by it or one of its Affiliates to all of the current active Business Employees as of the Closing (those accepting such offers of employment by Purchaser or communicate one of its Affiliates prior to each Closing and whose employment is not terminated for any reason prior to the Employment Termination Date, the “Pre-Closing Hired Employees”). Purchaser shall also, effective as of the Employment Inception Date, offer employment by it or one of its Affiliates to any active individual who becomes a Business Employee following Closing but prior to the Employment Termination Date in accordance with the terms of the Transition Services Agreement (those accepting such offers of employment by Purchaser or one of its transfer Affiliates prior to the Employment Termination Date and whose employment is not terminated for any reason prior to the Employment Termination Date, the “Post-Closing Hired Employees,” and together with the Pre-Closing Hired Employees, the “Hired Employees”). Such offers of employment shall provide for (1) substantially similar annual base salary or wage rate to that provided to such Business Employee as of the Employment Termination Date and (2) continuation of such Business Employee’s current annual bonus opportunity for the remainder of Malibu’s 2019 fiscal year. In connection with such offers, Sellers shall provide an updated list of all Business Employees at least 10 Business Days prior to Closing and at least 10 Business Days prior to the Employment Termination Date. Such offers of employment to the Hired Employees will provide that such employment relationships shall be terminable “at-will” by Purchaser Subor its Affiliates or by the applicable Hired Employee. Sellers shall terminate the employment of all Hired Employees as of the Employment Termination Date in accordance with all applicable Laws and, in either caseprior to the Employment Termination Date, shall provide any required notices in a timely manner reasonably determined by Purchaser Sub, in connection therewith. Each Seller shall cooperate with and the Company shall, upon request, use its commercially reasonable efforts to assist Purchaser Sub and its Affiliates in preparing its and delivering the applicable offer their efforts to secure employment arrangements with those Business Employees to whom Purchaser and its Affiliates make offers of employment. Sellers shall not enforce against any Hired Employee any confidentiality, non-compete, non-solicit or communication. Such offer of employment similar contractual obligations, or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that otherwise assert with respect to any Inactive Employee, such Hired Employee or Purchaser or any offer of employment its Affiliates claims that would otherwise prohibit or communication of transfer of employment shall be made with a commencement date of the date that place conditions on any such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Hired Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer acceptance of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment by Purchaser or communicate a transfer any of its Affiliates, any such Hired Employee’s employment by Purchaser or any of its Affiliates, or any actions taken by any such Hired Employee as an employee of Purchaser or any of its Affiliates. Sellers shall provide Purchaser with such employment information as to the Business Employees as Purchaser may reasonably request. Sellers shall not, engage in any activity intended to discourage any Business Employee from accepting an offer of employment as soon as practicable thereafter but no later than the Census Start Datefrom Purchaser or any of its Affiliates.
Appears in 1 contract
Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to On the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that Madden shall offer employment to those individuals listed under the heading “Hired Employees” in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate Section 8.2 of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date Disclosure Schedule (the “Census Start DateHired Employees”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of which employment shall be made on such terms and with such compensation and benefits as are comparable to similarly situated employees of Madden; provided that, to the extent that each such Hired Employee accepts employment with Madden, such Hired Employee shall initially receive compensation in an amount no less than the amount set forth opposite such Hired Employee’s name on Section 8.2 of the Disclosure Schedule, Madden shall pay to each such Hired Employee a commencement lump sum equal to the amount set forth opposite such Hired Employee’s name on Section 8.2 of the Disclosure Schedule in respect of such Hired Employee’s relocation to the New York metropolitan area (the “Relocation Payment”), which Relocation Payment shall be deemed compensation to each such Hired Employee, and each such Hired Employee shall receive benefits based on the date such Hired Employee started employment at the Company as set forth opposite such Hired Employee’s name on Schedule 8.2 of the Disclosure Schedule. Except as set forth in Section 8.2 of the Disclosure Schedule, Madden agrees to pay severance to each individual listed under the heading “Terminated Employees” in Section 8.2 of the Disclosure Schedule in an amount equal to one month of such Terminated Employee’s annual salary as of the date that hereof as set forth opposite such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months Terminated Employee’s name on Section 8.2 of the Closing DateDisclosure Schedule, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if provided that each such Inactive Terminated Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for required to sign a substantially comparable position held by such Business Employee (subject release before they will be eligible to the requirements of receive any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Companyseverance payment. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold without limiting the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf provisions of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided thatSection 13.7 hereof, for the avoidance of doubt, Parent and Purchaser Sub this Section 8.2 shall not indemnify and hold the Company harmless with respect to confer any Losses related to a claim for compensation rights or benefits arising under remedies upon any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, Person other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreementparties hereto and their respective heirs, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date personal representatives, legatees, successors and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Datepermitted assigns.
Appears in 1 contract
Employee Matters. (a) Purchaser Sub shall Buyer will make an offer offers of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Primary Closing Date (to be effective as of the Primary Closing Date) to the Business Employees listed on Schedule 6.4(a), Subsequent giving effect to any additions or subtractions from such list as a result of personnel changes occurring in the ordinary course of business (it being understood that, redeployment of Business Employees to other businesses of Seller or its affiliates outside SBG shall not be deemed to be in the ordinary course of business). Buyer shall offer employment to all of the Business Employees as of the Primary Closing Date or Distribution Center Closing Date, on an “at will” basis with the same base salary and annual cash bonus opportunity as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment effect for such Business Employee shall begin on immediately prior to the first Business Day following such date (the “Census Start Primary Closing Date”), and otherwise, subject to Buyer’s terms, conditions and policies of employment applicable to similarly situated employees of Buyer; provided, furtherhowever, that with respect any such Business Employee who is absent from work immediately prior to any Inactive Employeethe Primary Closing Date due to injury, any offer disability or approved leave of employment or communication of transfer of employment absence, shall be made with a commencement date of the date that offered employment hereunder effective upon such employee actively Business Employee’s return to active employment, if such Business Employee returns to active employment no later than (i) if on a short-term disability approved leave of absence under the Family and Medical Leave Act of 1993, as amended (“FMLA”) or under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), the last day on which such Business Employee may return to work in accordance with under the provisions of Seller’s applicable leave policy short-term disability plan, FMLA or USERRA, or (ii) for all other approved leaves of absence including workers’ compensation leave, within twelve six (126) months of the Primary Closing Date. Buyer will communicate offers of employment in accordance with applicable legal requirements and in a form determined by Buyer, Subsequent Closing Date which form is reasonably acceptable to Seller. Each Business Employee who accepts Buyer’s offer of employment and commences employment with Buyer shall be referred to as a “Buyer Employee” for purposes of this Agreement at the time the Business Employee first commences active employment with Buyer. If a Business Employee rejects an offer of employment, Seller or Distribution Center Closing Date, as applicable, and if such Inactive Employee does any affiliate may not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law continued employment to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee statusuntil six (6) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to months following the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Primary Closing Date.
Appears in 1 contract
Employee Matters. (a) Schedule 7.4(a) sets forth the names (where permitted under applicable privacy Laws) or other employee identifier of all individuals who are (i) employees or workers of the Sellers, their Subsidiaries or a professional employer organization as of the date hereof and (x) whose job responsibilities relate to the ownership, operation or use of the Transferred Assets or the Business or (y) whom Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Suband the Sellers have otherwise designated as Scheduled Employees (the employees set forth on Schedule 7.4(a), as such Schedule may be updated in either caseaccordance with this Section 7.4(a), in a manner reasonably determined by Purchaser Subthe “Scheduled Employees”), and (ii) independent contractors, consultants, or other service providers of the Company shallSellers or their Subsidiaries as of the date hereof and (x) whose scope of work relates to the ownership, upon requestoperation or use of the Transferred Assets or the Business or (y) whom Purchaser and the Sellers have otherwise designated as Scheduled Contractors (the independent contractors, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering consultants, or other service providers set forth on Schedule 7.4(a), the applicable offer “Scheduled Contractors”). Schedule 7.4(a) also sets forth, for each Scheduled Employee or communication. Such offer Scheduled Contractor as applicable, the Scheduled Employee’s or Scheduled Contractor’s job title or scope of employment work, date of hire or communication of transfer of employment shall be provided to each Business Employee engagement, annual base salary or hourly wage rate (as listed on applicable) or fee, target bonus opportunity for 2024 (if applicable), statutory notice period if not employed at will, and whether such Scheduled Employee is an employee census Automatic Transfer Employee or an Offer Employee (the “Employee CensusScheduled Workers Schedule”)) at least five . The Scheduled Workers Schedule shall be held in confidence and shall not be filed with the Bankruptcy Court (5) unless under seal). From time to time following the date hereof (and not later than 12 Business Days prior to the expected Closing Date), Subsequent Closing Date (i) Purchaser may, in its sole discretion, add any employee, independent contractor, consultant or Distribution Center Closing Dateother service provider of the Sellers, as applicable; provided, that in each case, their Subsidiaries or any offer or transfer of employment with respect to a Business Employee is subject professional employer organization whose job responsibilities relate to the condition that such Business Employee is employed by the Company ownership, operation or an Affiliate use of the Company on Transferred Assets or the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicableBusiness to the Scheduled Workers Schedule by providing the Casa Seller written notice of such addition, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12ii) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements extent necessary, the Sellers shall, in consultation with and following the approval of Purchaser, update the Scheduled Workers Schedule to reflect any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Datechanges thereto.
Appears in 1 contract
Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior Prior to the Closing DateDate and at a time chosen in consultation with Seller, Subsequent Purchaser shall offer employment on an at-will basis to the Business Employees, effective on the day following the Closing Date (or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employeeemployee on maternity leave, any offer short-term disability leave, long-term disability leave (subject to Section 6.09(i)) military leave or another approved leave of employment or communication of transfer of employment shall be made with a commencement date absence, effective as of the date such employee is able to commence active employment with Purchaser; provided that such employee actively returns to work in accordance with the applicable leave policy date is within twelve (12) 12 months of the Closing Date) in a comparable position, Subsequent Closing Date or Distribution Center Closing Dateat the same location, as applicable, at no less favorable base salary and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law annual bonus opportunities to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company . From and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to after the date of this Agreement. The Employee Census hereof until the Closing, the Seller shall first be delivered to (i) assist Purchaser Sub on the applicable Employee Data Trigger Date in making such offers and shall be updated by the Company no earlier than three (3ii) weeks prior to the Census Start Date for not solicit any Business Employee and or otherwise hire any Business Employee. Each Business Employee who becomes employed by Purchaser pursuant to this Section 6.09 shall be referred to herein as an “Acquired Employee” provided that with respect to any Business Employee added who is currently on maternity leave, short-term disability leave, military leave, long-term disability leave, or another approved leave of absence, such individual will not be deemed to the Employee Census pursuant to accept such an update, Purchaser Sub shall make an general offer of employment and will not become an Acquired Employee unless such individual commences active employment with Purchaser or its Affiliates within 12-months following the Closing Date, or, in the case of military leave, within the applicable period for leave provided by the Uniformed Services Employment and Reemployment Rights Acts (USERRA); provided, however, that Purchaser shall reimburse Seller for the compensation paid by Seller to such Acquired Employee (other than with regard to long-term disability leave) subsequent to the Closing Date. Purchaser shall afford Seller a reasonable opportunity to review and approve in advance the form and content of the offer letter to be used by Purchaser to communicate a transfer offers of employment as soon as practicable thereafter but no later than the Census Start Date(any such approval not to be unreasonably withheld by Seller).
Appears in 1 contract
Samples: Asset Purchase Agreement (Cytec Industries Inc/De/)
Employee Matters. (a) Purchaser Sub and/or Parent intends to continue the employment of the Employees of the Company after the Closing Date. For a period commencing on the Closing and ending on the one (1)-year anniversary of the Closing Date (but not beyond the termination of the relevant employee if sooner), Purchaser and/or Parent shall, or shall make an offer cause one of its direct or indirect Subsidiaries (including, following the Closing, the Company) to, provide the employees of the Company and their Subsidiaries as of the Closing (collectively, the “Company Employees”) with (i) employment at a base salary or wage rate and bonus opportunities (other than change in control, retention, equity or equity-based or one-time bonuses) that are, in the aggregate, no less than the base salary or wage rate and bonus opportunities (other than change in control, retention, equity or equity-based or one-time bonuses) as in effect with respect to such Company Employee immediately prior to the Closing, and (ii) benefits to the Company Employees that are substantially comparable to the benefits provided to the Company Employees immediately prior to the Closing; provided, however, that if deemed advisable by Purchaser and/or Parent in response to any global, national or local pandemic or similar event, Purchaser and/or Parent may change the compensation, benefits and/or other terms and/or conditions of employment or communicate to each Business of any Company Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Subconsistent with business needs, and no such action shall be treated as a breach of this Section 6.7(a). For eligibility, vesting, and benefit accrual purposes under the employee benefit plans of the Purchaser and its Affiliates providing benefits to the Company shallEmployees after the Closing Date, upon request, Purchaser and/or Parent shall use commercially reasonable efforts to assist credit each Company Employee with his or her years of service with the Companies before the Closing Date, to the same extent as such Person was entitled before the Closing Date to such credit under a corresponding Company Benefit Plan; provided, however, that the foregoing shall not apply (i) to the extent such credit would result in a duplication of benefits, or (ii) with respect to retiree medical, defined benefit pension plans, or for purposes of qualifying for subsidized early retirement benefits. Except as otherwise set forth in this Section 6.7 or as may be specifically required by applicable Law, Purchaser Sub and Parent shall not be obligated to require the Company to continue to provide any particular type of employee benefits or compensation to any Company Employee. To the extent applicable for the plan year in preparing which the Closing occurs, Purchaser and/or Parent shall use or shall cause its Affiliates to use commercially reasonable efforts to (a) waive all waiting periods, pre-existing condition exclusions, actively-at-work and delivering evidence of insurability requirements that would otherwise be applicable to a Company Employee or the Company Employee’s dependent to the same extent as such requirements were no longer applicable offer under a corresponding Company Benefit Plan; and (b) provide each Company Employee and his or communication. Such offer of employment her eligible dependents with credit for any co-payments or communication of transfer of employment shall be provided coinsurance and deductibles paid prior to each Business Employee the Closing under a Company Benefit Plan (as listed on an employee census (to the “Employee Census”)) at least five (5) Business Days same extent that such credit was given under the analogous Company Benefit Plan prior to the Closing Date) in satisfying any applicable deductible, Subsequent Closing Date co-payment, coinsurance or Distribution Center Closing Date, as applicable; provided, that maximum out-of-pocket requirements under any benefit plan of Purchaser and/or Parent or its Affiliates in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Company Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Dateparticipates.
Appears in 1 contract
Samples: Purchase Agreement (Proficient Auto Logistics, Inc)
Employee Matters. (a) Purchaser Sub (i) Not later than 10 days prior to the expected Closing Date, the Buyer shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser SubCompany Employee, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable which offer or communication. Such offer of employment or communication of transfer of employment shall be provided subject to each Business the Closing occurring and shall include (A) a rate of base salary or wages equal to 100% of the rate of base salary or wages in effect with respect to such Company Employee immediately prior to the Closing Date and (as listed on an employee census (the “B) amounts of cash incentive opportunities that are no less favorable than those in effect with respect to such Company Employee Census”)) at least five (5) Business Days immediately prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, provided that with respect to any each such Company Employee who is an Inactive EmployeeEmployee as of the 10th day prior to the expected Closing Date, any such offer of employment or communication of transfer of employment shall be made with a commencement date of by the date that Buyer only if such employee actively returns Seller Employee actually reports to work in accordance employment with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) Sellers on or prior to the date that is 90 days following the Closing Date (or such later period if required by Law) and is capable of this Agreement, which Census Summary shall be performing his or her job duties as of a date not more than ten (10) days in effect immediately prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Closing Date and with all accommodations, in which case such offer shall be updated by made within one Business Day following the date on which such Company no earlier than three (3) weeks prior Employee so reports to the Census Start Date for any Business employment. Each such Company Employee and with respect to any Business Employee added to the Employee Census pursuant to who accepts such an update, Purchaser Sub shall make an offer of employment shall commence employment with the Buyer immediately following the Closing (or, in the case of such Inactive Employees, as of the date immediately following the date on which such employee accepts employment with the Buyer, if later) (as applicable, the “Employment Date,” and those Seller Employees who accept employment with the Buyer are referred to as “Continuing Employees”) and for all purposes consistent with Law and except as otherwise expressly provided herein such employment from and after the Employment Date, as applicable shall be deemed to have occurred with no interruption or communicate a transfer break in service and no termination of employment as soon as practicable thereafter but no later employment. The Buyer shall not fire or otherwise discharge any Continuing Employees other than for cause until 45 days after the Census Start Closing Date.
