40
HOURS FOR EACH EXEMPT HIRED EMPLOYEE) EXCEPT TO THE EXTENT CONSTITUTING ASSUMED
LIABILITIES OR ADDITIONAL LIABILITIES, AND (IV) ALL RETENTION,
CHANGE-OF-CONTROL, SEVERANCE PAYMENTS OR DEFERRED COMPENSATION ACCOUNT BALANCES,
INCLUDING, WITHOUT, LIMITATION, SENIORITY PREMIUMS AND UNPAID HOLIDAYS, IF ANY,
DUE TO SUCH HIRED EMPLOYEES AS A RESULT OF THE TERMINATION OF THEIR EMPLOYMENT
35
with the Seller. The Seller shall also be responsible for and shall pay any
related payroll burden (including, without limitation, FICA, IMSS and other
employment taxes) with respect to payments made under this Section 10.1(c).
Notwithstanding anything herein to the contrary, and unless otherwise required
under Seller's employee benefit policies or Law, Seller shall not be responsible
for any "sick bank" pay accumulated by any Hired Employee as of the close of
business on the Closing Date.
(D)
THE PURCHASER SHALL BE SOLELY RESPONSIBLE FOR ALL WAGES, BONUSES
AND OTHER REMUNERATION PAYABLE TO THE HIRED EMPLOYEES WITH RESPECT TO WORK
PERFORMED ON AND AFTER THE CLOSING DATE, INCLUDING ANY AMOUNTS PAYABLE WITH
RESPECT TO SUCH PERIOD IN RESPECT OF VACATION PAY, SICK LEAVE PAY AND FLOATING
HOLIDAY PAY, AND ANY SEVERANCE PAYMENTS PAYABLE TO SUCH HIRED EMPLOYEES IN
RESPECT OF THEIR EMPLOYMENT BY THE PURCHASER. THE PURCHASER SHALL ALSO BE
RESPONSIBLE FOR AND SHALL PAY ANY RELATED PAYROLL BURDEN (INCLUDING, WITHOUT
LIMITATION, FICA, IMSS AND OTHER EMPLOYMENT TAXES) WITH RESPECT TO PAYMENTS MADE
UNDER THIS SECTION 10.1(D).
(E)
THE SELLER SHALL PRIOR TO OR ON THE SELLER'S NEXT PAYROLL DATE,
MAKE ALL MATCHING CONTRIBUTIONS THAT WOULD OTHERWISE BE MADE FOR THE PERIOD
PRIOR TO CLOSING (WITHOUT REGARD TO ANY YEAR-END EMPLOYMENT REQUIREMENTS) WITH
RESPECT TO THE HIRED EMPLOYEES' CONTRIBUTIONS TO THE NETBANK, INC. 401(K) PLAN.
(F)
THE SELLER SHALL REMAIN SOLELY RESPONSIBLE AND LIABLE FOR (I)
SATISFYING THE CONTINUATION COVERAGE REQUIREMENTS FOR GROUP HEALTH PLANS UNDER
PART 6 OF SUBTITLE B OF TITLE I OF ERISA AND SECTION 4980B OF THE CODE ("COBRA")
FOR ALL OF ITS FORMER EMPLOYEES (AND THEIR RESPECTIVE BENEFICIARIES AND
DEPENDENTS) WHO ARE RECEIVING COBRA CONTINUATION COVERAGE AS OF THE SEVERANCE
DATE AND FOR ALL CURRENT AND FORMER EMPLOYEES OF THE SELLER (AND THEIR
RESPECTIVE BENEFICIARIES AND DEPENDENTS) WHO ARE ENTITLED TO ELECT SUCH COVERAGE
ON ACCOUNT OF A QUALIFYING EVENT OCCURRING ON OR BEFORE THE HIRE DATE.
(G)
THIS AGREEMENT IS A COVENANT BETWEEN PURCHASER AND THE SELLER AND
SHALL NOT, IN ANY MANNER, CREATE ANY CONTRACTUAL RIGHT OF EMPLOYMENT FOR ANY
EMPLOYEE OF THE SELLER.
(H)
PURCHASER SHALL OFFER ALL SENIOR MANAGEMENT OF SELLER LISTED ON
SCHEDULE 10.1(H) PURCHASER'S STANDARD SENIOR MANAGEMENT EMPLOYMENT AGREEMENT IN
THE FORM OF EXHIBIT 10.1(H).
TO THE EXTENT NOT INCONSISTENT WITH THE EMPLOYMENT
AGREEMENT, THE PROVISIONS OF SECTION 10.1(A), (B) AND (C) SHALL APPLY WITH
RESPECT TO SENIOR MANAGEMENT.
ARTICLE XI
MISCELLANEOUS
11.1
GOVERNING LAW; RESOLUTION OF DISPUTES.
(A)
THIS AGREEMENT AND ANY OTHER ANCILLARY AGREEMENTS TO BE ENTERED
INTO BY AND AMONG THE PARTIES TO THIS AGREEMENT PURSUANT HERETO SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE