Employee and Related Matters. (a) Buyer will cause the employment of all Employees by the Company to be continued with the Company after the Closing Date. If the employment of any Employee with the Company is terminated after the Closing Date, Buyer shall be responsible for any costs and consequences of such termination, which costs and consequences shall be expenses subject to an indemnification claim as provided in Article XI of this Agreement. (b) On and after the Closing Date, Buyer shall, or shall cause the Company or a subsidiary of Buyer to, offer compensation and benefits to the Employees that are substantially similar in the aggregate to the compensation and benefits provided to similarly situated employees of Buyer in the year prior to the Closing Date. Notwithstanding the foregoing, for a period of at least twelve (12) months following the Closing Date, Buyer shall, or shall cause the Company or a subsidiary of the Company to, offer severance benefits to each Employee, which benefits shall be substantially similar to the severance benefits provided under the B▇▇▇▇▇▇-▇▇▇▇▇ Squibb Pharma Company Termination Allowance Plan to each such Employee immediately prior to the Closing Date, taking into account the service credited to each such Employee under such Termination Allowance Plan immediately prior to the Closing Date, except to the extent severance benefits are provided in an employment agreement between Buyer or the Company and any Key Employee, which agreement is effective as of the Closing Date. (c) Buyer shall assume, or cause the Company to assume, the obligation to make any payments due to Employees on or after the Closing Date under all termination plans and employment, severance and change-in-control agreements and arrangements described in Section 9.01(c) of the Seller Disclosure Schedule in effect immediately prior to the Closing Date whether or not the event that triggers any such payment occurs prior to, on or after the Closing Date. The Closing shall be treated as a “change in control” for all purposes under such plans, agreements and arrangements. (d) Except as set forth in Section 9.01(c), Seller and its Affiliates shall retain the obligation to make any payments to Employees relating to service with the Company prior to the Closing Date under any Plan which is a compensation plan or arrangement. Seller and its Affiliates shall retain all liabilities with respect to the B▇▇▇▇▇▇-▇▇▇▇▇ Squibb Pharma Company Supplemental Retention Program and the Annual Variable Compensation Plan. (e) Each Employee with accrued benefits in the Seller Qualified Pension Plan shall be fully vested in such benefits as of the Closing Date. No assets or liabilities shall be transferred from the Seller Qualified Pension Plan to Buyer or the Company or to any plan or arrangement sponsored by Buyer or the Company as a result of any transaction contemplated by this Agreement. (f) Effective immediately prior to the Closing, Seller and its Affiliates shall take all actions necessary to cause the Company to cease to be a participating employer in any employee benefit plan maintained or sponsored by Seller or another ERISA Affiliate and, with respect to any employee benefit plan sponsored solely by the Company, the Company shall, effective immediately prior to the Closing, take all actions necessary either to terminate such employee benefit plan or to have the sponsorship of such employee benefit plan assumed by Seller. (g) Each Employee with a balance in his or her accounts in the BMS Qualified Savings Plan shall be fully vested in such accounts as of the Closing Date. Each Employee who participates in the BMS Qualified Savings Plan shall have the right to elect to receive a distribution of the Employee’s entire account balance in the BMS Qualified Savings Plan, subject to the terms of the BMS Qualified Savings Plan and Applicable Law. Buyer shall establish or designate a defined contribution plan and trust (the “Buyer Qualified Savings Plan”) that is qualified under section 401(a) of the Code and exempt from taxation under section 501(a) of the Code, which trust shall, no later than sixty (60) days after the Closing Date, accept a direct rollover of any such distribution to an individual employed by the Company on the date of the distribution, including any portion of such distribution attributable to employer matching contributions and any notes recording outstanding loans from the BMS Qualified Savings Plan. The Buyer Qualified Savings Plan shall provide benefits at least substantially equivalent to the savings benefits provided to similarly situated employees of Buyer and shall credit for purposes of eligibility and vesting all service of the Employees that was credited for such purposes under the BMS Qualified Savings Plan. (h) Seller and its Affiliates shall retain all liabilities with respect to the provision of long-term disability benefits to each Employee and Former Employee who was receiving, or was eligible to receive, benefits under the BMS Long-Term Disability Plan as of the Closing Date owing to a qualifying disability incurred prior to the Closing Date. Buyer shall assume all liabilities with respect to the provision of long-term disability benefits to each Employee who was receiving, or was eligible to receive, short-term disability benefits under the BMS Short-Term Disability Plan as of the Closing Date owing to a qualifying disability incurred by such Employee prior to the Closing Date and who is determined after the Closing Date to be qualified for long-term disability benefits as the result of such disability. (i) Each Employee with accrued benefits in the Seller Nonqualified Pension Plan shall be fully vested in such benefits as of the Closing Date. Each Employee with a balance in his or her accounts in the BMS Nonqualified Savings Plan shall be fully vested in such benefits as of the Closing Date. Seller