Benefit Matters. (a) Parent agrees that each employee of the Company or any of its Subsidiaries who continues employment with Parent, H&H Acquisition Sub, H&H Group, the Surviving Corporation or any of their respective Subsidiaries after the Merger Closing Date (each, a “Continuing Employee”) shall be provided with benefits on substantially the same terms as benefits are provided to similarly situated employees of Parent. Nothing in this Agreement shall require Parent, H&H Acquisition Sub, H&H Group, the Surviving Corporation or any of their Subsidiaries to continue to employ any particular employee of the Company or any of its Subsidiaries following the Merger Closing Date, or shall be construed to prohibit Parent, H&H Acquisition Sub, H&H Group, Surviving Corporation or any of their Subsidiaries from amending or terminating any Company Benefit Plan. (b) Parent, H&H Acquisition Sub, H&H Group and the Surviving Corporation shall ensure that, as of the Merger Closing Date, each Continuing Employee receives full credit (for all purposes, including eligibility to participate, vesting, vacation entitlement and severance benefits) for service with the Company or any of its Subsidiaries (or predecessor employers to the extent the Company provides such past service credit under its employee benefit plans) under each of the comparable employee benefit plans, programs and policies of Parent, the Surviving Corporation or the relevant Subsidiary, as applicable, in which such Continuing Employee becomes a participant; provided, however, that no such service recognition shall result in any duplication of benefits. As of the Merger Closing Date, Parent, H&H Acquisition Sub and H&H Group shall, or shall cause the Surviving Corporation or relevant Subsidiary to, credit to each Continuing Employee the amount of vacation time that such employee had accrued under any applicable Company Benefit Plan as of the Merger Closing Date. With respect to each health or welfare benefit plan maintained by Parent, the Surviving Corporation or the relevant Subsidiary for the benefit of any Continuing Employee, Parent shall (i) cause to be waived any eligibility waiting periods, any evidence of insurability requirements and the application of any pre-existing condition limitations under such plan, and (ii) cause each Continuing Employee to be given credit under such plan for all amounts paid by such Continuing Employee under any similar Company Benefit Plan for the plan year that includes the Merger Closing Date for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the applicable plan maintained by Parent, the Surviving Corporation or the relevant Subsidiary, as applicable, for the plan year in which the Merger Closing Date occurs. (c) Parent, H&H Acquisition Sub and H&H Group shall, or shall cause the Surviving Corporation or relevant Subsidiary to, assume and honor in accordance with their terms all deferred compensation agreements, severance agreements and written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) set forth in Section 3.01(l)(i) of the Company Disclosure Letter applicable to employees of the Company or any of its Subsidiaries, in the same manner and to the same extent that the Company or such Subsidiary would be required to perform and honor such plans, agreements and arrangements if the transactions contemplated by this Agreement had not been consummated.
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Benefit Matters. (ai) Parent agrees Effective as of the Closing, Buyer shall (and shall cause to be taken all actions as are necessary or appropriate to) assume the sponsorship of, the assets maintained pursuant to, and all liabilities and obligations arising under or in connection with each Assumed Seller Plan. Buyer shall be solely responsible for complying with the requirements of Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code for any individual who is an “M&A qualified beneficiary” as defined in Q&A-4 of Treas. Reg. §54.4980B-9.
(ii) Prior to the Closing, (A) the board of managers of the Company will have caused to be passed a resolution stating that each employee the Company 401(k) Plan shall be terminated effective at least one (1) day prior to the Closing but contingent on the occurrence of the Closing, and (B) the Company shall not take any actions that would cause the Company 401(k) Plan to lose its tax-qualified status. Within thirty (30) days of Closing, Buyer shall permit all employees who were participants in or eligible to participate in the Company 401(k) Plan as of the Closing Date to participate in a 401(k) plan maintained by Buyer or its Affiliates (the “Buyer 401(k) Plan”). Prior to the Closing, the board of directors of Buyer will have caused to be passed a resolution (a copy of which shall have been provided to Sellers) stating that Buyer or designee of Buyer shall become the named fiduciary (as determined under ERISA) of the Company 401(k) Plan following the Closing, which resolution may also provide that Buyer may delegate such fiduciary status to a designee to the extent permitted by applicable Laws. Buyer shall further cause the Buyer 401(k) Plan to accept rollovers of distributions (or direct rollovers) and outstanding participant loans from the Company 401(k) Plan. Buyer shall administer, at Buyer’s sole cost and expense, the termination of the Company 401(k) Plan in compliance with its terms and the requirements of all applicable Laws, and in such a manner as to permit the distribution of loan promissory notes from the Company 401(k) Plan and rollover of such promissory notes to the Buyer 401(k) Plan without causing any default on a Company 401(k) Plan loan.
