Business Employees (a) Prior to the Closing, Seller shall update the information provided in Schedule 3.10(a)(i) as of the Closing Date.
(b) As of the Closing Date, Buyer shall make offers of employment to at least the number of Business Employees of Seller set forth on Schedule 5.4(b) whom shall be specifically identified by Buyer prior to the Closing and whom shall include all Business Employees located in a country that has adopted the ARD Regulations in the event Buyer has made an offer of employment to one or more Business Employees in such country (such country, an “ARD Jurisdiction”), but shall not otherwise include any Business Employee located in any country that is an ARD Jurisdiction (the “Offered Employees”). Seller and any applicable Subsidiary shall cooperate and assist in facilitating Buyer’s or a Buyer Designee’s offers and will not take any action, or cause any of the Subsidiaries to take any action, which would impede, hinder, interfere or otherwise compete with Buyer’s or a Buyer Designee’s effort to hire any Business Employees. Promptly after the date hereof, Seller will provide to Buyer all information not provided in Schedule 3.10(a) required to be disclosed by applicable Law of the jurisdiction in which the Business Employee is located in connection with the sale of the Engenio Business. To the extent permitted by applicable Law, including data privacy and data protection Laws, Seller agrees to provide Buyer with such information reasonably requested by Buyer to assist it with complying with the terms of this Section 5.4 and to assist Buyer with determining the wages paid to the Transferred Employees (as defined below) with respect to the period beginning on January 1, 2011 and ending on the Closing Date. Seller shall be responsible for any employment action related to any Business Employee who is not an Offered Employee. To the extent any notification or consultation requirements or works council negotiation procedures are imposed by applicable Law with regard to the transfer of Business Employees to Buyer or any of its Affiliates, Seller and Buyer agree to cooperate to ensure that such notification or consultation requirements or works council negotiation procedures are timely completed. Without limiting the foregoing, each Party shall comply with all applicable Laws in connection with the transfer of the Offered Employees to Buyer or a Buyer Designee, including with respect to notice, consultation and other procedural requirements. The parties will enter into an Assignment and ▇▇▇▇ of Sale and Assumption Agreement or other appropriate documentation for relevant jurisdictions outside the United States where necessary or appropriate for the transfer of such Offered Employees and shall cooperate to complete all requisite consultation and related objection periods prior to the Closing Date. Any Offered Employee who accepts Buyer’s offer of employment and commences employment with Buyer or a Buyer Designee shall be referred to as a “Transferred Employee.” Employment of the Transferred Employees with Buyer or a Buyer Designee shall be effective as of the day following the close of business on the Closing Date; provided, that with respect to Offered Employees employed outside the European Union who, as of the Closing Date, are on Seller-approved leave (the “Leave Employees”), employment with Buyer or a Buyer Designee shall be effective as of (i) with respect to Leave Employees absent due to leave that is not protected under applicable Law, within 90 days after the Closing Date or (ii) with respect to Leave Employees absent due to protected leave under applicable Law, no later than the first Business Day following the end of the protected leave period.
(c) Where terms are not dictated by applicable Law, Buyer or a Buyer Designee shall provide, or shall cause to be provided, to Transferred Employees, until at least March 31, 2012 during their employment with Buyer or a Buyer Designee, at a minimum, the same base salaries or, as applicable, base wage rates, offered by Seller or the applicable Subsidiary immediately prior to the Closing Date (but taking into account the 2011 salary increases) as set forth on Schedule 3.10(a)(i). Buyer or a Buyer Designee shall provide, or shall cause to be provided, to Transferred Employees either (at Buyer’s discretion) employee benefits that are no less favorable in the aggregate than either (i) those benefits provided to similarly situated employees of Buyer or the applicable Buyer Designee (taking into account employee’s seniority and service with Seller or Buyer or their respective Affiliates, as applicable) or (ii) the employee benefits that they were offered by Seller or the applicable Subsidiary immediately prior to the Closing Date as set forth on Schedule 3.10(b). Except as expressly set forth in this Section 5.4, no Benefit Plans or assets of any Benefit Plan shall be transferred to Buyer or any Affiliate of Buyer. Buyer will take all action necessary to ensure that, to the extent permitted under applicable Buyer or Buyer Designee Benefit Plans, such Benefit Plans shall recognize (i) for purposes of satisfying any deductibles, co-pays and out-of-pocket maximums during the coverage period that includes the Closing Date, any payment made by any Transferred Employee towards deductibles, co-pays and out-of-pocket maximums in any health or other insurance plan of Seller or a Subsidiary during the coverage period that includes the Closing Date and (ii) for purposes of determining eligibility to participate and vesting and, in the case of any Buyer severance plan or program (if any), benefit accruals, all service with Seller or a Subsidiary prior to the Closing, including service with predecessor employers that was recognized by Seller or a Subsidiary, provided that such service shall not be recognized to the extent such recognition would result in a duplication of benefits. Buyer or the applicable Buyer Designee will continue to provide tuition assistance to those Transferred Employees who are receiving such benefits as of the Closing Date for the current academic session, in each case as set forth on Schedule 5.4(c). Buyer or the applicable Buyer Designee will honor the terms and conditions of Seller’s international assignee program, including repatriation upon completion of assignment, completion bonuses, Tax equalization and Tax return preparation, with respect to Transferred Employees who are on international assignment as of the Closing Date, in each case as set forth on Schedule 5.4(c), except that these costs shall be allocated between the parties based on the portion of the international assignment occurring before or on the Closing Date (which shall be Seller’s or the applicable Subsidiary’s obligation) and after the Closing Date (which shall be Buyer’s or the applicable Buyer Designee’s obligation).