and its Affiliates shall assume all liabilities with respect to the provision of nonqualified pension and savings benefits to the extent such liabilities were accrued by Employees or Former Employees prior to the Closing Date. (j) As of the Closing Date, with respect to all employee liabilities or obligations not otherwise provided for in this Agreement (including any liability or obligation relating to or arising under any employee benefit or compensation plan, fund, agreement or arrangement, accrued wages, and workers’ compensation, holiday, vacation and sick day benefits), Seller and its Affiliates shall assume and be solely responsible for all liabilities and obligations with respect to Former Employees, and Buyer or the Company shall assume and be solely responsible for all liabilities and obligations with respect to current Employees. (k) As of the Closing Date, Buyer shall cause any preexisting condition, restriction, or waiting period to be waived to the extent necessary to provide immediate coverage to any Employee for any employee benefit provided under any employee benefit plan of Buyer, any subsidiary of Buyer or the Company. Any such plan that is a medical plan will apply any amounts paid under a medical plan of the Company, Seller or an Affiliate by an Employee as a deductible or co–payment during the year in which the Closing Date occurs toward the deductible and other out–of–pocket limits of the medical plan of Buyer, a subsidiary of Buyer or the Company. (l) The Company shall assume liability with respect to any damages, losses, costs and expenses incurred as a result of a claim by any Employee under law (including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1990, the Equal Pay Act, the Americans with Disabilities Act of 1990 and ERISA), under common law, in equity (including wrongful discharge) or under any agreement, policy or promise, written or oral, formal or informal, between Seller or an Affiliate and an Employee. Seller and its Affiliates shall assume liability with respect to any damages, losses, costs and expenses incurred as a result of a claim by any Former Employee that arises under law, under common law, in equity or under any agreement, policy or promise between Seller or an Affiliate and a Former Employee of the Company. (m) All liabilities retained, assumed or indemnified by Buyer or Seller or any of their Affiliates pursuant to this Section 9.01 shall be subject to the limitations and indemnification provisions set forth in Article XI of this Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Deltagen Inc)
Employee and Related Matters. (a) Buyer will cause the employment The employees of all Employees by the Company to be continued with the Company after or any Subsidiary on the Closing Date. If the employment Date shall be collectively referred to herein as “Transferred Employees.”
(b) For a period of any Employee with the Company is terminated after not less than one (1) year beginning on the Closing Date, Buyer shall take such actions as may be responsible for any costs necessary to ensure that compensation, benefits, and consequences other terms and conditions of such termination, which costs and consequences shall be expenses subject to an indemnification claim as provided in Article XI employment of this Agreement.
(b) On and after the Closing Date, Buyer shall, or shall cause the Company or a subsidiary of Buyer to, offer compensation and benefits to the Employees that each Transferred Employee are substantially similar comparable in the aggregate to the compensation terms and benefits provided to similarly situated employees of Buyer in conditions under which such individual was employed by the year Company or a Subsidiary immediately prior to the Closing Date. Notwithstanding For purposes of any service or employment requirement for eligibility or entitlement under any employee benefit plan, scheme, or arrangement maintained by Buyer or its affiliates, service and employment with the Company, the Subsidiaries, the Shareholders, or their affiliates shall be treated as service and employment with Buyer and its affiliates. Without limiting the foregoing, neither Buyer nor any of its affiliates (including the Surviving Corporation) shall treat any Transferred Employee as a “new” employee for a period purposes of at least twelve any pre-existing condition exclusions, waiting periods, evidence of insurability requirements or similar provisions under any health care or other welfare benefit plan of Buyer or its affiliates (12including the Surviving Corporation) months following to which such employee is transferred after the Closing DateEffective Time (the “Successor Plans”), and Buyer and such affiliates will make appropriate arrangements with each applicable insurance carrier to ensure such result. Accordingly, all Successor Plans of Buyer or its affiliates (including the Surviving Corporation) in which the Transferred Employees participate after the Effective Time shall, to the fullest extent allowed by law, provide coverage for pre-existing health conditions to the same extent those conditions were covered under the applicable plans or shall cause the Company or a subsidiary programs of the Company to, offer severance benefits to each Employee, which benefits shall be substantially similar to the severance benefits provided under the B▇▇▇▇▇▇-▇▇▇▇▇ Squibb Pharma Company Termination Allowance Plan to each such Employee in effect for them immediately prior to the Closing DateEffective Time, taking into account the service credited and all limitations as to each such Employee under such Termination Allowance Plan immediately prior to the Closing Datepre-existing conditions, except to the extent severance benefits are provided in an employment agreement between Buyer or the Company exclusions and any Key Employee, which agreement is effective as of the Closing Date.
(c) Buyer waiting periods shall assume, or cause the Company to assume, the obligation to make any payments due to Employees on or after the Closing Date under all termination plans and employment, severance and change-in-control agreements and arrangements described in Section 9.01(c) of the Seller Disclosure Schedule in effect immediately prior to the Closing Date whether or not the event that triggers any such payment occurs prior to, on or after the Closing Date. The Closing shall accordingly be treated as a “change in control” for all purposes under such plans, agreements and arrangements.
(d) Except as set forth in Section 9.01(c), Seller and its Affiliates shall retain the obligation to make any payments to Employees relating to service with the Company prior to the Closing Date under any Plan which is a compensation plan or arrangement. Seller and its Affiliates shall retain all liabilities waived with respect to their participation and coverage under the B▇▇▇▇▇▇-▇▇▇▇▇ Squibb Pharma Company Supplemental Retention Program and the Annual Variable Compensation Plan.
(e) Each Successor Plans. In addition, each Transferred Employee with accrued benefits in the Seller Qualified Pension Plan shall be fully vested in such benefits as credited with any co-payments and deductibles paid during the portion of the Closing Date. No assets or liabilities shall be transferred from the Seller Qualified Pension Plan to Buyer or the Company or to any applicable plan or arrangement sponsored by Buyer or the Company as a result of any transaction contemplated by this Agreement.
(f) Effective immediately year prior to the Closing, Seller and its Affiliates shall take all actions necessary to cause the Company to cease to be a participating employer in any employee benefit plan maintained or sponsored by Seller or another ERISA Affiliate and, with respect to any employee benefit plan sponsored solely by the Company, the Company shall, effective immediately prior transfer to the Closing, take all actions necessary either to terminate such employee benefit plan or to have the sponsorship of such employee benefit plan assumed by Seller.
(g) Each Employee with a balance in his or her accounts in the BMS Qualified Savings Plan shall be fully vested in such accounts as of the Closing Date. Each Employee who participates in the BMS Qualified Savings Plan shall have the right to elect to receive a distribution of the Employee’s entire account balance in the BMS Qualified Savings Plan, subject to the terms of the BMS Qualified Savings Plan and Applicable Law. Buyer shall establish or designate a defined contribution plan and trust (the “Buyer Qualified Savings Plan”) that is qualified under section 401(a) of the Code and exempt from taxation under section 501(a) of the Code, which trust shall, no later than sixty (60) days after the Closing Date, accept a direct rollover of any such distribution to an individual employed by the Company on the date of the distribution, including any portion of such distribution attributable to employer matching contributions and any notes recording outstanding loans from the BMS Qualified Savings Plan. The Buyer Qualified Savings Plan shall provide benefits at least substantially equivalent to the savings benefits provided to similarly situated employees of Buyer and shall credit Successor Plans for purposes of eligibility and vesting all service of the Employees that was credited for such purposes under the BMS Qualified Savings Plan.
(h) Seller and its Affiliates shall retain all liabilities with respect to the provision of longsatisfying any applicable deductible or out-term disability benefits to each Employee and Former Employee who was receiving, or was eligible to receive, benefits under the BMS Longof-Term Disability Plan as of the Closing Date owing to a qualifying disability incurred prior to the Closing Date. Buyer shall assume all liabilities with respect to the provision of long-term disability benefits to each Employee who was receiving, or was eligible to receive, short-term disability benefits under the BMS Short-Term Disability Plan as of the Closing Date owing to a qualifying disability incurred by such Employee prior to the Closing Date and who is determined after the Closing Date to be qualified for long-term disability benefits as the result of such disability.
(i) Each Employee with accrued benefits in the Seller Nonqualified Pension Plan shall be fully vested in such benefits as of the Closing Date. Each Employee with a balance in his or her accounts in the BMS Nonqualified Savings Plan shall be fully vested in such benefits as of the Closing Date. Seller and its Affiliates shall assume all liabilities with respect to the provision of nonqualified pension and savings benefits to the extent such liabilities were accrued by Employees or Former Employees prior to the Closing Date.
(j) As of the Closing Date, with respect to all employee liabilities or obligations not otherwise provided for in this Agreement (including any liability or obligation relating to or arising pocket requirements under any Successor Plans to which such employee benefit is transferred, as if those deductibles or compensation plan, fund, agreement or arrangement, accrued wages, and workers’ compensation, holiday, vacation and sick day benefits), Seller and its Affiliates shall assume and be solely responsible for all liabilities and obligations with respect to Former Employees, and Buyer or the Company shall assume and be solely responsible for all liabilities and obligations with respect to current Employees.
(k) As of the Closing Date, Buyer shall cause any preexisting condition, restriction, or waiting period to be waived to the extent necessary to provide immediate coverage to any Employee for any employee benefit provided under any employee benefit plan of Buyer, any subsidiary of Buyer or the Company. Any such plan that is a medical plan will apply any amounts co-payments had in fact been paid under a medical plan of the Company, Seller or an Affiliate by an Employee as a deductible or co–payment during the year in which the Closing Date occurs toward the deductible and other out–of–pocket limits of the medical plan of Buyer, a subsidiary of Buyer or the Companythose Successor Plans.
(l) The Company shall assume liability with respect to any damages, losses, costs and expenses incurred as a result of a claim by any Employee under law (including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1990, the Equal Pay Act, the Americans with Disabilities Act of 1990 and ERISA), under common law, in equity (including wrongful discharge) or under any agreement, policy or promise, written or oral, formal or informal, between Seller or an Affiliate and an Employee. Seller and its Affiliates shall assume liability with respect to any damages, losses, costs and expenses incurred as a result of a claim by any Former Employee that arises under law, under common law, in equity or under any agreement, policy or promise between Seller or an Affiliate and a Former Employee of the Company.
(m) All liabilities retained, assumed or indemnified by Buyer or Seller or any of their Affiliates pursuant to this Section 9.01 shall be subject to the limitations and indemnification provisions set forth in Article XI of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (CRC Health CORP)
Employee and Related Matters. (ai) Buyer will As soon as practicable after the Effective Time (the “Benefits Date”), Parent shall provide, or cause the employment to be provided, employee benefit plans, programs and arrangements to employees of all Employees by the Company to be continued with the Company after the Closing Date. If the employment of any Employee with the Company is terminated after the Closing Date, Buyer shall be responsible for any costs and consequences of such termination, which costs and consequences shall be expenses subject to an indemnification claim as provided in Article XI of this Agreement.
(b) On and after the Closing Date, Buyer shall, or shall cause the Company or a subsidiary of Buyer to, offer compensation and benefits to the Employees that are substantially similar in the aggregate to the compensation and benefits provided those made generally available to similarly situated employees of Buyer in Parent employees. From the year prior Effective Time to the Closing Date. Notwithstanding Benefits Date (which the foregoingparties acknowledge may occur on different dates with respect to different plans, for a period programs or arrangements of at least twelve (12) months following the Closing DateCompany), Buyer shalland to the extent permissible under Parent’s employee benefit plans, programs and arrangements, Parent shall provide or shall cause to be provided substantially similar non-equity based employee benefit plans, programs and arrangements to the Company or a subsidiary employees of the Company to, offer severance benefits to each Employee, which benefits shall be substantially similar to the severance benefits provided under the B▇▇▇▇▇▇-▇▇▇▇▇ Squibb Pharma Company Termination Allowance Plan to each such Employee as were in effect for them immediately prior to the Closing DateEffective Time. Each employee of the Company who continues to be employed by Parent or any of its subsidiaries (including the Surviving Corporation) immediately following the Effective Time shall, taking into account to the extent permitted by law and applicable tax qualification requirements and the terms of Parent’s plans, and subject to any generally applicable break in service credited or similar rule, receive credit for purposes of eligibility to each such Employee participate and vesting under such Termination Allowance Plan immediately any substantially similar plans of Parent for years of service with the Company (or, if applicable, predecessor entities) prior to the Closing DateEffective Time. In addition, except to for purposes of determining the extent severance benefits are provided in an employment agreement between Buyer amount of vacation pay accruable by any such continuing employee for periods from and after the Effective Time, credit shall be given under the terms of the applicable vacation plan of Parent or the Company and any Key Employee, which agreement is effective as Surviving Corporation for such employee’s period of the Closing Date.
