"Transferring
Employees".
(E)
TRANSFERRING EMPLOYEE BENEFITS.
WITH RESPECT TO TRANSFERRING
EMPLOYEES, SUBJECT TO APPLICABLE LAW, (I) BUYER WILL ALLOW SUCH TRANSFERRING
EMPLOYEES AND THEIR ELIGIBLE DEPENDENTS TO PARTICIPATE IN EMPLOYEE BENEFIT PLANS
MAINTAINED BY BUYER OR ITS SUBSIDIARIES ON TERMS SUBSTANTIALLY SIMILAR TO THE
TERMS OF EMPLOYEE BENEFIT PLANS MAINTAINED BY SELLERS FOR SUCH TRANSFERRING
EMPLOYEES PRIOR TO THE CLOSING; PROVIDED, HOWEVER, THAT FOREGOING SHALL NOT
INCLUDE STOCK OPTION OR OTHER EQUITY PLANS OF BUYER, (II) FOR PURPOSES OF
DETERMINING ELIGIBILITY TO PARTICIPATE, VESTING AND ENTITLEMENT TO BENEFITS
WHERE LENGTH OF SERVICE IS RELEVANT (INCLUDING FOR PURPOSES OF VACATION ACCRUAL)
UNDER ANY BUYER EMPLOYEE BENEFIT PLAN (OTHER THAN A DEFINED BENEFIT PLAN) AND
BUYER SHALL PROVIDE THAT THE TRANSFERRING EMPLOYEES SHALL RECEIVE SERVICE CREDIT
UNDER EACH BUYER EMPLOYEE BENEFIT PLAN (OTHER THAN A DEFINED BENEFIT PLAN) FOR
THEIR PERIOD OF SERVICE WITH SELLERS AND THEIR RESPECTIVE SUBSIDIARIES AND
PREDECESSORS PRIOR TO THE CLOSING, EXCEPT WHERE DOING SO WOULD CAUSE A
DUPLICATION OF BENEFITS, (III) BUYER WILL CAUSE ANY AND ALL PRE-EXISTING
CONDITION LIMITATIONS, ELIGIBILITY WAITING PERIODS AND EVIDENCE OF INSURABILITY
REQUIREMENTS UNDER ANY GROUP HEALTH PLANS OF BUYER IN WHICH SUCH TRANSFERRING
EMPLOYEES AND THEIR ELIGIBLE DEPENDENTS WILL PARTICIPATE TO BE WAIVED AND WILL
PROVIDE CREDIT FOR ANY CO-PAYMENTS AND DEDUCTIBLES PRIOR TO THE CLOSING DATE FOR
PURPOSES OF SATISFYING ANY APPLICABLE DEDUCTIBLE, OUT-OF-POCKET OR SIMILAR
REQUIREMENTS UNDER ANY SUCH PLANS THAT MAY APPLY AFTER THE CLOSING DATE, AND
(IV) ALL VACATION ACCRUED BY TRANSFERRING EMPLOYEES UNDER THE VACATION POLICIES
OF THE SELLERS OR THEIR RESPECTIVE SUBSIDIARIES OR PREDECESSORS SHALL BE CARRIED
OVER BY BUYER AND SHALL BE PERMITTED TO BE MAINTAINED UP TO THE LEVELS PERMITTED
UNDER THE APPLICABLE POLICY OF THE SELLERS OR THEIR RESPECTIVE SUBSIDIARIES OR
PREDECESSORS.
BUYER SHALL MAKE ARRANGEMENTS FOR TEMPORARY EMPLOYEES PURSUANT TO
AGENCY CONTRACTS THAT CONSTITUTE ASSIGNED CONTRACTS.
5.9
EMPLOYEE SEVERANCE.
(A)
DEFINITIONS
(I)
FOR PURPOSES OF THIS AGREEMENT, "LENOVO TERMINATION DEADLINE" MEANS
THE EARLIER OF (X) THE DATE ON WHICH THE LAST LENOVO TERMINATED EMPLOYEE IS
TERMINATED IN CONNECTION WITH A LENOVO TERMINATION AND (Y) THE DATE 365 DAYS
FOLLOWING THE CLOSING DATE.
(II)
FOR PURPOSE OF THIS AGREEMENT, "SEVERANCE PAYMENT" SHALL MEAN ANY
SEVERANCE PAID TO A TERMINATED EMPLOYEE THAT IS REQUIRED BY AN EMPLOYMENT
AGREEMENT WITH THE TERMINATED EMPLOYEE OR APPLICABLE LAW FOR ANY PERIOD OF
EMPLOYMENT WITH SELLERS PRIOR TO THE CLOSING DATE.
FOR THE AVOIDANCE OF DOUBT,
THE SEVERANCE PAYMENT SHALL NOT INCLUDE ANY AMOUNT OR SEVERANCE LIABILITY THAT
IS PAYABLE AS A RESULT OF, OR THAT ARISES FROM, A TERMINATED EMPLOYEE'S
EMPLOYMENT ON OR AFTER THE CLOSING DATE.
39
(B)
IN THE EVENT BUYER TERMINATES ANY TRANSFERRING EMPLOYEE WHO IS AN
IBM BUSINESS EMPLOYEE (AN "IBM TERMINATED EMPLOYEE") DURING THE NINETY (90) DAY
PERIOD FOLLOWING THE CLOSING DATE (THE "IBM TERMINATION DEADLINE"), BUYER SHALL
DELIVER TO SELLERS DURING THE THIRTY (30) DAY PERIOD FOLLOWING THE IBM
TERMINATION DEADLINE A NOTICE (THE "IBM TERMINATED EMPLOYEE NOTICE") SETTING
FORTH THE NAME OF EACH SUCH IBM TERMINATED EMPLOYEE, THE