(d) Seller and Buyer intend that the transactions contemplated by this Agreement shall not constitute a severance of employment, under the terms of any Benefit Plan of Seller of any Subsidiary, of any Transferred Employee prior to or upon the consummation of the transactions contemplated hereby and that such employees will have continuous and uninterrupted employment immediately before and immediately after the Closing Date. Notwithstanding anything to the contrary in this Agreement, Buyer shall provide, at a minimum, severance benefits substantially equivalent to the benefits contained in the plans listed or as described on Schedule 5.4(d) to Transferred Employees whose employment is terminated involuntarily by Buyer on or before March 31, 2012 other than terminations in circumstances that would not require payments of severance benefits under Seller’s severance plan.
(e) To the extent permitted under applicable Buyer Benefit Plans, (i) Buyer shall use commercially reasonable efforts to waive any pre-existing condition exclusion (to the extent such exclusion was waived under applicable health and Welfare Plans offered to the Transferred Employees by Seller or a Subsidiary) and proof of insurability, and (ii) the medical and dental plans maintained by Buyer and any Affiliate of Buyer shall recognize as dependents of the Transferred Employees the dependents recognized by Seller’s or the applicable Subsidiary’s medical and dental plans.
(f) As soon as practicable following the Closing Date, Buyer shall cause one or more defined contribution savings plans intended to qualify under sections 401(a) and 401(k) of the Code (the “Buyer Savings Plan”) to provide for the receipt of Transferred Employees’ lump sum cash distributions, in the form of an eligible rollover distribution from the LSI Corporation 401(k) Plan, provided such rollovers are made at the election of the Transferred Employees and in accordance with the terms of the Buyer Savings Plan. Seller shall cause the LSI Corporation 401(k) Plan to fully vest Transferred Employees in their accounts immediately prior to the Closing and permit the Transferred Employees to elect a lump sum cash distribution of benefits accrued through the Closing Date in accordance with the Code.
(g) Seller shall make and be responsible for incentive compensation payments, if any, earned by the Transferred Employees for the period from January 1, 2011 to and including the Closing Date under the applicable incentive plans in effect for any such period (including any pro rata amount with respect to such period under a plan or program ending or vesting on or after the Closing Date). Buyer shall not assume or otherwise become liable for, and Seller shall not transfer to Buyer, any liabilities of Seller with respect to accrued but unused vacation and sabbatical leave (collectively, the “Accrued Amounts”). At the Closing, Seller shall pay to each Transferred Employee the Accrued Amount with respect to such Transferred Employee; provided, that with respect to Transferred Employees in the European Union, Seller shall pay to Buyer each such Transferred Employee’s applicable Accrued Amount, including for the avoidance of doubt, any applicable employee’s and employer’s social contributions, in each case to the extent required pursuant to applicable Law.
(h) As soon as practicable following the Closing, Seller shall provide Buyer with a schedule setting forth the number of employees and the work location of each employee of Seller or any Subsidiary in the United States who terminated employment within the ninety (90) day period prior to the Closing Date.
