Form Apa - Asset Purchase Agreement Page 28
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461
(d)
Welfare Plans and Benefit Arrangements
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(i)
Generally. The Closing Date shall be the date of
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"termination of employment" of each Transferred Employee under each Welfare Plan and
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each Benefit Arrangement and shall be the date of cessation of participation of each
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Covered Person under all Welfare Plans and also under all Benefit Arrangements with
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respect to which no contrary provisions are made in this Section 9.3. Except as set forth
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below, to the extent that any such Welfare Plans and Benefit Arrangements have incurred
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claims on or before the Closing Date which have not been paid by the Closing Date, such
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incurred but unpaid claims shall be paid after the Closing Date by Seller or its ERISA
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Affiliates.
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(ii)
Retiree Medical. Any Transferred Employee who as of
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the Closing Date satisfies the age, service and other eligibility requirements for retiree
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health coverage and retiree life insurance under any Welfare Benefit Plan shall be
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provided by Seller and/or its ERISA Affiliates with an opportunity to elect to commence
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such retiree health coverage and retiree life insurance under such plan as of the Closing
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Date, provided that such Transferred Employee makes a timely election for such
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coverage or insurance not later thirty (30) days after the Closing Date. Such coverage
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and insurance shall be subject to all the terms and conditions of the relevant Welfare
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Benefit Plans, including the rights of the Seller and/or its ERISA Affiliates to amend or
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terminate such plans. The cost of providing such coverage shall be borne by Seller
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and/or its ERISA Affiliates. Except as otherwise set forth above, any retiree medical
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coverage and retiree life insurance for any Transferred Employee, or their dependents or
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qualified beneficiaries, shall be the sole responsibility of Buyer.
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(iii)
Buyer's Plans. Immediately after the Closing Date,
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Buyer shall extend coverage under its health plan to all Transferred Employees, and to all
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other Covered Persons with respect to such Transferred Employees, who were covered
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under a health plan of the Seller immediately prior to the Closing Date. In addition,
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Buyer shall provide all Transferred Employees with coverage under plans and benefit
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arrangements which are generally comparable to those which Buyer currently provides to
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its similarly situated employees. All such coverages will be under the same terms and
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conditions as generally apply to similarly situated employees of the Buyer. However,
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Buyer shall waive any "preexisting condition" exclusion or "actively at work"
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requirement which would cause any of the Covered Persons or any existing medical
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condition of the Covered Persons to be excluded from its health plans.
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Buyer shall recognize all prior service of the Transferred Employees that
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Seller recognized under its Welfare Benefit Plans, Pension Plans and Benefit
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Arrangements for the purposes of vesting and eligibility to participate under Buyer's
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Welfare Benefit Plans, Pension Plans and Benefit Arrangements. Buyer agrees to
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coordinate deductibles, maximum benefit restrictions and "out-of-pocket" maximums so
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that (A) Transferred Employees receive credit toward any deductibles under Buyer's
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Welfare Plans for deductibles paid under Seller's Welfare Plans during the coverage year
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in which the employment transfer occurs and (B) Transferred Employees receive credit
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for eligible claims incurred under the Seller's Welfare Benefit Plans during the coverage
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Form APA.doc
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