(c) Buyer shall assume, or cause the Company to assume, the obligation to make any payments due to Employees on or after the Closing Date under all termination plans and employment, severance and change-in-control agreements and arrangements described in Section 9.01(c) of the Seller Disclosure Schedule in effect immediately prior to the Closing Date whether or not the event that triggers any such payment occurs prior to, on or after the Closing Date. The Closing shall be treated as a “change in control” for all purposes under such plans, agreements and arrangements.
(d) Except as set forth in Section 9.01(c), Seller and its Affiliates shall retain the obligation to make any payments to Employees relating to service with the Company prior to the Closing Date Effective Time.
(ii) To the extent permissible under such welfare benefit plans, all welfare benefit plans of Parent or any Plan of its subsidiaries (including the Surviving Corporation) in which is a compensation plan the Company employees participate after the Effective Time shall provide coverage for pre-existing health conditions to the same extent those conditions were covered under the applicable plans or arrangement. Seller programs of the Company immediately prior to the Effective Time, and its Affiliates all limitations as to pre-existing conditions, exclusions and waiting periods shall retain all liabilities accordingly be waived with respect to participation and coverage under those plans, other than limitations or waiting periods already in effect with respect to one or more Company employees immediately prior to the BEffective Time. In addition, to the extent permissible under such welfare benefit plans, under each such welfare benefit plan of Parent or any of its subsidiaries (including the Surviving Corporation), the outstanding claims and expenses incurred by the Company employees under each corresponding welfare benefit plan of the Company for the portion of the plan year preceding the Effective Time shall be recognized, and the Company employees shall be given credit for amounts paid by them under each corresponding benefit plan of the Company, for the portion of the plan year preceding the Effective Time, 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 successor welfare benefit plan of Parent or any of its subsidiaries (including the Surviving Corporation).
(iii) E▇▇▇ ▇▇▇▇▇▇, in consideration of his service as a consultant of Parent and, subject to the issuance of the shares of Series D Preferred Stock referred to in Section 1.3(h), in full discharge of all his rights (other than with respect to severance benefits) and entitlement to both an equity interest in the Company and the acquisition bonus attributable to that equity interest pursuant to the provisions of his January 7, 2002 Letter Agreement with the Company, shall be issued a stock bonus of fully-vested shares of Parent Common Stock promptly following the Effective Time (the “Bonus Shares”). The total number of Bonus Shares to be issued to M▇. ▇▇▇▇▇▇ Squibb Pharma Company Supplemental Retention Program and the Annual Variable Compensation Plan.
(e) Each Employee with accrued benefits in the Seller Qualified Pension Plan shall be fully vested in such benefits as equal to 38,925. The issuance of the Closing Date. No assets or liabilities Bonus Shares shall be transferred from the Seller Qualified Pension Plan subject to Buyer or M▇. ▇▇▇▇▇▇’▇ execution and delivery to the Company or of a release required pursuant to any plan or arrangement sponsored by Buyer or the Company as a result of any transaction contemplated by this Agreement.
(f) Effective immediately prior to the Closing, Seller and its Affiliates shall take all actions necessary to cause the Company to cease to be a participating employer in any employee benefit plan maintained or sponsored by Seller or another ERISA Affiliate and, with respect to any employee benefit plan sponsored solely by the Company, the Company shall, effective immediately prior to the Closing, take all actions necessary either to terminate such employee benefit plan or to have the sponsorship of such employee benefit plan assumed by Seller.