(iii) Following the Closing, Buyer shall cause to be granted to all employees of Buyer or any of its Affiliates who were employees of the Company or any of its Subsidiaries who continues employment with Parent, H&H Acquisition Sub, H&H Group, immediately prior to the Surviving Corporation or any of their respective Subsidiaries after the Merger Closing Date (each, a “Continuing Employee”) shall be provided with benefits on substantially the same terms as benefits are provided to similarly situated employees of Parent. Nothing in this Agreement shall require Parent, H&H Acquisition Sub, H&H Group, the Surviving Corporation or any of their Subsidiaries to continue to employ any particular employee of the Company or any of its Subsidiaries following the Merger Closing Date, or shall be construed to prohibit Parent, H&H Acquisition Sub, H&H Group, Surviving Corporation or any of their Subsidiaries from amending or terminating any Company Benefit Plan.
(b) Parent, H&H Acquisition Sub, H&H Group and the Surviving Corporation shall ensure that, as of the Merger Closing Date, each Continuing Employee receives full credit (for all purposes, purposes (including eligibility to participateeligibility, vesting, vacation entitlement and severance accrual or determination of amount of benefits) for their service with the Company or any of its Subsidiaries (or predecessor employers prior to the extent the Company provides such past service credit under its employee benefit plans) under each of the comparable employee benefit plans, programs and policies of Parent, the Surviving Corporation or the relevant Subsidiary, as applicable, in which such Continuing Employee becomes a participant; provided, however, that no such service recognition shall result in any duplication of benefits. As of the Merger Closing Date, Parent, H&H Acquisition Sub and H&H Group shall, or shall cause the Surviving Corporation or relevant Subsidiary to, credit to each Continuing Employee the amount of vacation time that such employee had accrued under any applicable Company Benefit Plan as of the Merger Closing Date. With respect to each health benefit or welfare benefit plan compensation plan, program, agreement, contract or arrangement maintained by ParentBuyer or any of its Affiliates. Further, following the Surviving Corporation Closing, Buyer shall credit all employees of Buyer or the relevant Subsidiary for the benefit any of any Continuing Employee, Parent shall (i) cause to be waived any eligibility waiting periods, any evidence of insurability requirements and the application of any pre-existing condition limitations under such plan, and (ii) cause each Continuing Employee to be given credit under such plan for all amounts paid by such Continuing Employee under any similar Company Benefit Plan for the plan year that includes the Merger Closing Date for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the applicable plan maintained by Parent, the Surviving Corporation or the relevant Subsidiary, as applicable, for the plan year in which the Merger Closing Date occurs.
(c) Parent, H&H Acquisition Sub and H&H Group shall, or shall cause the Surviving Corporation or relevant Subsidiary to, assume and honor in accordance with their terms all deferred compensation agreements, severance agreements and written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) set forth in Section 3.01(l)(i) of the Company Disclosure Letter applicable to its Affiliates who were employees of the Company or any of its Subsidiaries, Subsidiaries immediately prior to the Closing with the amount of their extended illness bank benefits in the same manner amount set forth on Schedule 11E(iii) and shall permit all such employees to utilize such benefits in accordance with the terms of the policy of the Company and its Subsidiaries that was in effect with respect to such benefits prior to the same extent that the Company or such Subsidiary would be required to perform and honor such plans, agreements and arrangements if the transactions contemplated by this Agreement had not been consummatedClosing Date.