(i) Notwithstanding anything herein to the contrary, nothing in this Agreement shall require Buyer or a Buyer Designee to employ any Business Employees, or to employ any Transferred Employee on anything other than an at-will basis, terminable at any time with or without cause unless required otherwise under applicable Law. Nothing in this Section 5.4, expressed or implied, shall confer upon any employee or former employee of Seller or any Subsidiary or related entities (including, without limitation, the Transferred Employees) any rights or remedies (including, without limitation, any right to employment or continued employment for any specified period) of any nature or kind whatsoever, under or by reason of this Section 5.4. It is expressly agreed that the provisions of this Section 5.4 are not intended to be for the benefit of or otherwise be enforceable by, any third party, including, without limitation, any Transferred Employees. No provision of this Section 5.4 shall create any rights in any such persons in respect of any benefits that may be provided under any Benefit Plan or any plan or arrangement which may be established or maintained by Buyer, shall be construed to establish, amend, or modify an Benefit Plan or any other benefit plan, program, agreement or arrangement nor shall require Seller, Buyer or any Affiliate of Seller or Buyer to continue or amend any particular benefit plan and any such plan may be amended or terminated in accordance with its terms and applicable Law.
(j) Seller or a Subsidiary shall use reasonable commercial efforts to cause each Transferred Employee located in India to enter into a general release of claims against Seller in customary form.
Certain Contracts and Arrangements (a) Section 3.7(a) of the Transferor Disclosure Schedule sets forth a true and complete list, as of the date hereof, of the following Contracts (including currently effective amendments and modifications thereto), other than commitments to issue owner’s title insurance policies and owner’s title insurance policies, to which the Company is a party, by which any of its properties are bound or that relate to the conduct of the Business (collectively, the “Material Agreements”):
(i) agreements involving payments to or from the Company of at least $75,000 per year;
(ii) vendor or similar agreements involving payments to or from the Company in excess of $75,000 per year;
(iii) Contracts, or a group of related Contracts with the same party, for the purchase, sale or distribution of equipment, supplies, products or services, under which the undelivered balance of such equipment, supplies, products or services has a price in excess of $75,000;
(iv) Contracts, loan agreements, letters of credit, repurchase agreements, mortgages, security agreements, guarantees, pledge agreements, trust indentures, promissory notes, lines of credit and similar documents in each case relating to Indebtedness;
(v) real property leases calling for payments by the Company of amounts greater than $75,000 per year;
(vi) partnership, royalty or joint venture agreements;
(vii) Contracts limiting the ability of the Company to compete in any line of business or with any Person or in any geographic area;
(viii) Contracts relating to any outstanding commitment for capital expenditures;
(ix) (A) Collective Bargaining Agreements between the Company and any Person, (B) Employment Agreements between the Company and any Person, and (C) Contracts between the Company and any Independent Contractor and (D) the Company Plans, in each instance excluding at-will employment or Independent Contract or arrangements that may be terminated by the Company without notice and without Liability;
(x) Contracts not entered into in the ordinary course of the Business;
(xi) Contracts for the acquisition or disposition of real property, capital stock or other businesses;
(xii) Contracts providing for indemnification of any officer, employee, member, manager or director of the Company;
(xiii) agency, distributor, dealer, sales, marketing or similar agreements or arrangements with any Person that generates or refers business to the Company;
(xiv) all verbal Contracts (excluding at-will employment or Independent Contract or arrangements that may be terminated by the Company without notice and without Liability); and
(xv) Contracts not otherwise disclosed in (i) — (xiv) above that are currently in effect and to which the Company or its respective properties are bound that are material to the Business.
(b) Except to the extent that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and provided that any indemnity, contribution and exoneration provisions contained in any such Material Agreement may be limited by applicable Laws and public policy, each Material Agreement (i) to the extent that the Company is a party to such Material Agreement, constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, (ii) is in full force and effect as of the Execution Date and (iii) will be in full force and effect upon the consummation of the transactions contemplated by this Agreement.
(c) There is not under any Material Agreement any default or event, that, with notice or lapse of time or both, would reasonably be expected to constitute a default on the part of any of the parties thereto, except such events of default and other events as to which requisite waivers or consents have been obtained.
(d) The Company has not (i) received written notice of, and there has not occurred, any breach of or violation or default under any Material Agreement or any condition which with the passage of time or the giving of notice or both would result in such a violation or default under any Material Agreement, or (ii) received written notice of the desire of the other party or parties to any such Material Agreement to exercise any rights such party has to cancel, terminate, renegotiate or repudiate such contract or exercise remedies thereunder.
(e) True and complete copies of all Material Agreements to which the Company is a party or is bound have been delivered or made available to HSE by Transferor. The Company is not party to or bound by any Contract (other than the Material Agreements) that cannot be terminated by the Company on less than ninety (90) days notice without penalty.