(g) Each Employee with a balance in his or her accounts in the BMS Qualified Savings Plan Section 1.3(h). The Bonus Shares shall be fully vested issued under Parent’s 2000 Equity Incentive Plan and thereby registered under Parent’s Registration Statement on Form S-8. M▇. ▇▇▇▇▇▇ may arrange with Parent, in connection with such accounts as issuance, an immediate sale of a portion of the Closing Date. Each Employee who participates in the BMS Qualified Savings Plan shall have the right issued shares to elect to receive a distribution of the Employee’s entire account balance in the BMS Qualified Savings Plan, subject to the terms of the BMS Qualified Savings Plan satisfy his federal and Applicable Law. Buyer shall establish or designate a defined contribution plan state income and trust (the “Buyer Qualified Savings Plan”) that is qualified under section 401(a) of the Code and exempt from taxation under section 501(a) of the Code, which trust shall, no later than sixty (60) days after the Closing Date, accept a direct rollover of any such distribution to an individual employed by the Company on the date of the distribution, including any portion of such distribution attributable to employer matching contributions and any notes recording outstanding loans from the BMS Qualified Savings Plan. The Buyer Qualified Savings Plan shall provide benefits at least substantially equivalent to the savings benefits provided to similarly situated employees of Buyer and shall credit for purposes of eligibility and vesting all service of the Employees that was credited for such purposes under the BMS Qualified Savings Plan.
(h) Seller and its Affiliates shall retain all liabilities employment withholding tax liability with respect to the provision of long-term disability benefits to each Employee and Former Employee who was receiving, or was eligible to receive, benefits under the BMS Long-Term Disability Plan as of the Closing Date owing to a qualifying disability incurred prior to the Closing Date. Buyer shall assume all liabilities with respect to the provision of long-term disability benefits to each Employee who was receiving, or was eligible to receive, short-term disability benefits under the BMS Short-Term Disability Plan as of the Closing Date owing to a qualifying disability incurred by such Employee prior to the Closing Date and who is determined after the Closing Date to be qualified for long-term disability benefits as the result of such disabilityissued shares.
(i) Each Employee with accrued benefits in the Seller Nonqualified Pension Plan shall be fully vested in such benefits as of the Closing Date. Each Employee with a balance in his or her accounts in the BMS Nonqualified Savings Plan shall be fully vested in such benefits as of the Closing Date. Seller and its Affiliates shall assume all liabilities with respect to the provision of nonqualified pension and savings benefits to the extent such liabilities were accrued by Employees or Former Employees prior to the Closing Date.
(j) As of the Closing Date, with respect to all employee liabilities or obligations not otherwise provided for in this Agreement (including any liability or obligation relating to or arising under any employee benefit or compensation plan, fund, agreement or arrangement, accrued wages, and workers’ compensation, holiday, vacation and sick day benefits), Seller and its Affiliates shall assume and be solely responsible for all liabilities and obligations with respect to Former Employees, and Buyer or the Company shall assume and be solely responsible for all liabilities and obligations with respect to current Employees.
(k) As of the Closing Date, Buyer shall cause any preexisting condition, restriction, or waiting period to be waived to the extent necessary to provide immediate coverage to any Employee for any employee benefit provided under any employee benefit plan of Buyer, any subsidiary of Buyer or the Company. Any such plan that is a medical plan will apply any amounts paid under a medical plan of the Company, Seller or an Affiliate by an Employee as a deductible or co–payment during the year in which the Closing Date occurs toward the deductible and other out–of–pocket limits of the medical plan of Buyer, a subsidiary of Buyer or the Company.
(l) The Company shall assume liability with respect to any damages, losses, costs and expenses incurred as a result of a claim by any Employee under law (including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1990, the Equal Pay Act, the Americans with Disabilities Act of 1990 and ERISA), under common law, in equity (including wrongful discharge) or under any agreement, policy or promise, written or oral, formal or informal, between Seller or an Affiliate and an Employee. Seller and its Affiliates shall assume liability with respect to any damages, losses, costs and expenses incurred as a result of a claim by any Former Employee that arises under law, under common law, in equity or under any agreement, policy or promise between Seller or an Affiliate and a Former Employee of the Company.