Appears in 1 contract
Samples: Transaction Agreement (Affordable Residential Communities Inc)
Employee Matters. (a) Purchaser Sub Simultaneously with the Merger, the Surviving Corporation shall make an offer assume all employment agreements, consulting agreements and termination benefit agreements which are in effect at Company on the date hereof. As of employment or communicate the Effective Time, Parent shall cause the Surviving Corporation to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, honor and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing satisfy all obligations and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment liabilities solely with respect to a Business Employee is subject to the condition that such Business Employee is employed by Company Benefit Plans maintained at the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the CompanySubsidiary level. Notwithstanding the foregoing, Parent the Surviving Corporation shall not be required to continue any such particular Company Benefit Plan after the Effective Time, and Purchaser Sub shall indemnify any such Company Benefit Plan may be amended or terminated in accordance with its terms and hold applicable law. To the extent that any Company harmless Benefit Plan is terminated or amended after the Effective Time so as to reduce the benefits that are then being provided with respect to any Losses related participants thereunder, Parent shall arrange for each individual who is then a participant in such terminated or amended plan to any claim or threatened claim participate in a comparable benefit plan maintained by or on behalf Parent (solely in the event that Parent maintains a comparable plan) in accordance with the eligibility criteria thereof, and each individual shall be given credit, for purposes of any Excluded Employees arising out service requirement for participation or vesting (but not benefit accrual for purposes of Purchaser any defined benefit pension plan), for his or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee her period of service with Company or any claim for Excluded Employee Severance; provided thatCompany Subsidiary credited under a similar plan prior to the Effective Time, for subject to appropriate break in service rules. Subject to the avoidance approval of doubtParent's board of directors (or a duly authorized committee thereof), following the Effective Time, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect grant to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) employees of the Company Disclosure Schedules) (Surviving Corporation options to purchase shares of Parent Common Stock, based on the “Census Summary”) fair market value of Parent's Common Stock on or prior to the actual date of this Agreementgrant, in amounts which are comparable to options granted to similarly situated employees of Parent but, which Census Summary shall be as are not, in the aggregate, less than the aggregate number of a date not more than ten (10) days options to purchase shares of Company Common Stock granted to employees of Company prior to the date of this Agreement. The Employee Census shall first be delivered hereof (after giving effect to Purchaser Sub on the applicable Employee Data Trigger Date Reverse Split and the Exchange Ratio), which amounts shall be updated determined by the Company no earlier than three Parent's board of directors (3) weeks prior or a duly authorized committee thereof). Parent shall use its reasonable best efforts to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to obtain such an update, Purchaser Sub shall make an offer approval from its board of employment directors (or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Dateduly authorized committee thereof).
Appears in 1 contract
Employee Matters. (aa)As soon as practicable after the date hereof, the Sellers shall, and shall cause the other members of the Seller Group to provide the Buyer with a list containing the name, position, location, and base salary of each Employee, whether or not actively employed (e.g., including Employees on vacation and leave of absence, including maternity, family and medical leave, sick, military (whether qualified or otherwise) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Subshort-term disability leave), and the Company shall, upon request, use commercially reasonable efforts Sellers shall and shall cause the other members of the Seller Group to assist Purchaser Sub in preparing and delivering update the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days list periodically prior to the Closing DateDate to reflect new hires, Subsequent leaves of absence and employment terminations and provide copies of such updated lists to the Buyer promptly. On the Business Day prior to the Closing, the Sellers shall provide to the Buyer a list of individuals whose employment with a member of the Seller Group was terminated within 90 days prior to such date. The Buyer may, in its discretion, offer employment commencing as of the Closing Date or Distribution Center Closing Date, as applicableto any such employee on terms and conditions determined by the Buyer; provided, however, that the Buyer shall offer employment to a sufficient number of employees of the Sellers, in each case, any offer on terms and conditions and commencing on a date and time so as not to cause an employment loss or transfer of employment with respect to losses (as defined in the WARN Act) which would constitute a Business Employee is subject to mass layoff or plant closing triggering the condition that such Business Employee is employed by the Company or an Affiliate notice requirement of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”)WARN Act; provided, further, that Buyer’s obligation with respect to any Inactive Employeethe immediately preceding clause shall not apply if, any offer of employment or communication of transfer of employment shall be made with a commencement date of during the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of 90-day period immediately preceding the Closing Date, Subsequent Closing Date or Distribution Center the Sellers have terminated, at each of the locations set forth on Section 4.18(a) of the Disclosure Schedules more than the number of employees set forth opposite such location on Section 4.18(a) of the Disclosure Schedules under terms and conditions that would cause such terminations to constitute employment losses as defined in the WARN Act. Prior to the Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer Sellers shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that provide the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject Buyer reasonable access to the requirements Employees, and, to the extent permitted by applicable Law, such information regarding such Employees as is contained in personnel records, for purposes of any applicable collective bargaining agreement), and at permitting the same location(s) at Buyer to determine which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Dateemploy.
Appears in 1 contract
Samples: Asset Purchase Agreement
Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company Beginning on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary Sellers shall be make reasonable efforts to obtain from each Business Employee as soon as practicable thereafter consent to release to Purchaser all information (the "Employee Information") reasonably requested by Purchaser in writing about such Business Employees in order for Purchaser or a Purchaser Affiliate to decide to whom Purchaser or such Purchaser Affiliate will offer employment, subject, in each case, to any restrictions on the provision of such information under Applicable Law. Sellers shall provide the Employee Information to Purchaser within five (5) calendar days after the date of this Agreement or, with respect to any specific Business Employee, as soon as reasonably practical after Sellers obtain the Business Employee's consent, if later. Sellers shall permit the Purchaser or a date not more than ten (10) days prior Purchaser Affiliate to have reasonable access to the Business Employees beginning on the date of this Agreement. The No later than forty-five (45) calendar days after the date of this Agreement, Purchaser or a Purchaser Affiliate shall identify and provide to Sellers a written list of the Business Employees to whom Purchaser or a Purchaser Affiliate will offer employment effective as of the Closing Date. Each such offer of employment to a Business Employee Census shall first be delivered for a position that provides equal or greater base pay plus bonus opportunity compared to Purchaser Sub on the applicable position that the Business Employee Data Trigger held with a Seller or any Seller Affiliate as of the day immediately preceding the Closing Date and at a jobsite not in excess of fifty (50) miles from the Business Employee's jobsite on such date, each as disclosed in Schedule 3.19. Sellers agree to cooperate with Purchaser or a Purchaser Affiliate in its efforts to hire such Business Employees. Business Employees who become employed by Purchaser or by a Purchaser Affiliate in connection with the transactions contemplated by this Agreement shall be updated referred to herein as "Transferred Employees." Purchaser shall have no liability or responsibility for, and Sellers shall have sole liability and responsibility for, any and all severance pay and other employment termination obligations for all Business Employees who are not offered employment by Purchaser or a Purchaser Affiliate or who otherwise do not become Transferred Employees. Notwithstanding the Company foregoing, Sellers shall have no earlier than three (3) weeks prior liability or responsibility for any Purchaser Assumed Employee Liabilities. Sellers shall have no liability or responsibility for, and Purchaser and its Purchaser Affiliates shall have sole liability and responsibility for, any and all severance pay and other employment termination obligations for Transferred Employees to the Census Start Date extent such obligations relate to termination of employment with Purchaser or a Purchaser Affiliate. Nothing in this Section 5.8(a) is intended to or shall require Purchaser or its Affiliates to employ or continue to employ any such employee for any Business Employee and period of time following the Closing Date or to continue to maintain any term or condition of employment, including, without limitation, the position, title, compensation, location or employer, with respect to any Business Employee added such employee or otherwise to the Employee Census pursuant to treat any such employee on any basis other than as an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Dateemployee-at-will.
Appears in 1 contract
Employee Matters. (a) The employment of the employees of the Bank who continue as employees of Purchaser Sub on and after the Closing Date (the "Closing Date Employees") shall make be pursuant to the employment policies and practices of Purchaser; provided, however, any Closing Date Employee terminated within eight months after the Closing Date shall receive a severance payment equal to the higher of (i) severance payments due under the Purchaser's then current severance policy or (ii) severance payments due under the Seller's severance policy in effect at the Closing Date. However, a Closing Date Employee terminated within said eight months shall not be entitled to receive a severance payment if the termination is (i) for cause or (ii) if the terminated employee declines an offer for a position with compensation equal to or greater than said employee's compensation as of employment the Closing Date at an office of the Metropolitan Bank Group or communicate to each Business Employee one of its transfer affiliated bank locations within 15 miles of employment to the employee's location at the Bank. Purchaser Subshall pay, in either case, in a manner reasonably determined by Purchaser Subdischarge, and be responsible for all salary, wages, claims (including any severance claims) and employee benefits arising out of or related to such employment from and after the Company shallClosing Date. Seller and its Affiliates shall pay, upon requestdischarge and be responsible for all salary, use commercially reasonable efforts wages, claims and employee benefits relating to assist Purchaser Sub the employment of the Closing Date Employees before the Closing Date (including, but not limited to, accrued vacation or holiday pay payable in preparing lieu of time off or which may be carried over to future periods, annual or long-term incentive programs, pension, profit sharing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided savings plans, non-qualified deferred compensation plan and group health plan, including group health plan continuation coverage pursuant to each Business Code Section 4980B(f) arising under Seller's Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days Plans and Benefit Arrangements, including claims incurred prior to the Closing DateDate but reported thereafter), Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition extent that the liability for such Business Employee is employed by the Company salary, wages, claims and employee benefits were not paid or an Affiliate of the Company accrued on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, Financial Statements as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Date.
Appears in 1 contract
Employee Matters. (a) Purchaser Sub shall make an offer Section 7.04 of employment or communicate to the Seller Disclosure Schedule lists each Business Employee its transfer as of employment the date hereof. Sellers will promptly provide written notice and an updated Section 7.04 of the Seller Disclosure Schedule to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer event of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days any changes thereto prior to the Closing Date, Subsequent Closing Date provided that any such changes shall be limited to the matters permitted under this Section 7.04(a) or Distribution Center Section 5.03(xiv), voluntary terminations of employment of Business Employees and changes otherwise agreed to in writing by Purchaser. Prior to Closing, Purchaser shall advise Sellers of the Business Employees to whom Purchaser or its Affiliate intends to make offers of employment (which group shall include all Business Employees who are in the bargaining unit covered by the CBA, as that term is defined below, other than those Business Employees (which shall be three (3) in number) who Seller (in consultation with Purchaser), in coordination with the Union, to the extent necessary, identifies as being allocated to the Hunterstown CT Facility, and who will be removed from Section 7.04 of the Seller Disclosure Schedule prior to the Closing) (the “Target Employees”), with such offers of employment to be effective as of the Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that unless such Business Employee is employed by the Company or an Affiliate on a leave of the Company absence on the Closing Date, Subsequent in which case Sellers shall, or shall cause their Affiliates to, retain the employment of such Business Employees until, and such employment offer will be effective as of when, the Business Employee is available to return to active employment if such availability to return occurs within six months following the Closing Date (or Distribution Center Closing Dateany later date to the extent such Target Employee has instatement, as applicablereinstatement, and employment for re-hire or similar rights under applicable Law on such Business later date). Each such Target Employee shall begin on the first Business Day following who accepts such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment from and commences employment with Purchaser or communication of transfer of employment shall be made with its Affiliate is referred to herein as a commencement date of the date that such employee actively returns to work “Transferred Employee”. Except as otherwise specifically provided in accordance with the this Section 7.04 or as required by applicable leave policy within twelve (12) months Law, effective as of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication employment of transfer the Transferred Employees with Sellers shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (terminate and the reason such Business Employee is Transferred Employees shall cease all active participation in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer accrual of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of benefits under any applicable collective bargaining agreement), Seller Employee Plan. Sellers and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub their Affiliates shall indemnify and hold the Company harmless with respect to bear any Losses costs related to any claim or threatened claim claims made by or on behalf of any Excluded Employees Business Employee for any severance payments and benefits arising out of Purchaser or Purchaser Subin connection with Purchaser’s failure decision not to offer make offers of employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Datein accordance with this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Genon Americas Generation LLC)
Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior Prior to the Closing Date, Subsequent Seller will cause Guarantor, Seller, CGS or any of their Affiliates to terminate any leased employee services, temporary services or other agreements concerning or relating to Employees, Independent Contractors, or Persons performing work or services for the direct or indirect benefit of the Project, including the Operation and Maintenance Agreement between Seller and CGS, dated May 29, 2001, the WillStaff Worldwide Temporary Staffing Service Agreement between Cleco Corporation and WillStaff Worldwide Staffing dated September 4, 2001, the CT LTSA, the CCGT LTSA, and any agreements between Guarantor, Seller, CGS or any of their Affiliates and Xxx Xxxxxxxx Construction Company. Purchaser has no obligation to employ or retain any current or former Employees or Independent Contractors of Guarantor, Seller, CGS or any of their Affiliates before or after the Closing Date. Purchaser has no obligation to assume any employment agreements or other agreements concerning or relating to current or former Employees, Independent Contractors, or Persons performing work or services for the direct or indirect benefit of the Project. Purchaser may, in Purchaser's sole discretion, elect to offer employment that would not commence earlier than the next Business Day after the Closing Date to any current or Distribution Center Closing Dateformer Employees or Independent Contractors on such terms and conditions as Purchaser may determine, as applicable; providedbut Purchaser shall not be obligated to do so pursuant to this Agreement, that in each casethe Confidentiality Agreement or any EXECUTION VERSION other written or verbal agreement, representation or statement related to the Transactions. Seller shall not make, and shall cause Guarantor, CGS and their Affiliates to not make, any offer written or transfer verbal agreement, representation or statement to current or former Employees or Independent Contractors about the possibility of employment or retention on the Project with Purchaser or any of its Affiliates that is inconsistent with the foregoing provisions of this Section 6.18(a). Notwithstanding anything to the contrary contained in this Agreement or the Confidentiality Agreement, prior to the Closing, upon reasonable prior notice to Seller, Purchaser may communicate with any current or former Employee or Independent Contractor about the possibility of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing DatePurchaser. If Purchaser in its sole discretion, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure chooses to offer employment to any Employee or Independent Contractor and such individual accepts such offer, such individual shall be considered, for all purposes, as a newly-hired employee of Purchaser. In the event Purchaser decides to hire any such Excluded Employee former Employees of Guarantor, Seller, CGS or any claim for Excluded Employee Severance; provided thatof their Affiliates, for Purchaser shall notify Seller of such decision and Seller shall cause Guarantor, Seller, CGS or any of their Affiliates that are party to or benefited by the avoidance agreements described in this sentence to release those employees from any provisions of doubtthe "Acknowledgement and Protection of Confidential Information" agreements or other confidentiality agreements, Parent or any other agreement between Guarantor, Seller, CGS or any of their Affiliates and Purchaser Sub shall not indemnify and hold the Company harmless their former Employees with respect to matters relating to the Project, any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (Purchased Assets or the “Census Summary”) on Transactions, that may or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to does interfere with the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and Person's prospective employment with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start DatePurchaser.
