TO THE
CLOSING (THE "RELEASE").
(B)
IN THE EVENT THAT THE RELEASE IS NOT DELIVERED BY SPHERIS
INDIA TO EACH SELLER PRIOR TO THE CLOSING PURSUANT TO SECTION 5.10(A), AFTER THE
CLOSING, CBAY SHALL CAUSE SPHERIS INDIA TO PROMPTLY UPON THE REQUEST OF ANY
SELLER (AND IN ANY EVENT WITHIN TWO (2) BUSINESS DAYS OF SUCH REQUEST) DELIVER
THE RELEASE TO THE SELLERS.
SECTION 5.11
CERTAIN MATTERS RELATING TO NORTH AMERICAN EMPLOYEES.
(A)
AT LEAST FIVE (5) DAYS PRIOR TO THE CLOSING DATE, MEDQUIST
AND/OR, AS APPLICABLE, ONE OR MORE MEDQUIST DESIGNEES WILL OFFER EMPLOYMENT TO
THE SELLERS' CURRENT, ACTIVE EMPLOYEES WHO ARE EMPLOYED IN THE UNITED STATES OR
CANADA AS OF IMMEDIATELY PRIOR TO THE CLOSING DATE (EACH, A "NORTH AMERICAN
EMPLOYEE," AND TOGETHER, THE "NORTH AMERICAN EMPLOYEES"), EXCEPT AS SET FORTH ON
SCHEDULE 5.11(A) OF THE PURCHASER SCHEDULE, WHICH OFFERS SHALL BE EFFECTIVE AS
OF THE CLOSING DATE.
FOR THE AVOIDANCE OF DOUBT, ACTIVE EMPLOYEES SHALL EXCLUDE
PERSONS RECEIVING DISABILITY BENEFITS AS OF THE DATE ON WHICH SUCH OFFERS OF
EMPLOYMENT ARE MADE.
EACH SUCH OFFER OF EMPLOYMENT SHALL PROVIDE FOR A PLACE OF
EMPLOYMENT WHICH IS NOT A MATERIALLY GREATER COMMUTING DISTANCE FROM THE
APPLICABLE NORTH AMERICAN EMPLOYEE'S RESIDENCE AS OF THE CLOSING DATE AND SHALL
BE (I) SUBJECT TO SUCH COMPENSATION AND OTHER TERMS OF EMPLOYMENT AS MEDQUIST
SHALL DETERMINE IN ITS SOLE DISCRETION AND (II) CONTINGENT ON SUCH NORTH
AMERICAN EMPLOYEE'S WAIVER OF ANY CLAIMS TO TERMINATION PAYMENTS AGAINST THE
SELLERS' BANKRUPTCY ESTATE.
EACH SUCH NORTH AMERICAN EMPLOYEE WHO ACCEPTS AN
OFFER OF EMPLOYMENT FROM MEDQUIST OR A MEDQUIST DESIGNEE AND IS HIRED BY
MEDQUIST OR A MEDQUIST DESIGNEE IS REFERRED TO HEREIN AS A "NORTH AMERICAN
TRANSFERRED EMPLOYEE."
(B)
NOTWITHSTANDING SECTION 5.11(A), NOTHING HEREIN EXPRESSED OR
IMPLIED SHALL CONFER UPON ANY OF THE NORTH AMERICAN EMPLOYEES OF ANY SELLER OR
ANY NORTH AMERICAN TRANSFERRED EMPLOYEES ANY RIGHT TO EMPLOYMENT OR CONTINUED
EMPLOYMENT FOR ANY SPECIFIED PERIOD, OF ANY NATURE OR KIND WHATSOEVER UNDER OR
BY REASON OF THIS AGREEMENT.
(C)
NEITHER MEDQUIST, NOR ANY MEDQUIST DESIGNEE NOR ANY AFFILIATE
OF MEDQUIST SHALL HAVE ANY LIABILITY WHATSOEVER FOR (I) ANY COMPENSATION OR
OTHER OBLIGATIONS PURPORTED TO BE OWING TO ANY NORTH AMERICAN EMPLOYEE BY ANY
SELLER, INCLUDING ANY SEVERANCE, SEPARATION PAY, CHANGE OF CONTROL PAYMENTS OR
BENEFITS, RETENTION PAYMENTS OR ANY OTHER PAYMENTS OR BENEFITS ARISING IN
CONNECTION WITH THE TERMINATION OF SUCH NORTH AMERICAN EMPLOYEE'S EMPLOYMENT BY
ANY SELLER BEFORE, ON OR AFTER THE CLOSING DATE, EXCEPT FOR ANY PAYMENTS
PURSUANT TO THE KEY EMPLOYEE INCENTIVE PLAN AND THE ASSUMED PTO LIABILITIES, OR
(II) ANY ACTION UNDER WARN BY ANY PAST OR PRESENT EMPLOYEE OF ANY SELLER OR
AFFILIATE THEREOF (WHETHER OR NOT A NORTH AMERICAN TRANSFERRED EMPLOYEE) IN
CONNECTION WITH SELLERS' CONDUCT, INCLUDING ANY PLANT CLOSING OR MASS LAYOFF.
AS SOON AS REASONABLY PRACTICABLE FOLLOWING MEDQUIST'S REQUEST, SELLERS SHALL
REASONABLY PROVIDE MEDQUIST WITH SUCH INFORMATION AS IS NECESSARY TO DETERMINE
WHETHER ANY ACTIONS TAKEN BY SELLERS OR THEIR APPLICABLE AFFILIATES PRIOR TO THE