credited with his or her years of service with MyoKardia and its subsidiaries and their respective predecessors before the Merger Effective Time for purposes of benefit accruals under any defined benefit pension plans or any retiree medical or life insurance or other welfare-type benefits, or for any purposes under any equity or equity-based plans, that are maintained by Parent and its subsidiaries;
(d)
Parent will, or will cause the surviving corporation to, use commercially reasonable efforts to, waive, or cause to be waived, any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any group health benefit plan maintained by Parent or any of its subsidiaries in which Continuing Employees (and their eligible dependents) will be eligible to participate from and after the Merger Effective Time and in the plan year in which the Merger Effective Time occurs, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Plan immediately prior to the Merger Effective Time. Parent will, or will cause the surviving corporation to, use commercially reasonable efforts to recognize the dollar amount of all co-payments, deductibles and similar expenses paid by each Continuing Employee (and his
or her covered, eligible dependents) during the plan year in which the Merger Effective Time occurs for purposes of satisfying such year’s deductible and co-payment limitations under the relevant group health benefit plans in which they will be eligible to participate from and after the Merger Effective Time and in the plan year in which the Merger Effective Time occurs;
(e) Parent acknowledges that the consummation of the Offer constitutes a “change of control”, a “change in control” or a “sale event” (or a term of similar import) for purposes of any Company Plan set forth on the MyoKardia Disclosure Letter that contains a definition of “change of control”, a “change in control” or a “sale event” (or a term of similar import), as applicable. Annual cash incentive bonuses for calendar
year 2020 and MyoKardia’s sabbatical program will be treated as set forth in the MyoKardia Disclosure Letter. For Continuing Employees for whom MyoKardia has been sponsoring their work visas and paying the related expenses, in each case as of immediately prior to the Merger Effective Time, Parent will, and will cause the surviving corporation to, during the Continuation Period, continue to sponsor such Continuing Employees’ work visas on the same terms as apply to similarly-situated employees of Parent for whom Parent sponsors work visas and in all respects subject to applicable Law;
(f) nothing contained in the “employee matters” section of the Merger Agreement, whether express or implied, will be treated as an establishment, termination, amendment or other modification of any benefit or compensation plan, program,
agreement, contract, policy or arrangement, or will limit the right of Parent, the surviving corporation or any of their affiliates to establish, amend, terminate or otherwise modify any benefit or compensation plan, program, agreement, contract, policy or arrangement following the Merger Effective Time. Nothing in the “employee matters” section of the Merger Agreement, whether express or implied, will create any rights or remedies whatsoever, including any third-party beneficiary or other rights, in any person not a party to the Merger Agreement, or will be construed to create any right to employment or service with Parent, the surviving corporation or any of its affiliates or continued employment or to any particular term or condition of employment or to limit the ability of Parent or the surviving corporation or any of their affiliates to terminate the employment or service of any service provider (including any Continuing Employee) at any time and for any
or no reason. The “employee matters” section of the Merger Agreement will not apply to Continuing Employees while they are terminated or temporarily laid off as a result of COVID-19 related circumstances.
For purposes of the Merger Agreement, “Company Plan” means each (a) “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (regardless of whether such plan is subject to ERISA), (b) stock option, stock purchase, stock appreciation right or other stock-based or equity-based plan, program, policy, contract, agreement or other arrangement, (c) employment, individual consulting, severance, termination, retention, change in control or other similar agreement or (d) other benefit or compensation
plan, policy, program, practice, arrangement, contract, promise or agreement, whether written or unwritten, including bonus, incentive, deferred compensation, profit-sharing, retirement, post-retirement, vacation, severance or termination pay, retention, change in control, pension, hospitalization, medical, dental or vision benefits, vacation, life insurance, death benefit, sick pay, disability benefit, educational assistance, holiday pay, housing assistance, moving expense reimbursement, or fringe-benefit plan, program, policy, agreement or other arrangement, in each case that is sponsored, maintained or contributed or required to be contributed to by MyoKardia or any of its subsidiaries, or under or with respect to which MyoKardia or any of its subsidiaries has or would reasonably be expected to have any current or contingent liability or obligation, except in each case any of the foregoing that are sponsored or maintained pursuant to applicable Law.