Appears in 1 contract
Employee Matters. Without limiting any additional rights under any Benefit Plan, for a period of not less than twelve (a12) months following the Closing Date, Purchaser Sub shall, or shall make an offer cause the Companies, the Company Subsidiaries and Newco to, maintain employee benefit plans, programs, policies and arrangements, severance, salaries and bonus and incentive programs for each current employee of employment or communicate to each Business Employee its transfer of employment to Purchaser Subthe Companies, the Company Subsidiaries and Newco (the "Covered Employees"), that are comparable, in either casethe aggregate, in a manner reasonably determined by Purchaser Subto the salaries, bonus and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing incentive plans and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be benefits provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days such employees immediately prior to the Closing DateDate (excluding retiree medical coverage and, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment solely with respect to a Covered Employees who are not Canadian Business Employee is subject Employees, defined benefit plan coverage and non-qualified defined contribution plan coverage). Seller shall assume the employment of and provide any applicable benefits to each employee of the condition that such Business Employee is employed by Companies, the Company Subsidiaries and Newco on an approved medical leave of absence or an Affiliate disability as of the Company on the Closing Date, Subsequent Closing Date until such time, if any, that such individual returns to active employment with the Companies, the Company Subsidiaries or Distribution Center Closing DateNewco, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”)subject to applicable Laws; provided, furtherhowever, that Purchaser shall, or shall cause the Companies, the Company Subsidiaries or Newco to, reimburse Seller for all costs associated with respect to providing such employees with disability benefits under any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that Benefit Plans if such employee actively returns to work in accordance with the applicable leave policy active employment within twelve (12) months of the Closing Date, Subsequent Closing Date at which time such employee shall be transferred to the Companies, the Company Subsidiaries or Distribution Center Closing DateNewco, as applicableappropriate, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment thereafter shall be for considered to be a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the CompanyCovered Employee. Notwithstanding the foregoing, Parent subject to applicable law, nothing in this Agreement shall be interpreted to or will in any way guarantee employment or otherwise change the existing at-will nature of any employee's employment relationship. Each Covered Employee shall be given credit for all service with the Companies, the Company Subsidiaries, CBS Canada or Newco (and service credited by the Companies, the Company Subsidiaries, CBS Canada or Newco) for crediting service for purposes of eligibility to participate, vesting and determination of level of benefits under all employee benefit plans, programs policies and arrangements in which the Covered Employees become participants to the extent such service is recognized under the Benefit Plans immediately prior to the Closing Date and in no event shall such credit result in duplicative benefits. After the Closing Date, Purchaser, the Companies, the Company Subsidiaries and Newco, as applicable, shall (i) waive all limitations as to preexisting conditions and waiting periods with respect to participation and coverage requirements applicable to the Covered Employees and their spouses and/or dependents (the "Covered Dependents") under any welfare benefit plans that such Covered Employees and Covered Dependents may be eligible to participate in after the Closing Date but only to the extent such limitations and waiting periods were waived or satisfied under the Benefit Plans and (ii) provide each Covered Employee and Covered Dependent with credit for any co-payments and deductibles paid during the portion of the relevant plan year prior to the Closing Date in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans that such Covered Employees and Covered Dependents are eligible to participate in after the Closing Date. Except as otherwise expressly provided in this Article VI or in connection with the Permitted Reorganization, (x) Purchaser Sub and its Subsidiaries and ERISA Affiliates shall not assume any obligations under or liabilities with respect to, and shall not receive any right or interest in, any of the Benefit Plans (other than the Company Plans), and (y) Seller shall retain, assume, and be responsible for all liabilities and obligations relating to the participation through the Closing Date of the Covered Employees under (1) the CBS Retirement Plan and the other defined benefit plans of Seller and its respective ERISA Affiliates (other than the Company Plans) and (2) all other Benefit Plans (other than the Company Plans). Without limiting the generality of the foregoing, as of the Closing Date, Purchaser shall, or shall cause the Companies and the Company Subsidiaries, as applicable, to honor (x) those employment, change-in-control, termination and severance agreements, and all similar agreements (other than retention agreements), in each case, to which the Companies or any of the Company Subsidiaries is or was a party as of the Closing Date, (y) any unused vacation and sick time accrued prior to the Closing Date and (z) any Company Plan (including the Seasonal Employees PPO Health Plans (Basic and Enhanced Options)). As of the Closing Date, Purchaser shall, or shall cause Newco to honor (x) those employment, change-in-control, termination and severance agreements (other than retention agreements), and all similar agreements, in each case, to which Newco is or was a party as of the Closing Date, (y) any unused vacation and sick time accrued prior to the Closing Date and (z) and all plans which are to be established for Canadian Business Employees in connection with the Permitted Reorganization). Effective as of the Closing Date, Purchaser shall, or shall cause the Companies or the Company Subsidiaries, as applicable, to be responsible for providing continuation coverage as required by Section 4980B of the Code, Part 6 of Title I of ERISA or applicable law ("COBRA"), under a group health plan maintained by Purchaser or the Companies or the Company Subsidiaries, as applicable, to the Covered Employees and any other beneficiaries under COBRA with respect to such employees, who have a COBRA qualifying event (due to termination of employment with the Companies or the Company Subsidiaries or otherwise) on or after the Closing Date. The Purchaser or the Companies or the Company Subsidiaries, as applicable, shall indemnify and hold the Company Seller and its respective Affiliates harmless with respect to from any Losses related to and all damages incurred by the Seller or any claim or threatened claim by or on behalf of any Excluded Employees arising out its Affiliates as a result of the failure of the Purchaser or Purchaser Sub’s failure the Companies or the Company Subsidiaries, as applicable, to offer employment to comply with the requirements of COBRA where such requirement arises on or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided thatafter the Closing Date, for the avoidance of doubt, Parent and Purchaser Sub including applicable notice requirements. The Seller shall not indemnify and hold the Purchaser, the Company, the Company Subsidiaries and their respective Affiliates harmless from any and all damages incurred by any of them as a result of the failure of the Seller, the Company or the Company Subsidiaries, as applicable, to comply with the requirements of COBRA with respect to COBRA qualifying events that occur before the Closing Date, including applicable notice requirements. Effective as of the Closing Date, the Covered Employees shall cease to accrue benefits under, and the Companies and the Company Subsidiaries shall cease to be participating employers in, the defined contribution plans (both qualified and non-qualified) of the Seller and its respective Affiliates in which they participate. As of the Closing Date, Seller shall cause the participation by Covered Employees in the CBS 401(k) Plan (the "Seller 401(k) Plan") to cease. Purchaser shall cause a 401(k) Plan designated by Purchaser (the "Purchaser 401(k) Plan") to accept the rollover, by direct or indirect rollover, as selected by each Covered Employee, of that portion of the Covered Employees' accounts in the Seller 401(k) Plan that constitutes an "eligible rollover distribution" as that term is defined by Section 402(c)(4) of the Code, provided that at the time a Covered Employee elects such a rollover that Covered Employee is employed by the Companies or any Losses related Company Subsidiary. Any such rollover will be effected in cash and, as applicable, any notes evidencing loans from the Seller 401(k) Plan to the Covered Employee electing such rollover. Purchaser and Seller will, and will cause the trustees of their respective 401(k) plans to, cooperate with each other with respect to the rollover of the eligible rollover distribution portions, including loans, of the Covered Employees' account balances in the Seller 401(k) Plan to the Purchaser 401(k) Plan. Effective as of the Closing Date, the Covered Employees shall cease to accrue benefits under, and the Companies and the Company Subsidiaries shall cease to be participating employers in, the defined benefit plans (both qualified and non-qualified) of the Seller and its respective Affiliates in which they participate. As of the Closing Date, Seller shall cause the participation by Covered Employees in the CBS Retirement Plan to cease. In addition to the obligations of the Purchaser or the Companies and the Company Subsidiaries, as applicable, set forth in Section 6.1(a), immediately after the Closing Date, Purchaser agrees that, for a claim for compensation period of twelve (12) months following the Closing Date, the Purchaser or the Companies and the Company Subsidiaries, as applicable, shall provide each Covered Employee who is terminated by the Companies or the Company Subsidiaries "without cause" with severance benefits, which benefits arising shall be the greater of (i) the benefits provided under any compensation or benefit plan, agreement or arrangement severance plan maintained by the Purchaser or the Companies or the Company or its AffiliatesSubsidiaries, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) as applicable, for similarly situated employees of the Purchaser or the Companies or the Company Disclosure SchedulesSubsidiaries, as applicable, or (ii) (the “Census Summary”) on or prior to date benefits provided under the Severance Policy for Full-Time Regular Employees of this Agreement, which Census Summary shall be Paramount Parks as of a date not more than ten (10) days in effect immediately prior to the date Closing Date. Section 6.1(c)(ii) and Sections 6.1(d) through (g) do not apply to (x) Covered Employees who participate in the Benefit Plans that apply only to Canadian Business Employees (the "Canadian Benefit Plans") prior to the Closing Date or (y) the Canadian Benefit Plans. In connection with the Permitted Reorganization, Canadian Business Employees shall cease to accrue benefits under the Pension Plan for Salaried Employees of this Agreement. The Employee Census shall first be delivered CBS International Canada Ltd. and Affiliates Companies (the "CICL Plan") and Newco shall: establish a defined contribution registered pension plan to provide benefits to Canadian Business Employees on and after the Closing Date (the "Purchaser Sub on Pension Plan"); and indemnify CBS Canada and/or the applicable Employee Data Trigger Date and shall be updated CICL Plan if any actions taken by Newco in the Company no earlier than three (3) weeks prior to year period following the Census Start Closing Date in respect of the Purchaser Pension Plan or the Canadian Business Employees results in a partial wind-up of the CICL Plan. Newco shall indemnify CBS Canada and/or the CICL Plan for any Business Employee and expenses associated with respect to any Business Employee added to the Employee Census pursuant partial wind-up of the CICL Plan, as well as the amount by which the total assets distributed from the CICL Plan in relation to such an update, Purchaser Sub shall make an offer a partial plan wind-up exceeds the total amount of employment or communicate a transfer assets that would be distributed from the CICL Plan if the Canadian Business Employees terminated participation in the CICL Plan as of employment as soon as practicable thereafter but the partial wind-up date assuming there had been no later than partial wind-up of the Census Start Date.CICL Plan. TAX MATTERS
Appears in 1 contract
Samples: Purchase Agreement (Cedar Fair L P)
Employee Matters. (a) Purchaser Sub As soon as practicable after the date hereof, the Sellers shall, and shall make an offer cause the other members of employment the Seller Group to provide the Buyer with a list containing the name, position, location, and base salary of each Employee, whether or communicate to each Business Employee its transfer not actively employed (e.g., including Employees on vacation and leave of employment to Purchaser Subabsence, in either caseincluding maternity, in a manner reasonably determined by Purchaser Subfamily and medical leave, sick, military (whether qualified or otherwise) or short-term disability leave), and the Company shall, upon request, use commercially reasonable efforts Sellers shall and shall cause the other members of the Seller Group to assist Purchaser Sub in preparing and delivering update the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days list periodically prior to the Closing DateDate to reflect new hires, Subsequent leaves of absence and employment terminations and provide copies of such updated lists to the Buyer promptly. On the Business Day prior to the Closing, the Sellers shall provide to the Buyer a list of individuals whose employment with a member of the Seller Group was terminated within 90 days prior to such date. The Buyer may, in its discretion, offer employment commencing as of the Closing Date or Distribution Center Closing Date, as applicableto any such employee on terms and conditions determined by the Buyer; provided, however, that the Buyer shall offer employment to a sufficient number of employees of the Sellers, in each case, any offer on terms and conditions and commencing on a date and time so as not to cause an employment loss or transfer of employment with respect to losses (as defined in the WARN Act) which would constitute a Business Employee is subject to mass layoff or plant closing triggering the condition that such Business Employee is employed by the Company or an Affiliate notice requirement of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”)WARN Act; provided, further, that Buyer’s obligation with respect to any Inactive Employeethe immediately preceding clause shall not apply if, any offer of employment or communication of transfer of employment shall be made with a commencement date of during the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of 90-day period immediately preceding the Closing Date, Subsequent Closing Date or Distribution Center the Sellers have terminated, at each of the locations set forth on Section 4.18(a) of the Disclosure Schedules more than the number of employees set forth opposite such location on Section 4.18(a) of the Disclosure Schedules under terms and conditions that would cause such terminations to constitute employment losses as defined in the WARN Act. Prior to the Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer Sellers shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that provide the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject Buyer reasonable access to the requirements Employees, and, to the extent permitted by applicable Law, such information regarding such Employees as is contained in personnel records, for purposes of any applicable collective bargaining agreement), and at permitting the same location(s) at Buyer to determine which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Dateemploy.
Appears in 1 contract
Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior Prior to the Closing DateClosing, Subsequent Closing Date the Buyer shall offer, or Distribution Center Closing Datecause a Buyer Designee to offer, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate employ all Current Employees of the Company Business who: (i) are not then on authorized leave of absence, sick leave, short or long term disability leave, or military leave (“Active Employees”) with employment commencing as of the Closing DateClosing; and (ii) are then on authorized leave of absence, Subsequent Closing Date sick leave, short or Distribution Center Closing Datelong term disability leave, as applicable, or military leave and who return to active employment for such Business Employee shall begin on the first Business Day immediately following such date absence and within six (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (126) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Datesuch later date as required under applicable Laws (“Inactive Employees”) with employment (the “Return Deadline”). For purposes of this Agreement, as applicable, each Active Employee and if such Inactive Employee does not so return within twelve (12) months, then the who receives such an offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject referred to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or as an Affiliate of the Company“Offeree”. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than At least ten (10) days prior to the date Closing Date, the Buyer will provide the Seller with a schedule setting forth a list of this Agreementthe names of all Offerees. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make Each Offeree who accepts an offer of employment and actually commences employment on the applicable Employment Commencement Date is hereinafter referred to as a “Transferred Employee” and the “Employment Commencement Date” as referred to herein shall mean (x) as to those Transferred Employees who are Active Employees, the Closing Date, and (y) as to those Transferred Employees who are Inactive Employees, the date that is on or communicate prior to the Return Deadline, on which the Transferred Employee begins employment with Buyer or a transfer Buyer Designee. For the avoidance of doubt, if an Inactive Employee does not return to active employment as soon as practicable thereafter but on or prior to the Return Deadline, Buyer and its Affiliates shall have no later obligation to offer employment to such Inactive Employee and none of Buyer or any of its Affiliates shall have any liability with respect to such Inactive Employee. The Buyer hereby agrees to provide, or cause one of the Buyer Designee to provide, each Transferred Employee during the one (1) year period immediately following the Closing Date or, if earlier, until such Transferred Employee ceases to provide services to the Buyer or any of its Affiliates, (i) base salary or other base cash compensation or wages that is not less than the Census Start base salary or other base cash compensation or wages provided to such Transferred Employee immediately prior to the Closing Date, and (ii) other employee benefits (including periodic (whether annual or otherwise) cash incentive compensation opportunities) that are substantially comparable in the aggregate to the other employee benefits (including periodic (whether annual or otherwise) cash incentive compensation opportunities) provided to such Transferred Employee by the Selling Entities immediately prior to the Closing Date; provided that, for purposes of the foregoing comparison, equity or equity-based compensation, retention bonuses, transaction bonuses, change in control bonuses, severance plan, and eligibility to participate in any defined benefit pension plan, retiree medical plan and/or deferred compensation plan shall be excluded. Buyer acknowledges and agrees that Buyer shall be exclusively liable for any claims related to discrimination that arise solely from Buyer’s actions taken in selecting any Offerees. The Parties agree that no Transferred Employee shall have, or be deemed to have, experienced a “separation from service” within the meaning of Section 409A of the Code.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ascena Retail Group, Inc.)