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Benefit Matters. (a) Parent agrees that The Buyer Sub shall offer employment to each employee Employee, effective upon the Effective Time. All such offers of employment pursuant to this Section 7.11
(a) will be for employment-at-will and will be contingent on the Company or Employee satisfying customary hiring conditions, as applicable, and the Buyer Sub may terminate any of its Subsidiaries who continues employment with Parent, H&H Acquisition Sub, H&H Group, the Surviving Corporation or Employee at any of their respective Subsidiaries after the Merger Closing Date (each, a “Continuing Employee”) shall be provided with benefits on substantially the same terms as benefits are provided to similarly situated employees of Parent. Nothing in this Agreement shall require Parent, H&H Acquisition Sub, H&H Group, the Surviving Corporation or time and for any of their Subsidiaries to continue to employ any particular employee of the Company or any of its Subsidiaries reason following the Merger Closing Date, or shall be construed to prohibit Parent, H&H Acquisition Sub, H&H Group, Surviving Corporation or any of their Subsidiaries from amending or terminating any Company Benefit PlanEffective Time.
(b) Parent, H&H Acquisition Sub, H&H Group and the Surviving Corporation shall ensure that, as As of the Merger Effective Time, the Buyer Sub shall, in accordance with their terms, where applicable, adopt and assume all of the Benefit Plans, other than the Seller 401(k) Profit Sharing Plan, and all rights, responsibilities, obligations, liabilities, insurance policies and service provider contracts thereunder. On and after the Closing Date, each Continuing Employee receives full credit (for all purposes, including eligibility to participate, vesting, vacation entitlement and severance benefits) for service with neither the Company or Seller nor any of its Subsidiaries (the Seller Stockholders shall have any rights, responsibilities, obligations or predecessor employers to liabilities under any such assumed Benefit Plan, regardless of whether such rights, responsibilities, obligations or liabilities arose prior to, on or after the extent the Company provides such past service credit under its employee benefit plans) under each of the comparable employee benefit plans, programs and policies of Parent, the Surviving Corporation or the relevant Subsidiary, as applicable, in which such Continuing Employee becomes a participant; provided, however, that no such service recognition shall result in any duplication of benefits. As of the Merger Closing Date, Parent, H&H Acquisition Sub and H&H Group shall, or shall cause the Surviving Corporation or relevant Subsidiary to, credit to each Continuing Employee the amount of vacation time that such employee had accrued under any applicable Company Benefit Plan as of the Merger Closing Date. With except with respect to each health or welfare benefit plan maintained by Parent, the Surviving Corporation or the relevant Subsidiary for the benefit a breach of any Continuing Employee, Parent shall (i) cause to be waived any eligibility waiting periods, any evidence Section 4.20 of insurability requirements and the application of any pre-existing condition limitations under such plan, and (ii) cause each Continuing Employee to be given credit under such plan for all amounts paid by such Continuing Employee under any similar Company Benefit Plan for the plan year that includes the Merger Closing Date for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the applicable plan maintained by Parent, the Surviving Corporation or the relevant Subsidiary, as applicable, for the plan year in which the Merger Closing Date occursthis Agreement.
(c) ParentThe Buyer Sub shall assume the liability for accrued and unused vacation with respect to each Employee as of the Effective Time.
(d) The Buyer shall permit Employees who have an account balance under the Seller 401(k) Profit Sharing Plan, H&H Acquisition Sub and H&H Group shalla tax-qualified defined contribution retirement plan, to rollover (whether by direct or shall cause the Surviving Corporation indirect rollover, as selected by such Employee) his or relevant Subsidiary to, assume and honor in accordance with their terms all deferred compensation agreements, severance agreements and written employment, severance, retention, incentive, change in control and termination agreements her “eligible rollover distribution” (including any change in control provisions therein) set forth in as defined under Section 3.01(l)(i402(c)(4) of the Company Disclosure Letter applicable to employees Code) in the form of cash, a promissory note (in the Company case of loans) or any combination thereof from the Seller 401(k) Profit Sharing Plan to the Buyer Personal Savings Account Plan, a tax-qualified defined contribution retirement plan. In the case of its Subsidiariesany Employee with an outstanding loan balance under the Seller 401(k) Profit Sharing Plan, the Seller and the Buyer shall take (or cause to be taken) any and all necessary action, to the extent allowable by Law, to permit the Employee to rollover such outstanding loan balance to the Buyer Personal Savings Account Plan through a direct rollover on or as soon as administratively possible after the Closing Date. Each Employee shall become a participant in the same manner Buyer Personal Savings Account Plan on the Closing Date and, for purposes of eligibility and vesting under such plan, shall receive credit for the Employee’s service with the Seller.
