Incredimail 2011 Annual Report Download - page 198

(b) In addition, during the Pre-
Closing Period, the Company shall provide notice to Parent and reasonable opportunity to review the substance of any
press release that the Company proposes to issue, to the extent not governed by Section 6.2(a); provided, however, that the Company shall be entitled to issue any
press release not governed by Section 6.2(a) in its sole discretion.
6.3 Reasonable Best Efforts . During the Pre-
Closing Period, (a) the Company shall use its reasonable best efforts to cause the conditions set forth in
Section 7 to be satisfied on a timely basis, and (b) Purchaser shall use its reasonable best efforts to cause the conditions set forth in Section 8 and assist the Company
in causing the condition set forth in Section 7.11, to be satisfied on a timely basis.
6.4 Employment Matters .
(a) The Company acknowledges and agrees that, notwithstanding any confidentiality, non-
compete or intellectual property ownership
obligations of any Service Provider, the Service Providers shall be permitted to engage in the business of the Company on behalf of Parent, Purchaser and the
Surviving Corporation.
(b) The Company shall continue to pay until the Closing Date all salaries, benefits and other entitlements to its Service Providers in a timely
manner. The Company shall continue to set aside until the Closing Date all benefits under the Company Employee Plans to which any Employee or former Employee
is or may be entitled including, inter alia , severance pay, termination notice, accrued and unpaid vacation days, leave and health.
(c) For a period beginning on the Effective Time and ending on the last day of the calendar year in which the Closing occurs (the “
Benefits
Period ”),
Purchaser shall maintain the Company Employee Plans (not including the Stock Option Plans) in effect as of the Closing Date, or, alternatively, provide the
Employees of the Company who remain employed by the Company or the Surviving Corporation or one of its subsidiaries after the Effective Time (collectively, the “
Continuing Employees ”)
with benefits that are not materially less favorable in the aggregate as those provided to the employees of the Company as of the Closing
Date under the Company’s “employee welfare benefit plans” as defined in Section 3(1) of ERISA and “employee pension benefit plans”
as defined in Section 3(2) of
ERISA. During the Benefits Period, Purchaser shall, in the case of any Continuing Employees who become employed by the Surviving Corporation, (i) for purposes
of determining eligibility, vesting and benefit accrual (including for purposes of vacation accrual) under any Company Employee Plans sponsored by the Purchaser in
which the Continuing Employees begin to participate (other than a defined benefit plan) (“ Purchaser Employee Plans ”),
and to the extent permitted by such
Purchaser Employee Plans and applicable law, Purchaser shall use commercially reasonable efforts to cause such Continuing Employees to receive service credit
under each Purchaser Employee Plan (other than a defined benefit plan) for their period of service with the Company prior to the Closing to the same extent as was
recognized under the Company’
s corollary Company Employee Plan, except where doing so would cause a duplication of benefits; (ii) all vacation accrued by
Continuing Employees under the vacation policies of the Company shall be carried over by Purchaser and shall be permitted to be maintained up to the levels
permitted under the applicable policy of the Company; (iii) Purchaser shall use commercially reasonable efforts to cause any insurer to waive all limitations as to
preexisting conditions exclusions (or actively at work or similar limitations), evidence of insurability requirements and waiting periods with respect to participation
and coverage requirements applicable to the Continuing Employees and their eligible dependents under any medical, dental and vision plans sponsored by the
Purchaser that such Continuing Employees may be eligible to participate in during the Benefits Period; and (iv) Purchaser shall use commercially reasonable efforts to
cause any insurer to provide Continuing Employees and their eligible dependents with credit for any co-payments, deductibles, offsets and maximum out-of-
pocket
requirements (or similar payments) made under the Company Employee Plans for the year in which the Closing occurs under Purchaser’
s medical, dental and vision
plans for the purposes of satisfying any applicable deductible, out-of-pocket, maximum out-of-
pocket requirements or similar requirements under any Purchaser plan
in the year in which the Closing occurs. For the calendar year following the year in which the Closing occurs, Purchaser shall consult with the Company’
s chief
executive officer to determine the benefit plans for the Continuing Employees.
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