Employee Matters. (a) Purchaser Sub Sellers shall make an offer take all actions to ensure that Sellers’ or CIT’s employment of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (other than an Excepted Business Employee or a Leave Employee) shall cease effective as listed of the Closing Date. Sellers will ensure full and final payment of all compensation (including salary, commissions and accrued bonuses) due and owing to such terminated employees as of the close of business on an employee census the day preceding the Closing Date. Sellers or CIT in their sole discretion shall determine whether Sellers’ or CIT’s employment of Excepted Business Employees or Leave Employees shall continue on or after the Closing Date. Except for up to ten Business Employees to be identified in Schedule 8.4(A) (the “Employee Census”)) such schedule to be delivered by US Buyer to Sellers at least five (5) Business Days three business days prior to the Closing Date, Subsequent Closing Date “Excepted Business Employees”), US Buyer shall offer to all Business Employees employed by CIT Technologies or Distribution Center CIT on the date of this Agreement and to all Business Employees hired by CIT Technologies in the ordinary course after the date of this Agreement but prior to the Closing Date, and Canadian Buyer shall offer to all Business Employees employed by CIT Canada on the date of this Agreement and to all Business Employees hired by CIT Canada in the ordinary course after the date of this Agreement but prior to the Closing Date, employment commencing immediately after Closing, at substantially similar salaries and with substantially similar bonus opportunities as applicablein effect as of the Closing Date; provided, however, that nothing in each case, this Agreement shall create any offer obligation on the part of either Buyer to continue salary or transfer bonus levels after 2004 or to continue the employment of employment with any Business Employee for any period of time. With respect to a Business Leave Employee, a Buyer’s offer of employment shall be conditioned upon the Leave Employee is subject to the condition that such Business Employee is employed by the Company commencing, or an Affiliate returning to, active employment within 90 days of the Company Closing Date, unless otherwise agreed upon by such Buyer and the Leave Employee. Notwithstanding the foregoing, during the 180-day period beginning on the Closing Date, Subsequent Closing Date or Distribution Center Closing Dateeach applicable Buyer shall provide severance pay (which, in the case of the Business Employees of CIT Canada, shall include such pay in lieu of notice and severance pay as applicable, and employment for such is required by applicable law) to any Transferred Business Employee whose employment with such Buyer is terminated for a reason that would have entitled such employee to severance pay under the severance plan maintained as of the date hereof by CIT Technologies (or, in the case of the Business Employees of CIT Canada, in accordance with applicable law) if such termination had occurred under like circumstances while such employee was employed by such Seller or CIT. Any severance payable pursuant to the immediately preceding sentence shall begin on be no less favorable to the first Transferred Business Day following Employee to whom such severance is payable than if such severance was paid under the severance plan maintained as of the date hereof by CIT Technologies (or, in the “Census Start Date”case of the Business Employees of CIT Canada, in accordance with applicable law); provided. Sellers shall reimburse Buyers for the amount of any severance paid pursuant to this Section 8.4(a), further, that but not more than (i) $2,000,000 minus (ii) the Accrued Vacation Amount minus (iii) any severance (or pay in lieu of notice and severance pay as is required by applicable law with respect to any Inactive Employee, any offer of employment Excepted Business Employee or communication of transfer of employment Leave Employee employed by CIT Canada) paid on or after the Closing Date by Sellers to the Excepted Business Employees or the Leave Employees; provided that there shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open no subtraction for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject severance payable to the requirements President of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the CompanyTechnology Rentals & Services. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold it hereby is agreed that nothing in this Agreement constitutes an agreement by Buyers to adopt the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf terms of any Excluded Employees arising out of Purchaser severance plan or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement plans maintained by the Company or its AffiliatesSellers, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with except as expressly provided in this Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Date8.4(a).
Appears in 1 contract
Employee Matters. (a) Purchaser Sub shall make Purchasers acknowledge that (i) certain employees who work exclusively in the Business are employed by WC or an offer Affiliate of employment or communicate WC rather than by WCS (such employees are referred to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Subherein as the "Dedicated Employees"), and (ii) certain employees of WC or an Affiliate of WC provide services on behalf of the Company shallBusiness as part of their responsibilities but also provide services on behalf of WC or an Affiliate of WC (such employees are referred to herein as the "Shared Employees"). Schedule 5.5(a) attached hereto sets forth a list of all Dedicated Employees as of the date hereof and a description of the types and number of full time equivalent Shared Employees as of the date hereof. As soon as practicable after the execution hereof, upon requestSellers shall deliver to Purchasers a list of all Shared Employees. No later than ten business days after the date such list is delivered, use commercially reasonable efforts Purchasers shall deliver to assist Purchaser Sub in preparing and delivering Sellers a list of the applicable offer Shared Employees Purchasers would like to become employees of WCS or communicationa WC Subsidiary as of the Closing Date as contemplated by this Section 5.5(a) (such employees are referred to as the "Selected Shared Employees"). Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) No later than two Business Days prior to the Closing DateClosing, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer WCS shall extend offers of employment with respect to a Business Employee is subject to the condition that such Business Employee is Dedicated Employees and the Selected Shared Employees who are employed by the Company WC or an Affiliate any affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, WC as applicable, and employment for such Business Employee shall begin on the first Business Day following of such date (which offers may include the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date requirement that such employee actively returns execute such agreements or complete such other activities as any new employee of WCS or such WCS Subsidiary would be required to work in accordance execute or complete), offering to employ such Dedicated Employees and Selected Shared Employees effective as of the Closing Date on terms and conditions consistent with the applicable leave policy within twelve (12) months terms and conditions on which WCS or such WC Subsidiary employs similarly situated employees, including without limitation, participation in the WCS Employee Benefit Plans as provided in Section 5.5(d). As of the Closing Date, Subsequent Closing Date WCS or Distribution Center Closing Date, as applicable, a WC Subsidiary shall hire and if employ each such Inactive Dedicated Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Selected Shared Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason who accepts such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee employment. (subject The Employees so employed are referred to herein as the requirements of any applicable collective bargaining agreement"Transferred Employees."), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Date.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Williams Communications Group Inc)
Employee Matters. (a) Purchaser Sub Effective as of the Closing Date, Parent shall make an offer of employment terminate or communicate to each Business Employee use its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering cause the applicable offer or communication. Such offer Sellers to terminate the employment of employment or communication all of transfer of employment shall be provided to each Business Employee (as the Active Employees listed on an employee census the attached Section 6.11(a)(1)(A) of the Disclosure Schedule who are not TUPE Employees (the “Employee CensusClosing Hire Employees”), and effective as of the date that is ninety (90) at least five (5) Business Days prior to days following the Closing Date (the “Transition Date”), Subsequent Parent shall terminate or use its commercially reasonable efforts to cause the Sellers to terminate the employment of all of the Active Employees listed on the attached Section 6.11(a)(1)(B) of the Disclosure Schedule who are not TUPE Employees (the “Transition Hire Employees” and, together with the Closing Hire Employees, the “Hire Employees”). The Buyer shall offer employment to all Closing Hire Employees effective as of the Closing Date and to all Transition Hire Employees effective as of the Transition Date. All of the Non-Active Employees listed on Section 6.11(a)(2) of the Disclosure Schedule who are not TUPE Employees shall be offered employment by the Buyer if they return to active work within 180 days of the Closing Date or Distribution Center Closing Datesuch later time as required under any applicable Law, as applicable; provided, that in each case. Such list also identifies separately those UK employees whose employment will transfer automatically to the Buyer by operation of TUPE (the “TUPE Employees”). To the extent that the employment of a TUPE Employee does not transfer automatically by operation of law to the Buyer for any reason, any offer or transfer such individual shall be deemed to be a Closing Hire Employee who is not a TUPE Employee, except for the purposes of Section 6.11(g)(v) below. Each Hire Employee who accepts employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate Buyer as of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing the Transition Date, as applicable, and employment for such Business each Non-Active Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with who is not a commencement date of the date that such employee actively TUPE Employee who returns to work and accepts employment with the Buyer on a later date in accordance with this section shall be referred to herein as a “Transferred Employee”. During the applicable leave policy within twelve Continuation Period (12) months or, if earlier, until the termination of employment of the Closing Daterelevant Transferred Employee), Subsequent Closing Date the Buyer shall provide, or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law cause to remain open for a longer period; be provided, further, that the Employee Census shall state to each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Transferred Employee (i) base salary, non-equity based bonus, severance and other incentive compensation opportunities that are no less favorable, in the reason aggregate, to those provided to such Business Transferred Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject immediately prior to the requirements of any applicable collective bargaining agreement), PRN Closing and at the same location(s(ii) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided thatemployee benefits (which, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify include any equity-based benefits) that are either, in Buyer’s sole discretion, comparable, in the aggregate, to those provided to such Transferred Employee immediately prior to the PRN Closing or the same as those provided to the Buyer’s existing employees in the United States. Notwithstanding anything to the contrary contained herein, the Buyer shall pay, in the manner and hold at the Company harmless time paid in past practice, all bonuses payable to Transferred Employees and TUPE Employees for services performed on or prior to the Closing Date to the extent accrued as a Current Liability on the Closing Working Capital Statement. Notwithstanding the foregoing in this Section 6.11 or any other provision of this Agreement, with respect to any Losses related United States Business Employee who is receiving or has satisfied the conditions to a claim for receive short-term or long-term disability or workers’ compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) as of the Company date hereof, each of whom is identified on Section 6.11 of the Disclosure Schedules) Schedule (each, an “STD Employee”), if such STD Employee returns to active service within six months following the “Census Summary”) on Closing Date or prior to date of this Agreementat such other later time as required by applicable Law, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub Buyer shall make an offer of employment to such STD Employee that satisfies the conditions of this Section 6.11, and if such STD Employee accepts such offer of employment, such STD Employee shall be a Transferred Employee for all purposes of this Agreement. The Buyer shall reimburse the Sellers for the cost of short-term disability and workers’ compensation coverage provided to the STD Employees and all out-of-pocket employment termination costs, if any, incurred by the Sellers or communicate a transfer any of employment as soon as practicable thereafter but no later than the Census Start Datetheir Affiliates with respect to any STD Employee.
Appears in 1 contract
Employee Matters. As of the Closing Date, the Sellers shall terminate all of their employees at the Facilities (aexcept those two employees whose employment Contracts are being assumed as set forth in (i) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Subimmediately hereafter), and Buyer shall (i) assume the Company shall, upon request, use commercially reasonable efforts two employment Contracts set forth on Schedule 1.1(i) and (ii) offer to assist Purchaser Sub in preparing and delivering hire substantially all such other employees commencing as of the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be Closing Date at compensation levels consistent with those being provided to each Business Employee (as listed on an employee census (by the “Employee Census”)) at least five (5) Business Days Sellers immediately prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect . Buyer shall provide a list to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and Sellers at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than least ten (10) days prior to Closing of all employees of the date of this AgreementSellers that Buyer does not intend to hire, if any. The Employee Census shall first offers of employment will be delivered subject to Purchaser Sub on reasonable and satisfactory job performance by each individual, and no such offer will alter the applicable Employee Data Trigger Date and status of any "at will" employee. Nothing herein shall be updated by the Company no earlier than three (3) weeks prior deemed to the Census Start Date for affect or limit in any Business Employee and way normal management prerogatives of Buyer with respect to employees or to create or grant to any Business Employee added such employees third party beneficiary rights or claims of any kind or nature. Within the period of ninety (90) days before the Closing, the Sellers shall not, and within the ninety (90) days following the Closing, Buyer shall not: (1) permanently or temporarily shut down a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss during any thirty (30) day period at the single site of employment for fifty (50) or more employees, excluding any part-time employees; or (2) have a mass layoff at a single site of employment of at least thirty-three percent (33%) of the active employees and at least fifty (50) employees, excluding part-time employees. The terms "single site of employment," "operating unit," "employment loss" and "mass layoff" shall be defined as in the Workers Adjustment Retraining and Notification Act (the "WARN ACT"). With respect to terminations of employees following the Closing, Buyer shall be responsible for any notification required under the WARN Act. To the extent Buyer fails to provide proper WARN Act notice (as and if required) Buyer shall be responsible for payments due affected employees under the WARN Act. In respect of the employees employed by Buyer, it shall provide such employees with employee benefits consistent with the benefits generally offered to employees of Affiliates of Buyer in the same geographic area as the Facilities and, to the Employee Census pursuant extent the Sellers have qualified retirement programs for such employees, Buyer shall recognize the existing seniority of all such employees for benefits purposes and shall provide credit under such plans for purposes of determining eligibility and vesting and the rate of benefit accrual (but not actual benefit accrual); provided, however, that no such credit need be given in respect of any new plan commenced or participated in by Buyer in which no prior service credit is given or recognized to or for other plan beneficiaries. In extending such benefits, Buyer shall waive pre-existing conditions limitations in Buyer's welfare benefit plans which might otherwise apply to such an update, Purchaser Sub shall make an offer employees except to the extent employees have not satisfied such limitations under the current welfare benefit plans of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start DateSellers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Psychiatric Solutions Inc)
Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser SubExcept as otherwise provided below, in either case, in a manner reasonably determined by Purchaser Sub, and the Company Buyer shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company close of business on the Closing Date, Subsequent offer employment to all Employees who are actively at work in the Business or are on temporary disability, worker's compensation, leave of absence, vacation or sick leave on the Closing Date. The terms and conditions to be offered by Buyer to each of such Employees shall be substantially equivalent to the terms and conditions being paid to each such Employee by Sellers on the Closing Date. The employment by Buyer of any Employee who accepts the terms and conditions of employment offered by Buyer will commence as of the close of business on the Closing Date. For purposes of this Agreement, Employees who accept employment with Buyer as of the close of business on the Closing Date or Distribution Center are hereinafter referred to as "Post-Closing Employees." With respect to any Post-Closing Employee who, during the period continuing for four (4) months following the Closing Date, as applicable, Buyer either terminates (other than for cause) or does not continue to offer terms and conditions of employment for that are substantially equivalent to the terms and conditions of employment being paid to such Business Post-Closing Employee shall begin by Sellers on the first Business Day following such date (the “Census Start Closing Date”); provided, further, that with respect Buyer shall reimburse Sellers for any severance payments and related payments required to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work by Sellers in accordance with the applicable leave policy within twelve (12) months of severance plan described on Schedule 6.17 to such Post- Closing Employee. Sellers agree to cooperate with Buyer by permitting Buyer throughout the period prior to the Closing Date, Subsequent Date to meet with Employees at such reasonable times as shall be approved by a representative of Sellers and to distribute to such Employees such forms and other documents relating to employment by Buyer after the Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then Buyer shall reasonably request. Although Buyer has no present intention of terminating the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at Post-Closing Employees or reducing the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf compensation of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its AffiliatesPost-Closing Employee, other than Excluded Employee Severance. The Company for "cause" or by reason of a change in circumstances affecting or relating to the Business, nothing in this Section 6.17 shall deliver a census summary (which shall comply with Section 6.14(a) be deemed to require Buyer to retain any of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date Post-Closing Employees for any Business Employee fixed period of time or at any particular compensation rate or in any particular position or prevent Buyer from being able to continue, modify or establish such benefits and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer conditions of employment as soon as practicable thereafter but no later than the Census Start Dateit shall determine in its sole discretion. Nothing herein contained shall grant to any person any right of employment, nor shall anything herein contained constitute an agreement to employ any person.