(e) After the Closing Date, the Buyer shall provide to the same extent Seller, without charge, the services and support from the Seller’s former Vice President of Human Resources that are necessary for the Company or such Subsidiary would be required Seller to perform terminate and honor such plans, agreements and arrangements if liquidate the transactions contemplated by this Agreement had not been consummated.Seller 401(k)
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Sources: Asset Purchase Agreement
Benefit Matters. (a) To the extent service is relevant for purposes of eligibility, participation or vesting or receipt of benefits under a welfare benefit plan (but not the accrual of benefits under a retirement plan) under any employee benefit plan, program or arrangement established or maintained by Parent agrees that each employee or a Subsidiary of Parent in which Business Employees may participate, such Business Employees shall be credited for service accrued as of the Effective Time with the Company to the extent such service was credited under a similar plan, program or any of its Subsidiaries who continues employment with Parent, H&H Acquisition Sub, H&H Group, the Surviving Corporation or any of their respective Subsidiaries after the Merger Closing Date (each, a “Continuing Employee”) shall be provided with benefits on substantially the same terms as benefits are provided to similarly situated employees of Parent. Nothing in this Agreement shall require Parent, H&H Acquisition Sub, H&H Group, the Surviving Corporation or any of their Subsidiaries to continue to employ any particular employee arrangement of the Company or any of its Subsidiaries following the Merger Closing Date, or shall be construed to prohibit Parent, H&H Acquisition Sub, H&H Group, Surviving Corporation or any of their Subsidiaries from amending or terminating any Company Benefit PlanCompany.
(b) To the extent Business Employees and their dependents enroll in any health plan sponsored by Parent or a Subsidiary of Parent, H&H Acquisition SubParent shall waive any preexisting condition limitation applicable to such Business Employees to the extent that the employee’s or dependent’s condition would not have operated as a preexisting condition under the group health plan maintained by the Company. In addition, H&H Group Parent shall cause such health plans (i) to waive all preexisting condition exclusions and the Surviving Corporation shall ensure thatwaiting periods otherwise applicable to Business Employees and their dependents, other than exclusions or waiting periods that are in effect with respect to such individuals as of the Merger Closing Date, each Continuing Employee receives full credit (for all purposes, including eligibility to participate, vesting, vacation entitlement and severance benefits) for service with the Company or any of its Subsidiaries (or predecessor employers Effective Time to the extent not satisfied, under the Company provides such past service credit under its employee corresponding benefit plans) under each plans of the comparable employee benefit plans, programs and policies of Parent, the Surviving Corporation or the relevant Subsidiary, as applicable, in which such Continuing Employee becomes a participant; provided, however, that no such service recognition shall result in any duplication of benefits. As of the Merger Closing Date, Parent, H&H Acquisition Sub and H&H Group shall, or shall cause the Surviving Corporation or relevant Subsidiary to, credit to each Continuing Employee the amount of vacation time that such employee had accrued under any applicable Company Benefit Plan as of the Merger Closing Date. With respect to each health or welfare benefit plan maintained by Parent, the Surviving Corporation or the relevant Subsidiary for the benefit of any Continuing Employee, Parent shall (i) cause to be waived any eligibility waiting periods, any evidence of insurability requirements and the application of any pre-existing condition limitations under such planCompany, and (ii) cause to provide each Continuing Business Employee to be given and his or her dependents with corresponding credit under such plan for all amounts paid by such Continuing Employee under any similar Company Benefit Plan for the plan year that includes the Merger Closing Date for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been deductibles paid in accordance with by them under the terms and conditions corresponding benefit plans of the applicable plan maintained by Parent, Company during the Surviving Corporation or portion of the relevant Subsidiary, as applicable, for the respective plan year in which prior to the Merger Closing Date occursEffective Time.
