ELIGIBILITY FOR
ENROLLMENT OF NEW EMPLOYEES UNDER BUYER'S WELFARE PLANS TO THE SAME EXTENT SUCH
SERVICE WAS CREDITED UNDER THE SIMILAR SELLER WELFARE PLAN; (II) LIMITATIONS ON
BENEFITS DUE TO PRE-EXISTING CONDITIONS SHALL BE WAIVED FOR ANY U.S.
TRANSFERRING EMPLOYEE ENROLLED IN ANY SELLER WELFARE PLAN AS OF THE CLOSING
DATE; (III) ANY OUT-OF-POCKET ANNUAL MAXIMUMS AND DEDUCTIBLES TAKEN INTO ACCOUNT
UNDER THE SELLER WELFARE PLAN FOR ANY U.S. TRANSFERRING EMPLOYEE IN THE CALENDAR
YEAR WHICH CONTAINS THE CLOSING DATE SHALL BE CREDITED UNDER BUYER'S WELFARE
PLAN FOR THE SAME CALENDAR YEAR; AND (IV) WITH RESPECT TO AGGREGATE LIFETIME
MAXIMUM BENEFITS AVAILABLE UNDER BUYER'S WELFARE PLANS, A TRANSFERRING
EMPLOYEE'S PRIOR CLAIM EXPERIENCE UNDER ANY OF SELLER WELFARE PLAN WILL NOT BE
TAKEN INTO ACCOUNT, IN EACH OF CLAUSES (I) THROUGH (IV) ABOVE, TO THE EXTENT
PERMITTED UNDER THE TERMS AND CONDITIONS OF BUYER'S WELFARE PLANS AS OF THE
CLOSING;
PROVIDED, HOWEVER, THAT IF THE ITEMS DESCRIBED IN CLAUSES (I) THROUGH
(IV) ABOVE ARE NOT PERMITTED UNDER THE TERMS AND CONDITIONS OF BUYER'S WELFARE
PLANS, BUYER AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO NEGOTIATE WITH ITS
INSURANCE CARRIERS TO EFFECTUATE THE INTENT OF CLAUSES (I) THROUGH (IV) ABOVE,
TO THE EXTENT DOING SO DOES NOT RESULT IN SIGNIFICANT COST TO BUYER, AS
DETERMINED IN BUYER'S SOLE DISCRETION.
.
FOR PURPOSES OF THIS SECTION 5.8(C),
THE TERM BUYER'S WELFARE PLANS SHALL MEAN WELFARE PLANS SPONSORED OR MAINTAINED
BY BUYER OR ITS AFFILIATES AND SELLER WELFARE PLANS SHALL MEAN WELFARE PLANS
SPONSORED OR MAINTAINED BY SELLER OR ITS AFFILIATES.
(D)
SELLERS AND BUYERS SHALL COMPLY WITH THEIR
RESPECTIVE OBLIGATIONS UNDER THE TRANSFER OF UNDERTAKINGS (PROTECTION OF
EMPLOYMENT) REGULATIONS 2006 ("TUPE") IN RESPECT OF THE UK TRANSFERRING
EMPLOYEES, INCLUDING WITHOUT LIMITATION, THE SELLER'S OBLIGATION TO INFORM
AND/OR CONSULT WITH THE EMPLOYEE REPRESENTATIVES.
[***] = Confidential treatment requested for redacted portion; redacted portion
has been filed separately with the Securities and Exchange Commission.
32
(E)
SELLER COVENANT NOT TO SUE IN RESPECT OF
ANY NON-SOLICITATION, NON-COMPETITION, NON-DISCLOSURE, AND CONFIDENTIALITY
PROVISIONS OR AGREEMENTS ENTERED INTO BETWEEN ANY SELLER AND ANY TRANSFERRED
EMPLOYEE PRIOR TO CLOSING THAT WOULD RESTRICT ANY TRANSFERRED EMPLOYEE'S
EMPLOYMENT AND/OR CONDUCT IN CONNECTION AS AN EMPLOYEE OF A BUYER OR AN
AFFILIATE OF A BUYER AFTER CLOSING.
(F)
NOTHING IN THIS SECTION 5.8 IS INTENDED
TO OR SHALL CONFER UPON ANY PERSON OTHER THAN THE PARTIES TO THIS AGREEMENT AND
THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS ANY RIGHT TO EMPLOYMENT OR ANY
OTHER LEGAL OR EQUITABLE RIGHT, BENEFIT OR REMEDY OF ANY NATURE.
Section 5.9
MIVA, Findwhat, Searchfeed, and
eSpotting Names.
(a)
Within 90 days of the date hereof, MIVA
agrees to take or cause to be taken such actions as are required to change the
respective names of MIVA, Inc. and any of its Affiliates or any name being used
by the Sellers or any of their Affiliates (including any name used for "doing
business as" purposes) in MIVA's or such Affiliate's jurisdiction of
organization and in any state or