Appears in 1 contract
Samples: Purchase Agreement (Sequa Corp /De/)
Employee Matters. The employment of the employees of the Bank who continue as employees of Purchaser on and after the Closing Date (athe "Closing Date Employees") Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided pursuant to each Business the employment policies and practices of Purchaser; provided, however, any Closing Date Employee terminated without cause within eight months after the Closing Date shall receive a severance payment equal to two weeks' compensation at the employee's then current wages. From and after the Closing Date Sellers and its Affiliates shall have no responsibility or liability to any person or entity for salary, wages, claims (as listed on an including any severance claims) and employee census benefits arising out of or related to employment with the Bank from and after the Closing Date. Prior to the Closing Date Bank shall pay, discharge and be responsible for all salary, wages, claims and employee benefits relating to the employment of the Closing Date Employees before the Closing Date (the “including, but not limited to, accrued vacation or holiday pay payable in lieu of time off or which may be carried over to future periods, annual or long-term incentive programs, pension, profit sharing and savings plans, non-qualified deferred compensation plan and group health plan, including group health plan continuation coverage pursuant to Code Section 4980B(f) arising under Seller's Employee Census”)) at least five (5) Business Days Plans and Benefit Arrangements, including claims incurred prior to the Closing DateDate but reported thereafter), Subsequent to the extent that the liability for such salary, wages, claims and employee benefits were not paid or accrued on the Financial Statements as of the Closing Date and Purchaser shall have no direct or Distribution Center Closing Dateindirect liability or responsibility therefor to any person or entity. Prior to the Closing, as applicable; providedSeller, that in each case, any offer or transfer of employment the Bank and their Affiliates shall take such action with respect to a Business the Employee is subject Plans and Benefit Arrangements to provide that the condition that such Business Closing Date Employees will cease to be active participants or accrue benefits under the Employee is employed by the Company or an Affiliate Plans and Benefit Arrangements as of the Company on Closing Date. By the Closing Date, Subsequent all Closing Date Employees will be fully vested by Seller in its current 401(k) plan. As soon as practicable after Closing, Purchaser shall cause the Bank to permit the Closing Date Employees to participate in the Bank's group hospitalization, medical, life and disability insurance plans to the extent available at that time, provided that said employees are currently covered by and participating in the Bank's or Distribution Center Seller's plans or who otherwise have a Certificate of Credible Coverage acceptable to Purchaser's insurance carrier. Nothing in this Section 5.08 is intended, nor shall it be construed, to confer any express or implied third party beneficiary rights in any person including present or former employees of the Bank, the Closing Date, as applicableDate Employees, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment beneficiaries or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliatesdependents thereof, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of Seller or the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start DateBank.
Appears in 1 contract
Samples: Stock Purchase Agreement (Mainstreet Bankshares Inc)
Employee Matters. (a) Purchaser Sub On the LMA Commencement Date, Buyer shall make an offer of employment or communicate to each Business Station Employee its transfer who is employed immediately prior to the LMA Commencement Date and who (i) is not on authorized leave of employment to Purchaser Subabsence, in either casesick leave, in a manner reasonably determined by Purchaser Subshort or long term disability leave, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer military leave or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee layoff with recall rights (as listed on an employee census (the “Employee CensusActive Employees”), or (ii) at least five is on authorized leave of absence, sick leave, short or long term disability leave, military leave or layoff with recall rights who returns to active employment immediately following such absence and within six months of the Closing or such later date as required under applicable law (5) Business Days prior to “Inactive Employees”), except as set forth on Schedule 4.7 of this Agreement or Schedule 4.1 of the Local Marketing Agreement. On the Closing Date, Subsequent Closing Date or Distribution Center Closing DateBuyer shall offer employment to each employee listed on Schedule 4.1 of the Local Marketing Agreement. For the purposes hereof, as applicable; provided, that in each case, any all Station Employees who accept Buyer’s offer or transfer of employment with respect are hereinafter referred to a Business Employee is subject collectively as the “Transferred Employees,” and the “Employment Commencement Date” as referred to the condition that such Business Employee is employed by the Company or an Affiliate herein shall mean (i) as to those Transferred Employees who are listed on Schedule 4.1 of the Company on Local Marketing Agreement, the Closing Date, Subsequent Closing Date or Distribution Center Closing (ii) as to those Transferred Employees who are Active Employees and are not listed on Schedule 4.1 of the Local Marketing Agreement, the LMA Commencement Date, and (iii) as applicableto those Transferred Employees who are Inactive Employees and are not listed on Schedule 4.1 of the Local Marketing Agreement, the date on which the Transferred Employee begins employment with Buyer. Buyer shall offer employment to Active and Inactive Employees and employ at-will those Transferred Employees who do not have employment agreements with the Seller at a monetary compensation (or monetary compensation formula, including base salary, commission rate and bonus opportunity) at least as favorable as that provided by Seller immediately prior to the Employment Commencement Date. The initial terms and conditions of employment for those Transferred Employees who have employment agreements, including account executive agreements and bonus term sheets, with the Seller shall be dictated by such Business Employee shall begin on employment agreements to the first Business Day following extent such date (the “Census Start Date”)employment agreements are assignable and consent to assignment, if necessary, is obtained; provided, furtherhowever, that with respect Buyer shall not be required to provide (i) any Inactive Employeeform of equity compensation, including but not limited to, any offer of employment stock, options, warrants, phantom stock plans, or communication of transfer of employment shall be made with a commencement date of the date otherwise, or (ii) benefits under specific employee benefit plans that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does are not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required otherwise offered by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days Buyer immediately prior to the date Employment Commencement Date. For a period of this Agreement. The Employee Census 90 days from the Employment Commencement Date, Buyer shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior provide severance benefits to the Census Start Date Transferred Employees on terms consistent in all material respects with those severance benefits provided by Seller as set forth on Schedule 2.13 hereto; provided Seller shall reimburse Buyer for any Business Employee and with respect the first $200,000 in severance benefits actually paid to any Business Employee added to the Employee Census pursuant to Transferred Employees as a result of terminations during such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Date90-day period.
Appears in 1 contract
Samples: Asset Purchase Agreement (Regent Communications Inc)
Employee Matters. As of the Closing Date, the Sellers shall (ai) Purchaser Sub shall make an offer of assign the Xxxxxxx X. Xxxxxx employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser SubContract set forth on Schedule 1.1(i) and (ii) terminate all other employees at the Facilities, and Buyer shall offer to hire substantially all such employees commencing as of the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering Closing Date at compensation levels consistent with those being provided by the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days Sellers immediately prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect . Buyer shall provide a list to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and Sellers at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than least ten (10) days prior to Closing of all employees of the date of this AgreementSellers that Buyer does not intend to hire, if any. The Employee Census shall first offers of employment will be delivered subject to Purchaser Sub on reasonable and satisfactory job performance by each individual, and no such offer will alter the applicable Employee Data Trigger Date and status of any "at will" employee. Nothing herein shall be updated by the Company no earlier than three (3) weeks prior deemed to the Census Start Date for affect or limit in any Business Employee and way normal management prerogatives of Buyer with respect to employees or to create or grant to any Business Employee added such employees third party beneficiary rights or claims of any kind or nature. Within the period of ninety (90) days before the Closing, the Sellers shall not, and within the ninety (90) days following the Closing, Buyer shall not: (1) permanently or temporarily shut down a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss during any thirty (30) day period at the single site of employment for fifty (50) or more employees, excluding any part-time employees; or (2) have a mass layoff at a single site of employment of at least thirty-three percent (33%) of the active employees and at least fifty (50) employees, excluding part-time employees. The terms "single site of employment," "operating unit," "employment loss" and "mass layoff" shall be defined as in the Workers Adjustment Retraining and Notification Act (the "WARN ACT"). With respect to terminations of employees following the Closing, Buyer shall be responsible for any notification required under the WARN Act. To the extent Buyer fails to provide proper WARN Act notice (as and if required), Buyer shall be responsible for payments due affected employees under the WARN Act. In respect of the employees employed by Buyer, it shall provide such employees with employee benefits consistent with the benefits generally offered to employees of Affiliates of Buyer in the same geographic area as the Facilities and, to the Employee Census pursuant extent the Sellers have qualified retirement programs for such employees, Buyer shall recognize the existing seniority of all such employees for benefits purposes and shall provide credit under such plans for purposes of determining eligibility and vesting and the rate of benefit accrual (but not actual benefit accrual); provided, however, that no such credit need be given in respect of any new plan commenced or participated in by Buyer in which no prior service credit is given or recognized to or for other plan beneficiaries. In extending such benefits, Buyer shall waive pre-existing conditions limitations in Buyer's welfare benefit plans which might otherwise apply to such an update, Purchaser Sub shall make an offer employees except to the extent employees have not satisfied such limitations under the current welfare benefit plans of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start DateSellers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Psychiatric Solutions Inc)
Employee Matters. (a) Purchaser Sub shall make an offer As of employment or communicate to the date hereof, Section 8.1(a) of the Seller Disclosure Schedule sets forth a complete and accurate list of: (i) each Business Employee its transfer on US Seller’s US payroll (each, a “US Business Employee”), (ii) each person who would be a UK Business Employee in the event that the Closing Date took place on the date of employment to Purchaser Subthis Agreement, (iii) each person who would be a PL Business Employee in either case, in a manner reasonably determined by Purchaser Sub, the event that the Closing Date took place on the date of this Agreement and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to (iv) each Business Employee who is not (as listed A) on US Seller’s US payroll or (B) on UK Seller’s UK payroll or otherwise based in the UK or (C) on either of the PX Xxxxxxx’ PL payroll (each in this Section 8.1(a) being an employee census (the “Employee CensusOther Business Employee”)) at least five (5) Business Days prior . Prior to the Closing DateClosing, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject US Seller shall deliver to the condition that such Business Employee is employed by the Company or Buyer an Affiliate updated version to Section 8.1(a) of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, Seller Disclosure Schedule that is complete and accurate as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve Closing. Those US Business Employees and Other Business Employees (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided thatbut, for the avoidance of doubt, Parent excluding UK Business Employees, employees otherwise based in the UK, and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) Business Employees on either of the Company Disclosure SchedulesPX Xxxxxxx’ PL payroll) (who continue employment with Buyer or one of its Subsidiaries immediately following the “Census Summary”) on or prior to date of this Agreement, which Census Summary Closing Date shall be referred to herein as “Transferred Employees.” Any US Business Employee who as of a date the Closing is receiving or eligible to receive disability or is not more than ten (10) days prior working and receiving workers’ compensation benefits shall, in either case, become and remain an employee of the US Seller effective as of the Closing, and the US Seller shall assume and retain all Liabilities relating to the date of this Agreement. The such US Business Employee Census and shall first be delivered to Purchaser Sub on provide such US Business Employee with disability and workers’ compensation coverage under the applicable Seller Employee Data Trigger Date Plan and/or applicable law, as the case may be. Notwithstanding the foregoing, with the express written consent of the Buyer, any such US Business Employee may become a Transferred Employee if such employee is able to and shall be updated by does return to work for the US Acquired Company no earlier than within three (3) weeks prior months following the Closing and satisfies applicable legal requirements to work for Buyer or one of its Subsidiaries, as the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to case may be, or at such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment later date as soon as practicable thereafter but no later than the Census Start Daterequired by applicable law.
Appears in 1 contract
Samples: Contribution and Stock Purchase Agreement (Acxiom Corp)
Employee Matters. (a) Purchaser Sub shall make an The Seller has provided the Buyer reasonable access to the Business Employees for the purpose of interviewing such employees for possible employment following the Closing. The Buyer has notified the Seller (the "Proposed Employment Offer Notice") of the names of the Business Employees to be offered employment with the Buyer, and their respective salary or wage rates, bonus opportunities and benefits. The Proposed Employment Offer Notice reflects that the Buyer is to offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined ninety percent (90%) or more of the salaried Business Employees and to ninety percent (90%) or more of the hourly Business Employees. It is hereby expressly acknowledged and agreed by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering Parties that the applicable offer or communication. Such offer of employment or communication of transfer of employment Buyer shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior have no obligations whatsoever to the Closing DateSeller for any Business Employees to whom the Buyer has not extended offers of employment, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, nor for any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed actions taken by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, Seller as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive EmployeeBusiness Employees who may have claims with regard to such actions by the Seller, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work except as provided in accordance with the applicable leave policy within twelve (12Section 10.05(e) months hereof. Effective as of the Closing Date, Subsequent Closing Date the Seller shall terminate from the Business all Business Employees who are not offered employment by the Buyer. The Buyer acknowledges and agrees that in no event will the Buyer fail to offer employment at any single site to thirty-three percent (33%) or Distribution Center more of the employees or fifty (50) or more employees. Also, the Buyer acknowledges and agrees that it will offer employment, effective as of the first day following the Closing Date, to all of the Business Employees listed on the Proposed Employment Offer Notice at salary or wage rates, bonus opportunities and benefits not different than those stated for the respective Business Employee on the Proposed Employment Offer Notice. Should the Buyer fail to offer employment, effective as applicableof the first day following the Closing Date, to all of the Business Employees set forth in the Proposed Employment Offer Notice at salary or wage rates, bonus opportunities and if such Inactive benefits not different than those set forth for the respective Business Employee does not so return within twelve (12) monthsin the Proposed Employment Offer Notice, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, Parties acknowledge and agree that the Employee Census shall state each Business Employee’s nameSeller shall, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect addition to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising other rights under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days have the right to terminate this Agreement at any time prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start DateClosing.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Safety Razor Co)
Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee At least ten (as listed on an employee census (the “Employee Census”)) at least five (510) Business Days prior to the Closing Date, Subsequent Acquiror or the Post-Closing Employer, as applicable, shall make offers of employment to those Business Employees it determines in its sole discretion, whose names are set forth on Section 5.12(a) of the Acquiror Disclosure Schedules, as may be updated by Acquiror or the Post-Closing Employer, as applicable, prior to the tenth Business Day preceding the Closing Date (the “Offered Employees”), with all such offers of employment subject to the satisfaction of Acquiror’s drug testing, background check and other customary pre-employment requirements (collectively, “pre-employment requirements”). Each Offered Employee shall have at least three (3) Business Days from the receipt of such an offer to accept or reject the offer of employment, subject to the pre-employment requirements. Offered Employees who accept Acquiror’s offer of employment (and satisfy the pre-employment requirements) shall become employees of Acquiror or the Post-Closing Employer as of the Closing Date or Distribution Center such later return to active employment (with such hired Offered Employees referred to herein as the “Transferred Employees” as of the Closing DateDate or such later return to active employment and subsequent hire date). The Company and its Affiliates shall not attempt to influence any such Business Employee not to accept his or her offer of employment from Acquiror, provided that neither the Company nor any of its Affiliated will be required to tell a Business Employee that if the Business Employee does not accept his or her offer of employment from Acquiror, he or she will not continue to be employed by Parent or a Subsidiary. The Company and the Member shall permit Acquiror to meet with the Offered Employees to discuss the offers of employment prior to the Closing Date at such times and dates that are mutually agreeable to the Company and Acquiror. Nothing in this Agreement shall affect Acquiror’s or the Post-Closing Employer’s right to terminate the employment of any Transferred Employee at any time on or after the date he or she becomes a Transferred Employee, with or without cause or advance notice. Except as provided in this Section 5.12(a), it is understood and agreed that (i) Acquiror’s intention to extend offers of employment (or have the Post-Closing Employer extend offers of employment) to Offered Employees shall not constitute any commitment, contract, or understanding (expressed or implied) of any obligation on the part of Acquiror or the Post-Closing Employer, as applicable; provided, to a post-Closing employment relationship of any fixed term or duration or upon any terms or conditions other than those that Acquiror or the Post-Closing Employer may establish with particular Transferred Employees, and (ii) unless otherwise agreed upon between Acquiror or Post-Closing Employer and particular Transferred Employees, employment offered by Acquiror or the Post-Closing Employer, as applicable, shall be “at will.” Nothing in each casethis Agreement shall be deemed to prevent or restrict in any way the right of Acquiror or the Post-Closing Employer, as applicable, to terminate, reassign, promote, or demote any offer of the Transferred Employees after the Closing or transfer to change adversely or favorably the title, powers, duties, responsibilities, functions, locations, salaries, other compensation, or terms or conditions of employment with respect of such employees. At the request of Member, Acquiror or Post-Closing Employer will condition each offer of employment to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for other employee of Parent or a Subsidiary upon the employee’s waiving any right the employee might have to receive severance payments from Parent or a Subsidiary. For the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold none of Acquiror or the Post-Closing Employer or the Company harmless with respect to shall be responsible for any Losses related to a claim for compensation severance amounts paid or benefits arising under any compensation or benefit plan, agreement or arrangement maintained payable by the Company Parent or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply Affiliates in connection with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer termination of employment from the Parent or communicate a transfer any of employment as soon as practicable thereafter but no later than the Census Start Dateits Affiliates in connection with this transaction or otherwise.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sunnova Energy International Inc.)
