Common use of Employee and Benefit Matters Clause in Contracts

Employee and Benefit Matters. (a) Buyer or one of its Affiliates shall offer employment to each Seller Employee within forty-five (45) days after the execution of this Agreement, and in any event prior to Closing, and to each Off-Site Employee that it wishes to offer employment within sixty (60) days after the execution of this Agreement, and in any event prior to Closing. Each such offer to a Seller Employee shall include terms and provisions determined by Buyer or its Affiliate that are consistent with the provisions of this Section 5.9 (and may be conditioned upon the occurrence of the Closing and such individual’s passage of any customary pre-employment background check and drug tests). Within sixty (60) days after the execution of this Agreement, and in any event prior to Closing, Buyer shall notify Seller as to each Seller Employee who has accepted employment with Buyer or any of its Affiliates and satisfied the applicable pre-hire requirements (each, a “Transferred Employee”), and each Seller Employee who has rejected Buyer’s offer of employment or not satisfied such requirements. Each Transferred Employee shall cease to be employed by Seller as of such Transferred Employee’s Hiring Time. Buyer shall indemnify and hold harmless Seller and its Affiliates with respect to all Liabilities arising out of Buyer’s (or any of Buyer’s Affiliates’) actions or omissions with regard to employee selection and the employment offer process described in this Section 5.9(a) (including any claim of discrimination or other illegality in such selection and offer process, and including any Liability that Seller or any of its Affiliates may incur under the U.S. Worker Adjustment and Retraining Notification Act and the regulations promulgated thereunder, or any similar state or other Law as a result of any act or omission of Buyer occurring after the Closing). The employment with Buyer or an Affiliate of Buyer of each Transferred Employee shall be effective as of the Hiring Time and shall continue for at least two years thereafter; provided, however, that on such date such Transferred Employee is actively at work or is on an active employee status (and not designated as inactive or on short-term disability leave, long-term disability leave or on other leave). With respect to each Seller Employee who fails to become a Transferred Employee as of the Closing because he or she is on inactive status (including due to any short-term disability, long-term disability or other leave), Buyer shall, or shall cause its Affiliates to, at the time such Seller Employee is ready and available to return to active employment status (so long as such date occurs within 180 days after the Closing or such additional time required by Law), provide such Seller Employee with employment in a position comparable to that which the individual had prior to the commencement of his or her absence from active employment, which employment shall continue for at least two years thereafter (the Closing or such other time each Transferred Employee otherwise begins employment with Buyer or its Affiliate, as applicable, is referred to as his or her “Hiring Time”). During the two year period commencing at Closing, Buyer shall not permit a net reduction, due to involuntary attrition, in the employment levels at each Facility below the aggregate number of Transferred Employees employed by Buyer (or Buyer’s Affiliates) immediately after the Closing. Nothing in the foregoing shall affect the right of Seller or Buyer (or Buyer’s Affiliate) to terminate the employment of a Seller Employee for cause at any time.

Employee and Benefit Matters. (a) Buyer Schedule 7.5(a) sets forth a list of certain employees of Seller or one its Affiliates (other than any member of the NOARK Group) who have provided services relating to NOARK’s business that Seller and its Affiliates shall offer make available to Buyer to discuss potential employment to each Seller Employee within forty-five with Buyer after the Closing (45) such employees being collectively the “Eligible Employees”). Within 10 days after the execution date of this Agreement, and in any event prior Buyer shall offer employment (which shall be contingent on the occurrence of the Closing) to Closingeach Eligible Employee that Buyer desires to employ, and Buyer shall notify Seller in writing of the identities of the Eligible Employees to each Off-Site Employee that it wishes to offer employment within sixty (60) days after the execution of this Agreement, and in any event prior to Closingwhom Buyer has made an offer. Each such offer of employment to a Seller Eligible Employee shall include terms and provisions determined by Buyer or its Affiliate that are be consistent with the provisions of this Section 5.9 (7.5 and may be conditioned upon shall remain open for a period of at least seven days. On or before the occurrence of date that is three Business Days prior to the Closing and such individual’s passage of any customary pre-employment background check and drug tests). Within sixty (60) days after the execution of this Agreement, and in any event prior to ClosingDate, Buyer shall notify Seller as to each Seller Eligible Employee who has accepted employment with Buyer or any of its Affiliates and satisfied the applicable pre-hire requirements (each, a “Transferred Employee”), and each Seller Eligible Employee who has rejected Buyer’s an offer of such employment. Between the date hereof and the Closing Date, Seller and its Affiliates shall provide Buyer with reasonable access to the Eligible Employees. Seller and its Affiliates shall not take any action to discourage any Eligible Employee from accepting an offer of employment from Buyer. Notwithstanding the foregoing, Buyer acknowledges that Seller will provide information to Lxxx Xxxxx and Hxxxxx Xxxxx that would outline for such Eligible Employees what their duties and compensation would be if they were to remain employees of Seller, and no such action shall be deemed to violate the provisions of the immediately preceding sentence; provided, however, that if such employees remain employees of Seller, then Seller will make such employees available to Buyer to provide services for up to four months after the Closing Date. Seller will provide to Buyer copies of any such information that is provided to either Lxxx Xxxxx or not satisfied such requirements. Each Transferred Employee shall cease to be employed by Seller as of such Transferred Employee’s Hiring TimeHxxxxx Xxxxx. Buyer shall indemnify and hold harmless Seller and its Affiliates with respect to all Liabilities Losses relating to or arising out of Buyer’s (or any of Buyer’s Affiliates’) actions or omissions with regard to the employee selection and the employment offer process described in the preceding provisions of this Section 5.9(a7.5(a) (including any claim of discrimination or other illegality in such selection and offer process, and including any Liability that Seller or any of its Affiliates may incur under the U.S. Worker Adjustment and Retraining Notification Act and the regulations promulgated thereunder, or any similar state or other Law as a result of any act or omission of Buyer occurring after the Closing). The date of employment commencement with Buyer (the “Hire Date”) of each Eligible Employee who accepts such employment with Buyer or an Affiliate of Buyer of each Transferred Employee shall be effective as of the Hiring Time and shall continue for at least two years thereafterClosing Date; provided, however, however that on such date such Transferred Employee is actively at work or is on an active employee status (and not designated as inactive or on short-term disability leave, long-term disability leave or on other leave). With with respect to each Seller any Eligible Employee to whom an employment offer was made and who fails to become a Transferred Employee as of does not report for work on the Closing Date because he of an illness or she is on inactive status (including due to any short-term disabilityinjury, long-term disability or other leave)Buyer, Buyer shallin its sole discretion, or shall cause its Affiliates to, at the time may delay such Seller Employee is ready and available to return to active employment status (so long as such date occurs within 180 days after the Closing or such additional time required by Law), provide such Seller Employee with employment in a position comparable to that which the individual had prior Eligible Employee’s Hire Date to the commencement of his or her absence from date upon which such individual is able to and does commence active employment, which employment shall continue for at least two years thereafter (the Closing or such other time each Transferred Employee otherwise begins employment duty with Buyer or its Affiliate, as applicable, is referred to as his or her “Hiring Time”). During the two year period commencing at Closing, Buyer shall not permit a net reduction, due to involuntary attrition, in the employment levels at each Facility below the aggregate number of Transferred Employees employed by Buyer (or Buyer’s Affiliates) immediately after the Closing. Nothing in the foregoing shall affect the right of Seller or Buyer (or Buyer’s Affiliate) to terminate the employment of a Seller Employee for cause at any time.