(m) All liabilities retained, assumed or indemnified by Buyer or Seller or any of their Affiliates pursuant to this Section 9.01 shall be subject to the limitations and indemnification provisions set forth in Article XI of this Agreement.
Appears in 1 contract
Employee and Related Matters. (a) Buyer will shall, and shall cause the employment of its Affiliates to, credit each Company Employee with all Employees service credited to such Company Employee by the Company to be continued with as of the Closing Date for all purposes under Buyer’s Benefit Programs and shall provide that Company after Employees may commence participation under employee benefit plans, programs, policies, agreements, or arrangements offered by Buyer or its Affiliates (“Buyer’s Benefit Programs”) immediately upon the Closing Date. If the employment Buyer shall waive, or shall use commercially reasonable efforts to cause to be waived, all pre-existing condition exclusions, evidence of any Employee insurability requirements, actively at work requirements, waiting periods, and similar requirements for participation and coverage applicable under Buyer’s Benefit Programs with the respect to Company is terminated after Employees and their dependents. Buyer shall use commercially reasonable efforts to credit, or shall cause to be credited, Company Employees with all amounts paid prior to the Closing DateDate with respect to each Company Benefit Program that is a welfare benefit plan for purposes of satisfying all applicable deductible, Buyer shall be responsible coinsurance, and out-of-pocket requirements for any costs and consequences of the plan year that includes the Closing Date under each applicable Buyer’s Benefit Plan as if such termination, which costs and consequences shall be expenses subject amounts had been paid with respect to an indemnification claim as provided in Article XI of this Agreementsuch Buyer’s Benefit Program.
(b) On and after the Closing Date, Buyer shall, or and shall cause the Company or a subsidiary of Buyer its Affiliates to, offer compensation honor, recognize and benefits permit each Company Employee to the Employees that are substantially similar in the aggregate use and/or have available to the compensation use all accrued but unused vacation and benefits provided to similarly situated employees of Buyer in the year prior to the Closing Date. Notwithstanding the foregoing, for a period of at least twelve (12) months following the Closing Date, Buyer shall, or shall cause the Company or a subsidiary of the Company to, offer severance benefits to each Employee, which benefits shall be substantially similar to the severance benefits provided under the B▇▇▇▇▇▇-▇▇▇▇▇ Squibb Pharma Company Termination Allowance Plan to each such Employee immediately prior to the Closing Date, taking into account the service credited to each such Employee under such Termination Allowance Plan immediately prior to the Closing Date, except to the extent severance benefits are provided in an employment agreement between Buyer or the Company and any Key Employee, which agreement is effective paid time off as of the Closing Date.
(c) Buyer Regardless of anything else contained herein, this Section 6.3 shall assumenot be construed to amend any Company Benefit Plans or any other plans, policies, programs, agreements, or cause arrangements or create any rights or obligations except between the parties to this Agreement. No Company Employee or other Person not a party to assume, the obligation to make any payments due to Employees on or after the Closing Date under all termination plans and employment, severance and change-in-control agreements and arrangements described in Section 9.01(c) of the Seller Disclosure Schedule in effect immediately prior to the Closing Date whether or not the event that triggers any such payment occurs prior to, on or after the Closing Date. The Closing this Agreement shall be treated as a “change in control” for all purposes under such plans, agreements and arrangementsentitled to assert any claim hereunder.
(d) Except as set forth in Section 9.01(c), Seller and its Affiliates shall retain the obligation to make any payments to Employees relating to service with the Company prior to the Closing Date under any Plan which is a compensation plan or arrangement. Seller and its Affiliates shall retain all liabilities with respect to the B▇▇▇▇▇▇-▇▇▇▇▇ Squibb Pharma Company Supplemental Retention Program and the Annual Variable Compensation Plan.
(e) Each Employee with accrued benefits in the Seller Qualified Pension Plan shall be fully vested in such benefits as of the Closing Date. No assets or liabilities shall be transferred from the Seller Qualified Pension Plan to Buyer or the Company or to any plan or arrangement sponsored by Buyer or the Company as a result of any transaction contemplated by this Agreement.
(f) Effective immediately prior to the Closing, Seller and its Affiliates shall take all actions necessary to cause the Company to cease to be a participating employer in any employee benefit plan maintained or sponsored by Seller or another ERISA Affiliate and, with respect to any employee benefit plan sponsored solely by the Company, the Company shall, effective immediately prior to the Closing, take all actions necessary either to terminate such employee benefit plan or to have the sponsorship of such employee benefit plan assumed by Seller.