Employee Matters. (a) Purchaser Sub On the twentieth business day preceding the scheduled Closing Date, the Company shall make provide to Buyer a revised version of Section 3.17(a) of the Disclosure Schedule, updated to reflect all changes in such section that have occurred prior to such day. No later than the fourteenth business day preceding the scheduled Closing Date but effective as of the Closing Date and contingent on the Closing, Buyer shall offer employment to all of the Employees listed on the revised Section 3.17(a) of the Disclosure Schedule. The Company shall use its commercially reasonable efforts to (i) provide Buyer with access to such Employees and (ii) assist Buyer in extending offers of employment to such Employees. Buyer shall offer such employment on an “at-will” basis and at a wage and salary level (excluding performance-based or incentive compensation, bonuses and equity-based compensation, as applicable) that is the same as that provided to the applicable Employee on the day preceding the Closing Date, and Buyer and the Company shall reasonably cooperate with one another on the content of the offer letters and other employee communications. Each such offer that is made to an Employee who is actively employed in the Business on the day immediately preceding the Closing Date shall be an offer to commence employment on the Closing Date, effective and contingent upon the Closing. Each such offer that is made to an Employee who is not actively at work with the Company or any of its Subsidiaries due to a short-term disability leave or other short-term leave of absence (but not including vacation), will be deemed to be an offer of employment or communicate with Buyer effective as of the date such Employee is willing and able to each Business Employee its transfer return to active work status (the “Start Date”). Buyer shall not be required to extend an offer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the any Employee who is on long-term disability leave or other long-term leave of absence. The Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, promptly notify Buyer if any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is Employees employed by the Company or an Affiliate any of its Subsidiaries either (i) commences a short- or long-term disability leave or other leave of absence (but not including vacation) during the Company period of time commencing with the Agreement Date and ending on the Closing Date, Subsequent or (ii) returns to active employment from any such leave from the Agreement Date to the Closing Date. Each Employee to whom an offer of employment is made pursuant to this Section 6.1(a) and who accepts such offer and commences such employment with Buyer as of the Closing Date or Distribution Center Closing Start Date, as applicable, shall be referred to as a “Retained Employee” and employment collectively as the “Retained Employees.” Buyer shall have no obligations to any Employee who does not accept the offer and become a Retained Employee, the obligations for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment Employees shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate sole responsibility of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Macrovision Solutions CORP)
Employee Matters. (a) Purchaser Sub Immediately prior to the Closing Date, Seller or its Affiliate, as applicable, shall make an offer transfer the employment of employment or communicate to each active Union Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communicationEntity. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at At least five (5) 10 Business Days prior to the Closing Date, Subsequent Closing Date the Buyer shall, or Distribution Center Closing Dateshall cause any applicable Affiliates or designated third-party operators to, as applicable; provided, that in each case, any offer or transfer make offers of employment with respect to a each Non-Union Business Employee who is subject to the condition that such Business Employee is employed by the Company not on disability or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable workers’ compensation leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, which offers shall comply with the requirements set forth in this Section 6.15 and will be effective as applicableof, and if such Inactive Employee does not so return within twelve (12) monthscontingent upon, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligibleClosing. Each such offer of employment or transfer of employment shall be for a substantially position having a comparable position held by title and comparable duties as provided to the applicable offered Non-Union Business Employee as of immediately prior to Closing. With respect to any Business Employee who is on an approved disability or workers’ compensation leave as of the Closing Date (an “Inactive Employee”) and who returns to active employment within six (6) months following the Closing Date, the Buyer (or its applicable Affiliate or designated third-party operator) shall make an offer of employment consistent with the terms of this Section 6.15 upon such Business Employee (subject Employee’s return to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such active employment. The Union Business Employee worked while Employees who are employed with the by a Company or an Affiliate Entity as of the Company. Notwithstanding Closing and the foregoingNon-Union Business Employees who accept the terms and conditions of such offers and who actually become employed by the Buyer, Parent and Purchaser Sub shall indemnify and hold any of its Affiliates or any designated third-party operators are hereinafter referred to as the Company harmless “Continuing Employees.” Effective as of the Closing Date (or with respect to Inactive Employees the date on which such individual becomes a Continuing Employee), the employment of the Continuing Employees with Seller or its Affiliates shall terminate. The Seller and its Affiliates shall release each Continuing Employee from any Losses non-competition, non-solicitation, non-disclosure, non-interference, non-disparagement, or other restrictive covenant agreement or obligation (each, a “Restrictive Covenant Obligation”), solely as it applies to the Buyer and solely with respect to matters relating to the Company Entities or the sale of the Company Entities, that may interfere with such Continuing Employee’s prospective or actual employment with the Buyer, its Affiliates or a designated third-party operator. Further, the Seller and its Affiliates shall provide reasonable assistance and cooperation, and use commercially reasonably efforts upon Buyer’s reasonable request (at Buyer’s sole cost and expense) to take action necessary to enforce any Restrictive Covenant Obligations related to the Business entered into between the Seller or its Affiliates and any claim or threatened claim by or Continuing Employee on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided thatBuyer (including, for the avoidance of doubt, Parent seeking remedies on behalf of Buyer thereunder related to any breach before, on or after the Closing), including making relevant personnel reasonably available to cooperate with any litigation related to any enforcement action. For the avoidance of doubt, any money damages recovered shall be remitted to Buyer. From and Purchaser Sub after the Closing, the Seller and its Affiliates shall not indemnify and hold promptly notify the Buyer in the event that it becomes aware of any breach of any Restrictive Covenant Obligations related to or otherwise affecting the Business by any Person, who at any time provided services to Company harmless Entities with respect to the Business, whether or not such Person is a Continuing Employee. In the event of a breach by any Losses such Persons (whether identified by the Buyer or the Seller), the Seller and its Affiliates shall (i) provide reasonable assistance and cooperation, and use commercially reasonable efforts, upon Buyer’s reasonable request (at Buyer’s sole cost and expense) in connection with the enforcement of such Restrictive Covenant Obligations of any current or former employees of Seller or its Affiliates as such obligations relate to the Business and (ii) make relevant personnel reasonably available to cooperate with any litigation related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Dateenforcement action.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Clearway Energy, Inc.)
Employee Matters. (a) Purchaser Sub shall make an A. Buyer will offer to employ all of employment or communicate to each Business Employee its transfer the Branch Employees effective as of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer . Buyer will communicate offers of employment in accordance with respect any applicable legal requirements and in a form mutually acceptable to Seller and Buyer. All such Branch Employees shall be offered employment with Buyer in all cases (i) in a Business Employee is subject to the condition that position requiring comparable skills and abilities as such Business Employee is employed by the Company or an Affiliate of the Company Branch Employee’s position with Seller on the Closing Date, Subsequent Closing Date (ii) with annual base salary, or Distribution Center Closing Date, as applicable, and employment for weekly or hourly rate of pay which is equal to such Business Employee shall begin Branch Employee’s pay with Seller on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(siii) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date work location not more than ten (10) days miles from such Branch Employee’s work location with Seller on the Closing Date, and (iv) with a work schedule that is no more than a two-hour adjustment to the starting or ending time, and with the same regular scheduled work days, of the Branch Employee’s position with Seller on the Closing Date (a “Comparable Job Offer”). Each Branch Employee who accepts Buyer’s offer of employment and commences employment with Buyer hereunder shall become a “Transferred Employee” on the Closing Date. Years of service of each of the Transferred Employees with Seller, and any predecessors, prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and Effective Time shall be updated by the Company no earlier than three credited for purposes of (3i) weeks prior to the Census Start Date eligibility under Buyer’s employee welfare benefit plans, and (ii) eligibility and vesting, but not for any Business Employee purposes of benefit accrual or contributions, under all other employee benefit plans of Buyer, including, without limitation, all pension, retirement, profit sharing, 401(k) and with employee stock ownership plans. With respect to any Business Branch Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make who accepts an offer of employment from Buyer who on the Closing Date is on military leave, medical leave, short-term disability or communicate other leave of absence in accordance with applicable law and approved by Seller (but excluding any Branch Employee absent by reason of long-term disability, for whom Seller will retain all liability), except as required by applicable law, Buyer need only employ such Branch Employee for the period beginning after such absence if such Branch Employee returns to employment in accordance with the terms of such Branch Employee’s leave. Any such Branch Employee will cease employment with Seller at the end of such leave of absence. Nothing in this Agreement shall be construed as an employment contract between Buyer and any Transferred Employee. Buyer shall not have any responsibilities or rights regarding any Branch Employee terminated prior to the Closing Date or any Branch Employee who has received a transfer Comparable Job Offer from Buyer but who chooses not to become an employee of employment as soon as practicable thereafter but no later than the Census Start DateBuyer.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Community First Inc)
Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment Seller shall be provided responsible for all wages, bonuses, commissions, vacations, accrued vacation time, accrued sick leave, medical, fringe and/or profit sharing benefits or contributions that are earned, accrued or may accrue or COBRA continuation health coverage as to each Business any current or former Employees, the withholdings, workers' compensation, payroll deductions, benefits and claims of its Staff Employees and Temporary Employees through the Effective Date. Any claim or cost associated with or arising from any claim of any of Seller's Staff Employees or Temporary Employees, from Seller's termination of any Staff Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days or Temporary Employee, any grievance or claim of any nature arising out of any labor agreements or other employment relationship between Seller and its Staff Employees or Temporary Employees, any claim for unemployment compensation, or any claim arising out of Seller's or Selling Shareholder's activities prior to the Closing Effective Date shall be the responsibility of Seller and/or Selling Shareholder, as the case may be. Buyer shall have no obligation to employ any Staff Employee or Temporary Employee of Seller, but Buyer may interview Seller's current Staff Employees or Temporary Employees and consider employing them. The parties agree that Buyer shall not be deemed to be the employer for any Staff Employee or Temporary Employee claims or actions that arose or accrued while employed by Seller or Selling Shareholder whether or not later hired by Buyer. Seller shall, within 30 days of the Effective Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect calculate the bonuses and commissions due to a Business Employee is subject its Staff Employees for all periods prior to the condition that Effective Date and provide funds to Buyer to allow Buyer to make such Business Employee is employed by the Company or an Affiliate of the Company payment on the Closing Date, Subsequent Closing Seller's behalf to such Staff Employees. Seller and Selling Shareholders shall be liable for all such obligations and if a dispute should arise relating to such Pre-effective Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Datecompensation, Subsequent Closing Date or Distribution Center Closing Date, as applicable, Seller and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub Selling Shareholders shall indemnify and defend Buyer and hold the Company Buyer harmless with respect from any and all liability relating thereto, including any attorneys fees and costs incurred by Buyer relating to any Losses related to any claim such claims or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Datedisputes.
Appears in 1 contract
Samples: Asset Purchase Agreement (Barrett Business Services Inc)
Employee Matters. (a) Purchaser Sub shall make an offer EiC acknowledges that Buyer may interview any of employment or communicate the Employees set forth on Schedule 3.11 to each Business Employee this Agreement beginning the day after the execution of this Agreement by the parties and determine in its transfer of employment sole discretion which Employees it desires to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to hire after the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee . Buyer shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more notify Seller no later than ten (10) days after the execution of this Agreement by the parties which Employees it desires to hire (the “Desired Employees”). All Employees of EiC prior to the date Closing Date hired by Buyer after the Closing Date shall enter into Buyer’s standard confidentiality, non-compete and inventions agreement in substantially the form attached hereto as Exhibit 3.11. Nothing in this Agreement shall be construed as a commitment or obligation of this AgreementBuyer to offer employment, or otherwise continue the employment of, any of the Employees. The Employee Census EiC shall first be delivered pay all wages, salaries, commissions, the cost of all fringe benefits, and any and all other payments provided to Purchaser Sub Employees which shall have become due for work performed as of and through the day on the applicable Employee Data Trigger Date which such Employee’s employment with EiC is terminated, and EiC shall collect and pay all Taxes in respect of such wages, salaries, commissions, payments and benefits. EiC acknowledges and agrees that Buyer is not assuming and shall not have any obligations or liabilities under any benefit program maintained by, or for the benefit of any Employee, including without limitation obligations for severance or sick days, personal days or vacation accrued but not taken as of the Closing Date. EiC shall pay and be updated by the Company no earlier than three (3) weeks prior to the Census Start Date liable for any Business Employee obligations or liabilities that may arise from the termination as of or after the Closing of any Employee’s employment with EiC, including, without limitation, in connection with the “employment loss” of any such individual under the Worker Adjustment and with respect Retraining Act of 1986 or any similar state, local or foreign law or regulation. EiC shall provide all statutory notices relating to any Business Employee added to such termination, including, without limitation, those required under the Employee Census pursuant to such an updateWorker Adjustment and Retraining Act of 1986 or any similar state, Purchaser Sub shall make an offer of employment local or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Dateforeign law or regulation.
Appears in 1 contract
Employee Matters. (a) Purchaser Sub shall make an offer Within a reasonable period of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days time prior to the Closing DateClosing, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate Seller shall update Section 15(o)(ii) of the Company on Seller Disclosure Letter to reflect (i) the Closing Date, Subsequent Closing Date addition of any additional employees of Seller or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classificationif any, salary who provide services principally in or pay ratein support of the Business (each, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such “Additional Business Employee is in Inactive Employee statusEmployee”) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to ii) the requirements removal of any applicable collective bargaining agreement), and at the same location(s) at which such employees listed as Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or Employees on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a15(o)(ii) of the Company Seller Disclosure Schedules) (Letter as of the “Census Summary”) on or prior to date of this Agreement, which Census Summary if any, with respect to whom employment shall not transfer in the Transaction with an OpCo Acquired Entity (each, an “Excluded Business Employee”). Prior to the Closing, Seller and its Affiliates shall (A) subject to the following proviso, transfer to an OpCo Acquired Company or Subsidiary thereof the employment of any Business Employee who as of the date hereof is not employed by a Specified Entity, and (B) transfer to the Seller or any of its Affiliates (other than any Specified Entity) the employment of each Excluded Business Employee; provided that the transfer of Additional Business Employees and the exclusion of Excluded Business Employees shall be, in each case, subject to the consent of OpCo Purchaser (or its designee) in its reasonable discretion following good faith discussions between Seller and OpCo Purchaser. Following any such update to Section 15(o)(ii) of the Seller Disclosure Letter, each Additional Business Employee shall be as of a date not more than ten (10) days Business Employee for all purposes hereunder, and each Excluded Business Employee shall no longer be a Business Employee for any purpose hereunder. At Closing, the OpCo Acquired Companies will continue to employ each Business Employee who is employed by an OpCo Acquired Company immediately prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three Closing (3) weeks prior to the Census Start Date for any each such Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an updateEmployee, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Date“Continuing Employee”).
Appears in 1 contract
Employee Matters. (ai) Continuation of Employment. Purchaser Sub shall make an offer employment to (or -------------------------- cause a Sold Subsidiary to continue to employ) each employee of the Business (including any individual whose principal place of employment or communicate to each is on the Premises, who primarily renders services on behalf of the Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee whose compensation cost is subject to the condition that such Business Employee is employed borne primarily by the Company Business) and each STC Employee who is actively at work, on vacation or an Affiliate of the Company on short-term disability (including salary continuation and extension) leave on the Closing Date, Subsequent Date (each a "Business Employee"). Each employee or former ----------------- employee who primarily rendered services on behalf of the Business or STC Employee and who is not actively at work on the Closing Date due to leave of absence, long-term disability leave, military leave or Distribution Center Closing Date, as applicablelayoff, and employment for such Business Employee shall begin who in the case of an employee on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee long-term disability was last actively returns to work in accordance with the applicable leave policy employed within twelve (12) months two years of the Closing Date, Subsequent and in the case of an employee on a leave of absence or layoff was last employed within five years of the Closing Date and in each case has recall rights ("Recall ------ Rights") under the work rules of the Business, a collective bargaining ------ agreement or Distribution Center Closing Dateapplicable law (collectively, as applicable"Inactive Employees"), shall be ------------------ offered active employment by Purchaser pursuant to the Recall Rights. Upon such offer and if acceptance and commencement of active employment, each such Inactive Employee does not so shall be considered a Business Employee effective as of the first date of return within twelve (12) months, then the offer or communication to work. CBS shall deliver a schedule to Purchaser of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each anticipated Business Employee’s name, title, current service credit with the Company Employees and its Affiliates, classification, salary or pay rate, short-term Inactive Employees and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate latter their designated status as of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Closing Date and their entitlements, 15 days before the Closing Date. Such schedule shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment CBS as soon as practicable thereafter practical after the Closing Date. Any employee of Sellers or their Affiliates who is not otherwise a Business Employee but no later who is offered and accepts employment by Purchaser, pursuant to mutual agreement with the Sellers, during the six months following the Closing Date shall be deemed to be a Business Employee as of the date of actual employment with the Purchaser. Purchaser shall not offer employment to any employee of any Seller during such six-month period without the consent of such Seller (other than the Census Start Dateas provided herein).