(c) With respect to the 401(k) accounts of those Business Employees who become eligible to participate in Parent’s 401(k) plan after the Effective Time, H&H Acquisition Sub and H&H Group shall, Parent agrees to take one or shall cause more of the Surviving Corporation following actions: (i) to establish an arrangement under which such Business Employees are provided with payroll withholding for purposes of repaying any loan that is outstanding under the Company’s 401(k) plan as of the Effective Time; (ii) to permit such Business Employees to voluntarily transfer or relevant Subsidiary to, assume and honor in accordance with roll over their terms all deferred compensation agreements, severance agreements and written employment, severance, retention, incentive, change in control and termination agreements accounts (including loans) from the Company’s 401(k) plan to Parent’s 401(k) plan; or (iii) to cause Parent’s 401(k) plan to accept a direct trustee-to-trustee transfer of assets from the Company’s 401(k) plan into Parent’s 401(k) plan, including any change in control provisions therein) set forth in Section 3.01(l)(i) outstanding loans, on behalf of such Business Employees. Parent and the Company Disclosure Letter applicable to employees agree that they shall take all actions necessary, including the amendment of the Company or any of its Subsidiaries, in the same manner and to the same extent that the Company or such Subsidiary would be required to perform and honor such their respective plans, agreements to effect the actions selected by Parent under the preceding sentence.
(d) The Company and arrangements if the transactions contemplated by Parent shall cooperate with each other in all reasonable respects relating to any actions to be taken pursuant to this Agreement had not been consummatedSection 6.8.
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Benefit Matters. (a) Parent agrees that The Buyer Sub shall offer employment to each employee Employee, effective upon the Effective Time. All such offers of employment pursuant to this Section 7.11(a) will be for employment-at-will and will be contingent on the Employee satisfying customary hiring conditions, as applicable, and the Buyer Sub may terminate any Employee at any time and for any reason following the Effective Time.
(b) As of the Company Effective Time, the Buyer Sub shall, in accordance with their terms, where applicable, adopt and assume all of the Benefit Plans, other than the Seller 401(k) Profit Sharing Plan, and all rights, responsibilities, obligations, liabilities, insurance policies and service provider contracts thereunder. On and after the Closing Date, neither the Seller nor any of the Seller Stockholders shall have any rights, responsibilities, obligations or liabilities under any such assumed Benefit Plan, regardless of whether such rights, responsibilities, obligations or liabilities arose prior to, on or after the Closing Date, except with respect to a breach of Section 4.20 of this Agreement.
(c) The Buyer Sub shall assume the liability for accrued and unused vacation with respect to each Employee as of the Effective Time.
(d) The Buyer shall permit Employees who have an account balance under the Seller 401(k) Profit Sharing Plan, a tax-qualified defined contribution retirement plan, to rollover (whether by direct or indirect rollover, as selected by such Employee) his or her “eligible rollover distribution” (as defined under Section 402(c)(4) of the Code) in the form of cash, a promissory note (in the case of loans) or any combination thereof from the Seller 401(k) Profit Sharing Plan to the Buyer Personal Savings Account Plan, a tax-qualified defined contribution retirement plan. In the case of any Employee with an outstanding loan balance under the Seller 401(k) Profit Sharing Plan, the Seller and the Buyer shall take (or cause to be taken) any and all necessary action, to the extent allowable by Law, to permit the Employee to rollover such outstanding loan balance to the Buyer Personal Savings Account Plan through a direct rollover on or as soon as administratively possible after the Closing Date. Each Employee shall become a participant in the Buyer Personal Savings Account Plan on the Closing Date and, for purposes of eligibility and vesting under such plan, shall receive credit for the Employee’s service with the Seller.