(g) Each Employee with a balance in his or her accounts in the BMS Qualified Savings Plan shall be fully vested in such accounts as of the Closing Date. Each Employee who participates in the BMS Qualified Savings Plan shall have the right to elect to receive a distribution of the Employee’s entire account balance in the BMS Qualified Savings Plan, subject to the terms of the BMS Qualified Savings Plan and Applicable Law. Buyer shall establish or designate a defined contribution plan and trust (the “Buyer Qualified Savings Plan”) that is qualified under section 401(a) of the Code and exempt from taxation under section 501(a) of the Code, which trust shall, no later than sixty (60) days after the Closing Date, accept a direct rollover of any such distribution to an individual employed by the Company on the date of the distribution, including any portion of such distribution attributable to employer matching contributions and any notes recording outstanding loans from the BMS Qualified Savings Plan. The Buyer Qualified Savings Plan shall provide benefits at least substantially equivalent to the savings benefits provided to similarly situated employees of Buyer and shall credit for purposes of eligibility and vesting all service of the Employees that was credited for such purposes under the BMS Qualified Savings Plan.
(h) Seller and its Affiliates shall retain all liabilities with respect to the provision of long-term disability benefits to each Employee and Former Employee who was receiving, or was eligible to receive, benefits under the BMS Long-Term Disability Plan as of the Closing Date owing to a qualifying disability incurred prior to the Closing Date. Buyer shall assume all liabilities with respect to the provision of long-term disability benefits to each Employee who was receiving, or was eligible to receive, short-term disability benefits under the BMS Short-Term Disability Plan as of the Closing Date owing to a qualifying disability incurred by such Employee prior to the Closing Date and who is determined after the Closing Date to be qualified for long-term disability benefits as the result of such disability.
(i) Each Employee with accrued benefits in the Seller Nonqualified Pension Plan shall be fully vested in such benefits as of the Closing Date. Each Employee with a balance in his or her accounts in the BMS Nonqualified Savings Plan shall be fully vested in such benefits as of the Closing Date. Seller and its Affiliates shall assume all liabilities with respect to the provision of nonqualified pension and savings benefits to the extent such liabilities were accrued by Employees or Former Employees prior to the Closing Date.
(j) As of the Closing Date, with respect to all employee liabilities or obligations not otherwise provided for in this Agreement (including any liability or obligation relating to or arising under any employee benefit or compensation plan, fund, agreement or arrangement, accrued wages, and workers’ compensation, holiday, vacation and sick day benefits), Seller and its Affiliates shall assume and be solely responsible for all liabilities and obligations with respect to Former Employees, and Buyer or the Company shall assume and be solely responsible for all liabilities and obligations with respect to current Employees.
(k) As of the Closing Date, Buyer shall cause any preexisting condition, restriction, or waiting period to be waived to the extent necessary to provide immediate coverage to any Employee for any employee benefit provided under any employee benefit plan of Buyer, any subsidiary of Buyer or the Company. Any such plan that is a medical plan will apply any amounts paid under a medical plan of the Company, Seller or an Affiliate by an Employee as a deductible or co–payment during the year in which the Closing Date occurs toward the deductible and other out–of–pocket limits of the medical plan of Buyer, a subsidiary of Buyer or the Company.
(l) The Company shall assume liability with respect to any damages, losses, costs and expenses incurred as a result of a claim by any Employee under law (including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1990, the Equal Pay Act, the Americans with Disabilities Act of 1990 and ERISA), under common law, in equity (including wrongful discharge) or under any agreement, policy or promise, written or oral, formal or informal, between Seller or an Affiliate and an Employee. Seller and its Affiliates shall assume liability with respect to any damages, losses, costs and expenses incurred as a result of a claim by any Former Employee that arises under law, under common law, in equity or under any agreement, policy or promise between Seller or an Affiliate and a Former Employee of the Company.
(m) All liabilities retained, assumed or indemnified by Buyer or Seller or any of their Affiliates pursuant to this Section 9.01 shall be subject to the limitations and indemnification provisions set forth in Article XI of this Agreement.
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