Appears in 1 contract
Employee Matters. (a) On the Closing Date, Seller shall terminate the employment of those employees being hired as of the Closing Date by Purchaser. Seller acknowledges that Purchaser Sub shall make an is not obligated to offer of employment or communicate to each Business Employee its transfer of employment to any of Seller’s employees and that, at Purchaser’s sole discretion, Purchaser Submay offer employment, in either caseon an “at-will” basis, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communicationany such employees. Such offer of employment or communication of transfer All terms of employment shall be provided at the discretion of Purchaser and all benefits and terms are subject to each Business Employee change as determined by Purchaser in its sole and absolute discretion 22 (as listed on an b) Seller acknowledges and agrees with Purchaser that Seller shall be solely responsible, and Purchaser shall have no obligations whatsoever, for all compensation, employee census benefits or other amounts payable to any current and former employees, officers, directors, managers, members or independent contractors of Seller, including, but not limited to, hourly pay, salary, commission, bonus, vacation pay, sick leave, COBRA (defined below) benefits, termination and severance payments, and fringe benefits owed to any employee of Seller for any period relating to the “Employee Census”)) service of such employee with Seller at least five (5) Business Days any time prior to the Closing Date, Subsequent Closing Date and Seller shall pay all such amounts to entitled persons on or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect prior to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date. [At the Closing, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months Seller’s policy, Seller shall pay each employee terminated as required under this Agreement and hired by Purchaser all vacation earned and accrued but not taken as of the Closing Date, Subsequent Closing Date or Distribution Center in accordance with Seller’s employment policies regarding the same (which includes rights to take vacation that are vested due to prior year’s service as well as a pro rata amount of vacation earned in the current year), including Seller’s share of Social Security/Medicare taxes and unemployment taxes relating thereto. In addition, Seller will pay to such employees (a) the amount of any earned but unpaid bonuses for the current fiscal year, prorated as of the Closing Date, as applicablewhich are due and payable to Seller’s employees hired by Purchaser after the Closing, in accordance with Seller’s policies with respect thereto, and if such Inactive Employee does not so return within twelve (12b) monthsthe amount of any commissions which will be due and payable to any Seller’s employees hired by Purchaser after the Closing for business obtained prior to the Closing Date, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employeein accordance with Seller’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status policies with respect to whether he or she is currently an Inactive Employee (and thereto. For the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date purposes of this Agreement, “COBRA” shall mean health insurance continuation coverage as required by Section 4980B of the Code and Sections 601 through 609 of ERISA or as required by any applicable state law. (c) Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of current or former employees, officers, directors, managers, members or independent contractors of Seller (and the spouses, dependents or beneficiaries thereof), which Census Summary shall be as of a date not more than ten (10) days claims relate to events occurring prior to the date Closing. Seller also shall remain solely responsible for all workers’ compensation claims of this Agreementany current or former employees, directors, members or independent contractors of Seller which relate to events occurring prior to Closing. The Employee Census (d) Concurrent with Closing, Seller shall first permanently remove, or cause to be delivered to Purchaser Sub permanently removed, all data, files and records constituting Purchased Assets that are stored on the applicable Employee Data Trigger Date personal computer or laptop owned by each employee of Seller and shall move, or cause to be updated by the Company no earlier than three (3) weeks prior moved, all of such data, files and records to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Datemutually agreed file storage location. 6.3.
Appears in 1 contract
Samples: Asset Purchase Agreement
Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee No later than ten (as listed on an employee census (the “Employee Census”)) at least five (510) Business Days prior to the Closing Date, Subsequent Closing Date Parent will provide the Company a complete list of employees that Parent will be (i) offering continuing employment with Parent or Distribution Center its Subsidiaries, (ii) offering transitional employment with Parent or its Subsidiaries until the end of a specified transition date or (iii) informing that their employment will terminate on the Closing Date. As of the Effective Time, the Surviving Corporation shall, or shall cause one of its Subsidiaries to, employ each employee of the Company and its Subsidiaries who continues to be employed by the Surviving Corporation or its Subsidiaries as of the Effective Time (each employee, a “Continuing Employee”) and to provide to each such Continuing Employee the base salary or wages and annual target cash bonus opportunity or semi-annual cash bonus opportunity, as applicable; provided, that in effect as of immediately prior to the Effective Time. From and after the Effective Time, the Surviving Corporation shall honor all Company Benefit Plans and all plans, programs, practices, policies, arrangements and agreements referenced on Schedule 3.2(c) of the Company Disclosure Letter, in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, their terms as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject effect immediately prior to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the CompanyEffective Time. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold nothing herein shall, after the Company harmless with respect to Effective Time, prohibit the Surviving Corporation or any Losses related to any claim of its Subsidiaries from amending or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire terminating any such Excluded Employee Company Benefit Plan, or compensation arrangement or agreement in accordance with its terms or impose on the Surviving Corporation or any claim of its Subsidiaries any obligation to retain any employee for Excluded any amount of time. During the period commencing as of the Effective Time and ending on the first anniversary of the Closing (such period, the “Continuation Period”), the Surviving Corporation shall, and shall cause one of its Subsidiaries to, provide each Continuing Employee Severance; provided thatwith, for during the avoidance of doubtContinuation Period, Parent and Purchaser Sub shall not indemnify and hold severance payments, rights and/or benefits that are no less favorable than the severance payments, rights and/or benefits under the applicable Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(aBenefit Plans set forth on Schedule 6.9(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start DateLetter.
Appears in 1 contract
Employee Matters. (a) Purchaser Sub shall make an offer of employment The parties hereto acknowledge that, concurrently herewith, REIT Manager and the REIT are entering into the Employee Leasing Agreement, pursuant to which (i) REIT Manager will lease the Business Employees to the REIT during the period commencing on the Effective Date and ending on June 30, 2019 or communicate to each Business such other date as may be mutually agreed by REIT Manager and the REIT (the "Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser SubLeasing Period"), and (ii) the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment REIT shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment reimburse REIT Manager for certain costs incurred by REIT Manager with respect to a Business Employee is subject to the condition that such Business Employees during the Employee is employed by Leasing Period, as set forth in the Company or an Affiliate of Employee Leasing Agreement. As soon as practicable following the Company on the Closing Effective Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work but in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more no event later than ten (10) days prior to the end of the Employee Leasing Period, the REIT shall make or cause one of its Subsidiaries to make, offers of employment to all Business Employees then employed by REIT Manager (including any such employees who are not actively-at-work) to be effective as of 12:01 a.m. on July 1, 2019 or such other date as may be mutually agreed by REIT Manager and the REIT (in any case, the "Hire Date"). Each offer of employment by the REIT or a Subsidiary thereof pursuant to this Agreement. The Employee Census Section 4.06(a) shall first be delivered in writing, shall be on an at-will basis (except to Purchaser Sub on the applicable Employee Data Trigger Date extent provided in an Employment Agreement or unless otherwise determined by the REIT in its sole discretion) and shall be updated by include (i) an employment position and responsibilities that are substantially the Company no earlier same as or greater than three (3) weeks such Business Employee's position and responsibilities as of immediately prior to the Census Start Date for any Hire Date, (ii) an annual base salary or hourly wage rate, as applicable, that is no less than the annual base salary or hourly wage rate, as applicable, provided to such Business Employee as set forth in the Employee Roll, (iii) a target annual bonus opportunity that is no less than the annual bonus paid to such Business Employee as set forth in the Employee Roll, and (iv) employee benefits (including health, welfare and retirement benefits) that are substantially similar, in the aggregate, to those provided to such Business Employee as set forth in the Employee Roll. Each Business Employee who accepts employment with the REIT or a Subsidiary thereof and commences employment with the REIT or a Subsidiary thereof on or after the Hire Date shall hereinafter be referred to as a "Transferred Employee". The REIT and REIT Manager intend that the transactions contemplated by this Agreement shall not result in a severance of employment of any Transferred Employee with respect to entitlement to severance benefits for purposes of any Business Employee added employee benefit plan, policy or agreement, and that the Transferred Employees shall have continuous and uninterrupted employment immediately before and immediately after the Closing, and the REIT and REIT Manager shall reasonably cooperate to ensure the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Datesame.
Appears in 1 contract
Employee Matters. (a) Purchaser Sub shall make an offer (i) From and after the date that there has been a public announcement of employment or communicate to each Business Employee its transfer of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Subthis Agreement, and the Company shallsubject to Applicable Laws, Seller shall provide Purchaser with reasonable access, upon requestreasonable prior notice and during normal business hours, use commercially reasonable efforts to assist Purchaser Sub in preparing the employees of Seller and delivering the applicable offer or communication. Such offer properties and personnel records (including performance appraisals, disciplinary actions, grievances and medical records) of employment or communication the Business Effective as of transfer of employment shall be provided to each Business Employee (as listed 11:59 p.m., New York City time, on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date Purchaser shall, or Distribution Center Closing Dateshall cause its affiliates to, as applicable; provided, that in each case, any offer or transfer make offers of employment to each employee of Seller who provides services primarily with respect to the Business (each such employee, a “Business Employee is subject to Employee”), other than those individuals identified on Section 5.07(a)(i) of the condition Seller Disclosure Letter, provided that such Business Employee is actively employed by Seller in the Company or an Affiliate conduct of the Company on Business as of the Closing. Purchaser shall, or shall cause its affiliates to, offer employment to each Business Employee who is not actively employed in the conduct of the Business as of the Closing DateDate due to approved leave of absence, Subsequent Closing Date vacation or Distribution Center Closing Dateabsence due to short-term disability, as applicable, and employment for provided that such Business Employee presents himself or herself for active employment with Purchaser and its affiliates in the conduct of the Business, and provided further that, except as may otherwise be required under Applicable Laws, Purchaser shall begin on the first Business Day following such date (the “Census Start Date”); providednot be required to, furtherand shall not be required to cause its affiliates to, that with respect offer employment to any Inactive Employee, any such Business Employee who does not present himself or herself for active employment prior to the sixth month anniversary of the Closing. The Business Employees who accept such offer of employment and transfer to Purchaser or communication its affiliates (such employees, the “Transferred Employees”) shall commence employment with Purchaser or one of transfer its affiliates (i) in the case of employment shall be made with a commencement date Transferred Employees actively employed in the conduct of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months Business as of the Closing Date, Subsequent as of 11:59 p.m., New York City time, on the Closing Date and (ii) in the case of any Transferred Employee who is not actively employed in the conduct of the Business as of the Closing Date due to approved leave of absence, approved leave for short-term disability or Distribution Center approved vacation, the date that such Business Employee commences active employment with Purchaser or its affiliates (such time with respect to each Business Employee, the “Transfer Time”). Purchaser’s or its affiliates’ offers of employment to each Business Employee shall provide, in each case for a period of at least twelve months following the Closing Date, as applicable(i) the same level of base salary provided to such employee immediately prior to the Transfer Time and (ii) other employee benefits (not including equity-based compensation) substantially similar in the aggregate to those provided by Purchaser to its similarly situated employees in the same or similar geographic areas; provided that notwithstanding anything herein to the contrary, and if such Inactive neither Purchaser nor its affiliates shall be required to provide any Transferred Employee does not so return with employee benefits that are considered by Purchaser to be grandfathered benefits under benefit plans, policies, programs or agreements sponsored, maintained or entered into by Purchaser or its affiliates. Purchaser shall, or shall cause its affiliates to, provide severance benefits to any Transferred Employee whose employment is terminated within twelve (12) months, then months after the offer or communication of transfer shall expire or become invalid, Closing Date in an amount no less favorable than would have been provided to such Transferred Employee under Seller’s severance plan covering such employees as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject effect immediately prior to the requirements of any applicable collective bargaining agreement), and at Transfer Time to the same location(s) at which extent such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and severance plan was provided by Seller to Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer Table of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Date.Contents
Appears in 1 contract
Employee Matters. (a) Purchaser Sub No later than eighteen (18) Business Days after the execution of the Original Merger Agreement, Parent shall make an offer offers of employment or communicate to each Business Employee its transfer of employment to Purchaser Subcommencing on the Closing Date or following an interim consulting arrangement provided in the Transition Services Agreement (which offers, in either each case, in a manner reasonably determined by Purchaser Sub, and shall be contingent on the Company shall, upon request, use commercially reasonable efforts occurrence of the Closing). Sufficient number of offers will be made to assist Purchaser Sub in preparing and delivering Business Employees to avoid triggering the applicable offer or communicationWARN Act. Such offer of employment or communication of transfer of employment offers shall be provided to provide each Business Employee initially with (i) subject to relocations contemplated by the Transition Services Agreement, the same general location of employment as listed or immediately prior to the Closing (which, in any event, shall not be more than 50 miles from such Business Employee's location of employment as of immediately prior to the Closing); (ii) substantially the same responsibilities as such Business Employee's responsibilities as of immediately prior to the Closing; (iii) a base salary or hourly wage rate, as applicable, that is at least equal to that provided to such Business Employee as of immediately prior to the Closing; and (iv) non-equity-based incentive compensation opportunities and other employee benefits (including health, welfare and retirement benefits but excluding any equity-based compensation, defined benefit pension benefits and nonqualified retirement benefits) that are substantially comparable in the aggregate to those provided to the Business Employees as of immediately prior to the Closing. Indigo will reasonably cooperate with Parent and provide Parent with such information as Parent may reasonably request to comply with this Section 6.04(a). Each Business Employee who accepts such offer prior to the Closing Date and who commences employment with Parent on an the Closing Date or, with respect to a Business Employee who, as of the Closing Date, is on a leave of absence approved by Indigo or the Company, on the date such leave ends if such Business Employee on leave is able to and does return to work immediately thereafter, provided that such leave ends no later than six (6) months, or, in the case of a leave whereby the Business Employee is entitled under Applicable Law to return later than six (6) months, twelve (12) months following the Closing Date, shall be referred to herein as a “Transferred Employee.” Indigo shall use reasonable best efforts to deliver to Parent the employee census (data set forth on Section 6.04(a) of the “Employee Census”)) at least Disclosure Schedule no later than five (5) Business Days prior to following the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Original Merger Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Date.
Appears in 1 contract
Employee Matters. (a) Purchaser Sub Except as provided in Section 5.3(a) of the Company Disclosure Schedule, until the first anniversary of the Effective Time (the "Benefits Continuation Period"), the Surviving Corporation shall make an offer of employment pay or communicate cause to be paid to each Business Employee its transfer employee who continues as an employee of employment to Purchaser Subthe Company, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering Subsidiaries or the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census Surviving Corporation during the Benefits Continuation Period (the “Employee Census”)"Continuing Employees") salary, wages, cash incentive opportunities, severance, medical benefits and other welfare benefit plans programs and arrangements (with the exception of any equity compensation programs or defined benefit plans) which are at least five (5) Business Days comparable in the aggregate to those provided prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicableunder the Plans; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (Continuing Employees who are subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed employment agreements that have not been superseded by agreements with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with are listed in Section 6.14(a3.9(a)(x) of the Company Disclosure Schedules) Schedule (the “Census Summary”"Employment Agreements"), the Surviving Corporation shall expressly assume such Employment Agreements, and fulfill all obligations thereunder. During the Benefits Continuation Period, the Surviving Corporation shall pay, subject to such terms and conditions as it shall establish and the terms of applicable Employment Agreements, any such Continuing Employee whose employment is involuntarily terminated by the Parent, the Surviving Corporation or any of their Subsidiaries without cause an amount of severance pay in cash equal to the amount of cash severance pay that would have been payable to such Continuing Employee under the terms of the severance policy listed in Schedule 3.14(a) on or prior of the Company Disclosure Schedule and applicable to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days such Continuing Employee immediately prior to the date of this Agreement or, if applicable, such Continuing Employee's Employment Agreement. The Employee Census foregoing provisions of this Section 5.3 shall first not be delivered construed or interpreted to Purchaser Sub on restrict in any way the applicable Employee Data Trigger Date and shall be updated by Surviving Corporation's or Parent's ability to amend, modify or terminate any Plan or policy (including, without limitation, to change the Company no earlier than three (3entities who administer such Plans or policies, or the manner in which such Plans or policies are administered) weeks prior to the Census Start Date extent not inconsistent with such foregoing restrictions or any other plan made available to the Continuing Employees or, subject to the terms of applicable Employment Agreements, to terminate any person's employment at any time or for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Datereason.
Appears in 1 contract
Employee Matters. Before the Closing, Seller (ai) Purchaser Sub shall make an offer prepare a list of employment or communicate the names of all persons on the payroll of Seller and the amounts to each Business Employee its transfer of employment be due on the Closing Date as are required to Purchaser Subbe paid to satisfy all compensation obligations to such employees, in either case, in a manner reasonably determined by Purchaser Subindependent contractor, and consultants as of the Company shallClosing Date; and (ii) will not, upon requestwithout Buyer’s prior written consent, use commercially reasonable efforts enter into any agreement with its employees, independent contractor, or consultants, increase the rate of compensation or bonus payable to assist Purchaser Sub or to become payable to any employee independent contractor, or consultant, or effect any changes in preparing and delivering the applicable offer management, personnel policies, or communicationemployee benefits, except in accordance with existing employment practices. Such offer As of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date Seller shall (y) terminate all of its employees, independent contractors, and consultants; and (z) be solely responsible for and shall pay when due in accordance with past business practices consistent with all applicable laws, rules and regulations promulgated by any governmental authority, to each person previously or Distribution Center currently employed by Seller (including all employees that have been or will be terminated by Seller) all wages, compensation, bonuses, deferred compensation, overtime, profit sharing benefits, workers’ compensation, sick pay, vacation, personal days and severance pay benefits accrued through and including the Closing Date, as applicable; provided, that in each case, any . It is Buyer’s intention to offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company hire on the Closing Date, Subsequent Closing Date or Distribution Center Closing Datesubject to Buyer’s standard screening process, as applicablea substantial portion of the current active employees of Seller, except those employees on lay-off, leave of absence, long-term disability, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibilitydisability, status with respect to whether he who shall remain the responsibility of Seller. Buyer is making no representation or she warranty that Buyer will hire any employee, independent contractor or consultant of Seller. No such responsibility or obligation shall constitute an Assumed Liability in any way whatsoever. Any employee independent contractor or consultant whose compensation is currently an Inactive Employee (and based upon commissions earned through the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment Closing Date shall be for a substantially comparable position held by paid such Business Employee (subject to commissions following the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Closing Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as is reasonably practicable thereafter but no later than following the Census Start Datecalculation of such amounts. Seller shall retain all liabilities under any employee plans/agreements. Buyer is not assuming, and shall not have any responsibility whatsoever for the continuation of, or any liability under or in connection with any employee plans/agreements.
Appears in 1 contract
Employee Matters. (a) Purchaser Sub shall make an offer of employment or communicate to each Business Employee its transfer of employment to Purchaser SubAs soon as reasonably practicable, but in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee any event no later than ten (as listed on an employee census (the “Employee Census”)) at least five (510) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center (to be effective as of the Closing Date), as applicable; provided, that in Buyer shall offer employment to each case, any offer or transfer of employment with respect to a Business Employee who is subject to the condition that such Business Employee is listed on Schedule 6.7(a) and actively employed by the Company or an Affiliate of the Company on Seller immediately prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicablein each case at an annual base compensation, and employment an opportunity for cash incentive compensation (excluding, for clarity, equity and other non-cash compensation) not less than that which is in effect for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer and with substantially the same responsibilities and duties, in each case immediately prior to the Closing Date. For purposes of employment or communication of transfer of employment shall this Section 6.7(a), a Business Employee will be made with a commencement date treated as “actively employed” if as of the date that Closing Date such employee person is actively returns at work, or on vacation, holiday, jury duty, sick leave (not including short-term or long-term disability) or bereavement leave. The Business Employees to work whom offers are made in accordance with the applicable leave policy within twelve (12) months preceding sentence and who begin work with Buyer immediately after the Closing Date are referred to herein as “Buyer Employees”. Seller shall terminate the employment of each Buyer Employee immediately prior to the Closing. Nothing in this Agreement shall create any obligation on the part of Buyer to continue to employ any Buyer Employee for any period following the Closing Date. As of the Closing Date, Subsequent Closing Date or Distribution Center Closing DateBuyer shall, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he its vacation, 401(k) plan and other employee benefit plans, policies, programs or she is currently an Inactive Employee arrangements that contain a service-credit component and that are maintained by Buyer after the Closing Date (and solely to the reason extent applicable to such Business Employee is in Inactive Employee status) and Buyer Employee), credit each Employee Plan Buyer Employee, for which the purposes of eligibility or vesting but not for purposes of benefit accrual, with the applicable service credited for such Business Employee is then eligible. Each offer Buyer Employee’s duration of employment by Seller or transfer of employment shall be for a substantially comparable position held by such Business Employee its Affiliates (subject to the requirements of or any applicable collective bargaining agreementpredecessor thereto), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub for purposes of determining accrued vacation, each Buyer Employee shall indemnify and hold the Company harmless be credited with respect such amount of services as shall be necessary to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any entitle such Excluded Buyer Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit planminimum of *** vacation days per calendar year, agreement or arrangement maintained by subject to, in the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) case of the Company Disclosure Schedules) (current calendar year, any vacation days used by such Buyer Employee in the “Census Summary”) current calendar year prior to the Closing. In addition, on or prior promptly following the Closing Date, Buyer shall pay to date of this Agreementeach Buyer Employee a “signing bonus” in an amount specified by Seller in writing, which Census Summary shall be as of a date not more to exceed ***, in the aggregate. Promptly following Buyer’s notice to Seller that such amounts have been paid to the Buyer Employees, and in no event later than ten (10) days prior to Business Days thereafter, Seller shall reimburse Buyer for the date full aggregate amount of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on such payments, together with the applicable Employee Data Trigger Date and shall be updated amount, as specified by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with Buyer, of all payroll taxes or similar amounts paid or payable by Buyer in respect to any Business Employee added to the Employee Census pursuant to of such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Datepayments.
Appears in 1 contract
Samples: Asset Purchase Agreement (Azur Pharma Public LTD Co)
Employee Matters. (a) Purchaser Sub shall make an offer During the period commencing on the Closing Date and ending on the earlier of (i) January 31, 2021, and (ii) the first (1st) anniversary of the Effective Time (or, if shorter, the period of employment of the relevant Continuing Employee), Parent shall provide, or communicate cause its Subsidiaries to provide, each Business Employee its transfer employee of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shallor any of its Subsidiaries as of the Closing, upon requestto the extent that each such employee remains employed with Parent or any of its Subsidiaries (including the Surviving Corporation) as of and following the Closing (any such employee, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee a “Continuing Employee”) with: (as listed on an employee census (the “Employee Census”)x) at least five (5) Business Days the same annual base salary or base wage rate as in effect immediately prior to the Closing Date, Subsequent (y) at least the same cash bonus or other short-term cash incentive opportunities provided to such Continuing Employee by the Company in respect of the fiscal year in which the Closing Date occurs, and (z) other employee benefits (excluding any defined benefit pension, nonqualified deferred compensation, post-termination or Distribution Center retiree health or welfare and equity or equity-based benefits) that are substantially similar in the aggregate to such employee benefits provided under the Company Benefit Plans in which the Continuing Employee participated immediately prior to the Closing DateDate (excluding any defined benefit pension, as applicablenonqualified deferred compensation, post-termination or retiree health or welfare and equity or equity-based benefits); provided, that in Parent shall provide or cause its Subsidiaries to provide any employee benefits required by applicable Law. Without limiting the immediately preceding sentence, Parent shall provide, or shall cause its Subsidiaries to provide, for the period commencing on the Closing Date and ending on the earlier of (i) January 31, 2021, and (ii) the first (1st) anniversary of the Effective Time, each case, any offer or transfer of employment Continuing Employee with respect to a Business Employee is subject to severance benefits on the condition that such Business Employee is employed by terms and conditions and at the Company or an Affiliate levels set forth on Section 6.7(a) of the Company on Disclosure Letter, determined (x) without taking into account any reduction after the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, in compensation paid to such Continuing Employee and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12y) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state taking into account each Business Continuing Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee Subsidiaries (and any predecessor entities) and, after the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoingClosing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire any such Excluded Employee or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee Severance. The Company shall deliver a census summary (which shall comply with Section 6.14(a) of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start DateSubsidiaries.
Appears in 1 contract
Employee Matters. (a) During the period beginning one (1) day following the date on which Purchaser Sub shall make an has made all filings for Federal Approvals and State Approvals (“Commencement Date”) and ending on the date sixty (60) days after the Commencement Date (“Offer Period”), the Purchaser may offer of employment or communicate to each Business Employee its transfer Employee, contingent on Closing and effective as of employment to Purchaser Subthe Closing Date or, in either case, in a manner reasonably determined by Purchaser Sub, and the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer case of an Employee who is receiving short-term or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (long-term disability benefits under Seller’s Benefit Plans as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing the first Business Day thereafter on which such individual provides sufficient documentation that such individual may return to work (the “Hire Date”). At any time after the Commencement Date until thirty-one (31) days prior to the Closing, the Purchaser may offer to employ or Distribution Center otherwise engage the services of any Contractor effective on or after the Closing Date, as applicable, and if such Inactive Employee does not so return within twelve (12) months, then the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business Employee’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject to the requirements of any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with the Company or an Affiliate of the Company. Notwithstanding the foregoing, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire if any such Excluded Employee or any claim for Excluded Employee Severance; provided thatindividual who is listed on Schedule 4.13, for following the avoidance date hereof, changes job position of doubt, Parent and Purchaser Sub shall not indemnify and hold the Company harmless with respect his/her own volition pursuant to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company Seller’s (or its Affiliates’) internal job posting procedures or terminates employment and, other than Excluded Employee Severance. The Company shall deliver as a census summary (which shall comply result of such change or termination, ceases to be employed principally in connection with Section 6.14(a) the ownership and operation of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date Purchased Assets, such individual shall not be considered an Employee for purposes of this Agreement, which Census Summary Section 6.13. All offers of employment by the Purchaser shall be as of a date not more than ten (10) days prior to the date of this Agreementmade in accordance with applicable Law. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by the Company no earlier than three (3) weeks prior to the Census Start Date for any Business Employee and with respect to any Business Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an An offer of employment or communicate to an Employee shall include (i) a transfer Qualifying Base Salary (as defined below), (ii) an incentive bonus percentage opportunity (applicable to the sum of the base salary and the Included Retention Bonus) during the first 12 months of employment as soon as practicable thereafter but no later that is not less than the Census Start Date.incentive bonus percentage of such individual set forth in Part I of Schedule 4.13 (“Qualifying Incentive Bonus”), and (iii) employment at the same geographic location at which each such individual is working and for substantially the same position and substantially the same level of responsibility as applicable to such individual as of the Closing (such an offer constituting, collectively, a “Qualified Offer”). The term “
Appears in 1 contract
Samples: Purchase and Sale Agreement (Aep Generating Co /Oh/)
Employee Matters. (a) Purchaser Sub On or before the date selected by Buyer, which date shall make an offer be within five Business Days after the Closing Date (the “Transition Date”), the Buyer shall, or shall cause one of employment or communicate to each Business Employee its transfer Affiliates to, extend offers of employment to Purchaser Sub, in either case, in a manner reasonably determined by Purchaser Sub, and each employee of the Company shall, upon request, use commercially reasonable efforts to assist Purchaser Sub in preparing and delivering the applicable offer or communication. Such offer of employment or communication of transfer of employment shall be provided to each Business Employee (as listed on an employee census (the “Employee Census”)) at least five (5) Business Days prior to the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable; provided, that in each case, any offer or transfer of employment with respect to a Business Employee is subject to the condition that such Business Employee is employed by the Company or an Affiliate Schedule 5.9 of the Company on the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, Seller Disclosure Letter (“Business Employee”) who is actively at work as applicable, and employment for such Business Employee shall begin on the first Business Day following such date (the “Census Start Date”); provided, further, that with respect to any Inactive Employee, any offer of employment or communication of transfer of employment shall be made with a commencement date of the date that such employee actively returns to work in accordance with the applicable leave policy within twelve (12) months of the Closing Date, Subsequent Closing Date or Distribution Center Closing Date, as applicable, which offers shall be subject to Buyer’s customary and if generally applicable conditions of employment (all such Inactive Employee does not so return within twelve (12) months, then employees who accept the offer or communication of transfer shall expire or become invalid, as applicable, unless required by Law to remain open for a longer period; provided, further, that the Employee Census shall state each Business EmployeeBuyer’s name, title, current service credit with the Company and its Affiliates, classification, salary or pay rate, short-term and long-term bonus eligibility, status with respect to whether he or she is currently an Inactive Employee (and the reason such Business Employee is in Inactive Employee status) and each Employee Plan for which such Business Employee is then eligible. Each offer of employment or transfer of employment shall be for a substantially comparable position held by such Business Employee (subject are referred to as the “Transferring Employees”). Subject to the requirements of applicable Law, Seller will deliver such other employee information regarding the Business Employees as may be reasonably requested by Buyer at Closing. For purposes of this Agreement, any applicable collective bargaining agreement), and at the same location(s) at which such Business Employee worked while employed with who is not at work on the Company Closing Date due to a short-term absence (including due to vacation, holiday, jury duty, illness, authorized short-term leave of absence or an Affiliate of the Company. Notwithstanding the foregoingshort-term disability) shall be deemed to be “actively at work”; provided, Parent and Purchaser Sub shall indemnify and hold the Company harmless with respect to any Losses related to any claim or threatened claim by or on behalf of any Excluded Employees arising out of Purchaser or Purchaser Sub’s failure to offer employment to or hire that any such Excluded Employee individuals that are on authorized short-term leave of absence or any claim for Excluded Employee Severance; provided that, for the avoidance of doubt, Parent and Purchaser Sub short-term disability shall not indemnify be deemed to constitute “Transferring Employees” until such time as they return to active employment and hold accept the Company harmless with respect to any Losses related to a claim for compensation or benefits arising under any compensation or benefit plan, agreement or arrangement maintained by the Company or its Affiliates, other than Excluded Employee SeveranceBuyer’s offer of employment. The Company shall deliver a census summary (which shall comply with Section 6.14(a) terminate the employment of the Company Disclosure Schedules) (the “Census Summary”) on or prior to date of this Agreement, which Census Summary shall be as of a date not more than ten (10) days all Transferring Employees immediately prior to the date of this Agreement. The Employee Census shall first be delivered to Purchaser Sub on the applicable Employee Data Trigger Date and shall be updated by Transition Date, provided, that the Company no earlier than three (3) weeks prior to shall terminate the Census Start Date for employment of any Business Employee who at Closing is on a short-term leave of absence or short-term disability and with respect to any Business who subsequently becomes a Transferring Employee added to the Employee Census pursuant to such an update, Purchaser Sub shall make an offer of employment or communicate a transfer of employment as soon as practicable thereafter but no later than the Census Start Datedate such Transferring Employee commences active employment with the Buyer. Buyer will reimburse Seller at a fixed rate per day for each day during the Transition Date pursuant to the terms of the Transition Services Agreement.
Appears in 1 contract
