BUYER SHALL PROVIDE EACH AFFECTED EMPLOYEE CREDIT, FOR PURPOSES OF ANY
SERVICE REQUIREMENTS FOR PARTICIPATION OR VESTING (AND NOT FOR BENEFIT ACCRUAL
PURPOSES), UNDER EACH EMPLOYEE BENEFIT PLAN, PROGRAM, OR ARRANGEMENT OF THE
BUYER OR ITS AFFILIATES IN WHICH SUCH EMPLOYEE IS ELIGIBLE TO PARTICIPATE, FOR
HIS OR HER PERIODS OF SERVICE WITH THE SELLER OR ANY SUBSIDIARY, AS APPROPRIATE,
CREDITED UNDER A SIMILAR PLAN, PROGRAM OR ARRANGEMENT PRIOR TO THE CLOSING DATE
OR AS REFLECTED IN SELLER'S OR ANY SUBSIDIARY'S RECORDS, AS APPLICABLE, WHICH
METHOD OF CREDITING SERVICE SHALL BE AT BUYER'S DISCRETION, SUBJECT TO
APPROPRIATE BREAK-IN-SERVICE RULES (OR OTHER APPLICABLE LEGAL RESTRICTIONS) AND
THE APPLICABLE PROVISIONS OF THE BUYER'S EMPLOYEE BENEFIT PLAN, PROGRAM OR
ARRANGEMENT AND APPLICABLE TAX QUALIFICATION REQUIREMENTS.
NOTWITHSTANDING ANY
OF THE FOREGOING TO THE CONTRARY, NONE OF THE PROVISIONS CONTAINED HEREIN SHALL
OPERATE TO DUPLICATE ANY BENEFIT PROVIDED TO ANY AFFECTED EMPLOYEE OR THE
FUNDING OF ANY SUCH BENEFIT.
(D)
NOTHING CONTAINED HEREIN, EXPRESSED OR IMPLIED, IS INTENDED TO CONFER UPON
ANY AFFECTED EMPLOYEE ANY RIGHT TO CONTINUED EMPLOYMENT FOR ANY PERIOD BY REASON
OF THIS AGREEMENT.
NOTHING CONTAINED HEREIN IS INTENDED TO CONFER UPON ANY
AFFECTED EMPLOYEE ANY PARTICULAR TERM OR CONDITION OF EMPLOYMENT OTHER THAN WITH
RESPECT TO THE PARTICULAR EMPLOYEE BENEFIT PLANS OR SEVERANCE PLANS, POLICIES OR
ARRANGEMENTS EXPRESSLY REFERRED TO IN THIS AGREEMENT.
(E)
BUYER SHALL NEITHER ASSUME NOR SUBSTITUTE FOR ANY OUTSTANDING OPTIONS TO
PURCHASE SELLER COMMON STOCK OR ANY OTHER EQUITY-BASED COMPENSATION AWARD HELD
BY AFFECTED EMPLOYEES.
AFFECTED EMPLOYEES SHALL ONLY BE ELIGIBLE TO PARTICIPATE
IN THE BUYER'S EQUITY PLANS (INCLUDING THE BUYER'S EMPLOYEE STOCK PURCHASE PLAN)
PURSUANT TO THE TERMS AND CONDITIONS OF SUCH PLANS.
(F)
SELLER AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO ENCOURAGE THE
ELIGIBLE EMPLOYEES TO ACCEPT ANY OFFERS OF EMPLOYMENT EXTENDED BY BUYER PURSUANT
TO BUYER'S STANDARD FORM OF EMPLOYMENT OFFER LETTER.
BUYER SHALL HAVE THE
RIGHT, WITHIN FORTY-FIVE (45) DAYS OF THE DATE OF THIS AGREEMENT, TO DESIGNATE
TWENTY (20) BUSINESS EMPLOYEES WITH EXPERTISE RELATED TO "VOICE OVER INTERNET
PROTOCOL" TECHNOLOGY, PRODUCTS AND SERVICES AS "DESIGNATED EMPLOYEES."
IN THE
EVENT ANY DESIGNATED EMPLOYEE REJECTS BUYER'S OFFER OF EMPLOYMENT, SUCH
DESIGNATED EMPLOYEE SHALL BECOME AN "INELIGIBLE EMPLOYEE."
SELLER MAY ELECT TO
RETAIN OR HIRE UP TO SIX INELIGIBLE EMPLOYEES WITHOUT ANY OBLIGATION TO BUYER.
HOWEVER, TO THE EXTENT SELLER RETAINS OR HIRES MORE THAN SIX INELIGIBLE
EMPLOYEES AT ANY TIME THROUGH THE ONE-YEAR ANNIVERSARY OF THE CLOSING DATE,
SELLER SHALL BE OBLIGATED TO PAY TO BUYER A SUM EQUAL TO TWELVE (12) MONTHS OF
SALARY THEN PAID BY SELLER OF EACH SUCH RETAINED OR HIRED EMPLOYEE (IN EXCESS OF
SIX).
10
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER GROUP
The Seller, on behalf of itself and each member of the Seller Group, represents
and warrants to Buyer as follows subject to such exceptions as are disclosed in
a disclosure schedule supplied by Seller to Buyer (the "Disclosure Schedules"):
SECTION 3.1
ORGANIZATION
Each member of the Seller Group is a corporation duly organized, validly