(e) After the Closing Date, the Buyer shall provide to the Seller, without charge, the services and support from the Seller’s former Vice President of Human Resources that are necessary for the Seller to terminate and liquidate the Seller 401(k) Profit Sharing Plan. Such services and support shall include (i) the preparation and filing of Form 5310 with the Internal Revenue Service for the termination of such plan and responding to questions and requests for information in connection with such filing, (ii) the administration of the Seller 401(k) Profit Sharing Plan through the date of final liquidation, and (iii) the preparation and filing of all Form 5500s, including the final Form 5500 following liquidation of such plan. Notwithstanding anything to the contrary, such services and support will only be provided in a settlor capacity or for purely administrative functions and will not be provided in a fiduciary capacity.
(f) Nothing contained herein, expressed or implied, is intended to confer upon any individual (including any Employee) any right to employment or continued employment with the Buyer or any of its Subsidiaries who continues employment with Parent, H&H Acquisition Sub, H&H GroupAffiliates for any period by reason of this Agreement. In addition, the Surviving Corporation provisions of this Agreement, in particular this Section 7.11 are solely for the benefit of the Parties to this Agreement, and no other Person (including any current or former employee, director or independent contractor or any of their respective Subsidiaries after the Merger Closing Date (each, a “Continuing Employee”other individual associated therewith) shall be provided with benefits on substantially the same terms regarded for any purpose as benefits are provided to similarly situated employees of Parent. Nothing in this Agreement shall require Parent, H&H Acquisition Sub, H&H Group, the Surviving Corporation or any of their Subsidiaries to continue to employ any particular employee a third-party beneficiary of the Company or any of its Subsidiaries following the Merger Closing DateAgreement, or and nothing herein shall be construed as an amendment to prohibit Parent, H&H Acquisition Sub, H&H Group, Surviving Corporation any Benefit Plan or any compensation or benefit plan of their Subsidiaries the Buyer nor shall anything contained herein restrict the Buyer or its Affiliates from amending or terminating any Company Benefit Plan.
(b) Parent, H&H Acquisition Sub, H&H Group and the Surviving Corporation shall ensure that, as of the Merger Closing Date, each Continuing Employee receives full credit (for all purposes, including eligibility to participate, vesting, vacation entitlement and severance benefits) for service with the Company or any of its Subsidiaries (or predecessor employers to the extent the Company provides such past service credit under its their employee benefit plans) under each of the comparable employee benefit plans, programs and policies of Parent, the Surviving Corporation plans or the relevant Subsidiary, as applicable, in which such Continuing Employee becomes a participant; provided, however, that no such service recognition shall result in any duplication of benefits. As of the Merger Closing Date, Parent, H&H Acquisition Sub and H&H Group shall, or shall cause the Surviving Corporation or relevant Subsidiary to, credit to each Continuing Employee the amount of vacation time that such employee had accrued under any applicable Company Benefit Plan as of the Merger Closing Date. With respect to each health or welfare benefit plan maintained by Parent, the Surviving Corporation or the relevant Subsidiary for the benefit of any Continuing Employee, Parent shall (i) cause to be waived any eligibility waiting periods, any evidence of insurability requirements and the application of any pre-existing condition limitations under such plan, and (ii) cause each Continuing Employee to be given credit under such plan for all amounts paid by such Continuing Employee under any similar Company Benefit Plan for the plan year that includes the Merger Closing Date for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the applicable plan maintained by Parent, the Surviving Corporation or the relevant Subsidiary, as applicable, for the plan year in which the Merger Closing Date occurscompensation arrangements.
(c) Parent, H&H Acquisition Sub and H&H Group shall, or shall cause the Surviving Corporation or relevant Subsidiary to, assume and honor in accordance with their terms all deferred compensation agreements, severance agreements and written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) set forth in Section 3.01(l)(i) of the Company Disclosure Letter applicable to employees of the Company or any of its Subsidiaries, in the same manner and to the same extent that the Company or such Subsidiary would be required to perform and honor such plans, agreements and arrangements if the transactions contemplated by this Agreement had not been consummated.
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