SELLER PRIOR TO THE CLOSING PURSUANT TO SECTION 5.10(A), AFTER THE
CLOSING, CBAY SHALL CAUSE SPHERIS INDIA TO PROMPTLY UPON THE REQUEST OF ANY
SELLER (AND IN ANY EVENT WITHIN TWO (2) BUSINESS DAYS OF SUCH REQUEST) DELIVER
THE RELEASE TO THE SELLERS.
SECTION 5.11
CERTAIN MATTERS RELATING TO NORTH AMERICAN EMPLOYEES.
(A)
AT LEAST FIVE (5) DAYS PRIOR TO THE CLOSING DATE, MEDQUIST
AND/OR, AS APPLICABLE, ONE OR MORE MEDQUIST DESIGNEES WILL OFFER EMPLOYMENT TO
THE SELLERS' CURRENT, ACTIVE EMPLOYEES WHO ARE EMPLOYED IN THE UNITED STATES OR
CANADA AS OF IMMEDIATELY PRIOR TO THE CLOSING DATE
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(EACH, A "NORTH AMERICAN EMPLOYEE," AND TOGETHER, THE "NORTH AMERICAN
EMPLOYEES"), EXCEPT AS SET FORTH ON SCHEDULE 5.11(A) OF THE PURCHASER SCHEDULE,
WHICH OFFERS SHALL BE EFFECTIVE AS OF THE CLOSING DATE.
FOR THE AVOIDANCE OF
DOUBT, ACTIVE EMPLOYEES SHALL EXCLUDE PERSONS RECEIVING DISABILITY BENEFITS AS
OF THE DATE ON WHICH SUCH OFFERS OF EMPLOYMENT ARE MADE.
EACH SUCH OFFER OF
EMPLOYMENT SHALL PROVIDE FOR A PLACE OF EMPLOYMENT WHICH IS NOT A MATERIALLY
GREATER COMMUTING DISTANCE FROM THE APPLICABLE NORTH AMERICAN EMPLOYEE'S
RESIDENCE AS OF THE CLOSING DATE AND SHALL BE (I) SUBJECT TO SUCH COMPENSATION
AND OTHER TERMS OF EMPLOYMENT AS MEDQUIST SHALL DETERMINE IN ITS SOLE DISCRETION
AND (II) CONTINGENT ON SUCH NORTH AMERICAN EMPLOYEE'S WAIVER OF ANY CLAIMS TO
TERMINATION PAYMENTS AGAINST THE SELLERS' BANKRUPTCY ESTATE.
EACH SUCH NORTH
AMERICAN EMPLOYEE WHO ACCEPTS AN OFFER OF EMPLOYMENT FROM MEDQUIST OR A MEDQUIST
DESIGNEE AND IS HIRED BY MEDQUIST OR A MEDQUIST DESIGNEE IS REFERRED TO HEREIN
AS A "NORTH AMERICAN TRANSFERRED EMPLOYEE."
(B)
NOTWITHSTANDING SECTION 5.11(A), NOTHING HEREIN EXPRESSED OR
IMPLIED SHALL CONFER UPON ANY OF THE NORTH AMERICAN EMPLOYEES OF ANY SELLER OR
ANY NORTH AMERICAN TRANSFERRED EMPLOYEES ANY RIGHT TO EMPLOYMENT OR CONTINUED
EMPLOYMENT FOR ANY SPECIFIED PERIOD, OF ANY NATURE OR KIND WHATSOEVER UNDER OR
BY REASON OF THIS AGREEMENT.
(C)
NEITHER MEDQUIST, NOR ANY MEDQUIST DESIGNEE NOR ANY AFFILIATE
OF MEDQUIST SHALL HAVE ANY LIABILITY WHATSOEVER FOR (I) ANY COMPENSATION OR
OTHER OBLIGATIONS PURPORTED TO BE OWING TO ANY NORTH AMERICAN EMPLOYEE BY ANY
SELLER, INCLUDING ANY SEVERANCE, SEPARATION PAY, CHANGE OF CONTROL PAYMENTS OR
BENEFITS, RETENTION PAYMENTS OR ANY OTHER PAYMENTS OR BENEFITS ARISING IN
CONNECTION WITH THE TERMINATION OF SUCH NORTH AMERICAN EMPLOYEE'S EMPLOYMENT BY
ANY SELLER BEFORE, ON OR AFTER THE CLOSING DATE, OR (II) ANY ACTION UNDER WARN
BY ANY PAST OR PRESENT EMPLOYEE OF ANY SELLER OR AFFILIATE THEREOF (WHETHER OR
NOT A NORTH AMERICAN TRANSFERRED EMPLOYEE) IN CONNECTION WITH SELLERS' CONDUCT,
INCLUDING ANY PLANT CLOSING OR MASS LAYOFF.
AS SOON AS REASONABLY PRACTICABLE
FOLLOWING MEDQUIST'S REQUEST, SELLERS SHALL REASONABLY PROVIDE MEDQUIST WITH
SUCH INFORMATION AS IS NECESSARY TO DETERMINE WHETHER ANY ACTIONS TAKEN BY
SELLERS OR THEIR APPLICABLE AFFILIATES PRIOR TO THE CLOSING DATE WILL, IF
AGGREGATED WITH ACTIONS THAT MAY BE TAKEN BY MEDQUIST OR ITS AFFILIATES AFTER
THE CLOSING DATE, REQUIRE THE PROVISION OF NOTICE OR PAYMENT IN LIEU OF NOTICE
(WHETHER UNDER WARN