RESPECT TO SELLER
GROUP'S HEALTH PLANS.
(C)
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