Employee and Benefit Matters. (ai) On or prior to the Closing Date, Buyer or one of its Affiliates shall offer employment to each Seller Employee within forty-five (45) days after the execution of this Agreement, and in any event prior to Closing, and to each Off-Site Employee that it wishes to offer employment within sixty (60) days after the execution of this Agreement, and in any event prior to Closing. Each such offer to a Seller Employee shall include terms and provisions determined by Buyer or its Affiliate that are consistent with the provisions of this Section 5.9 (and may be conditioned upon the occurrence of the Closing and such individual’s passage of any customary pre-employment background check and drug tests). Within sixty (60) days after the execution of this Agreement, and in any event prior to Closing, Buyer shall notify Seller as to each Seller Employee who has accepted employment with Buyer or any of its Affiliates and satisfied the applicable pre-hire requirements (each, a “Transferred Employee”), and each Seller Employee who has rejected Buyer’s offer of employment or not satisfied such requirements. Each Transferred Employee shall cease to be employed by Seller as of such Transferred Employee’s Hiring Time. Buyer shall indemnify and hold harmless Seller and its Affiliates with respect to all Liabilities arising out of Buyer’s (or any of Buyer’s Affiliates’) actions or omissions with regard to employee selection and the employment offer process described in this Section 5.9(a) active Employees (including any claim of discrimination or other illegality in such selection and offer process, and including any Liability that Seller or any of its Affiliates may incur employee on leave under the U.S. Worker Adjustment and Retraining Notification Family Medical Leave Act and or similar legislation ("FMLA"), after the regulations promulgated thereunderClosing Date, if such former employee is ordered reinstated pursuant to an award, or any similar state or other Law order of, an arbitrator (but, at Seller's option, excluding up to three non-represented Employees (the "Excluded Employees")) with base pay equal to base pay with Seller immediately prior to the Closing Date and total compensation and benefits comparable in the aggregate for all Employees taken as a result whole to total compensation and benefits (based solely on the plans and programs identified on Schedule M) provided by Seller on the date hereof (such Employees who accept offers of any act or omission of Buyer occurring after employment being the Closing"Transferred Employees"). The employment with Buyer or an Affiliate of Buyer of each Transferred Employee shall be effective as of the Hiring Time and shall continue for at least two years thereafter; provided, however, that on such date such Transferred Employee is actively at work Buyer shall have no obligation to maintain any specific plan, program or is on an active employee status arrangement of Seller. Nothing herein shall (and not designated as inactive or on short-term disability leave, long-term disability leave or on other leave). With respect i) require Buyer to each Seller Employee who fails to become a Transferred Employee as of the Closing because he or she is on inactive status (including due offer employment to any short-person on long or short term disability, long-term disability layoff or leave of absence (other leavethan FMLA), Buyer shall, or shall cause its Affiliates to, at the time such Seller Employee is ready and available to return to active employment status (so long as such date occurs within 180 days after the Closing ii) restrict or such additional time required by Law), provide such Seller Employee with employment in a position comparable to that which the individual had prior to the commencement of his or her absence from active employment, which employment shall continue for at least two years thereafter (the Closing or such other time each Transferred Employee otherwise begins employment with Buyer or its Affiliate, as applicable, is referred to as his or her “Hiring Time”). During the two year period commencing at Closing, Buyer shall not permit a net reduction, due to involuntary attrition, in the employment levels at each Facility below the aggregate number of Transferred Employees employed by Buyer (or limit Buyer’s Affiliates) immediately after the Closing. Nothing in the foregoing shall affect the right of Seller or Buyer (or Buyer’s Affiliate) 's ability to terminate the employment of a Seller any Transferred Employee for cause any reason at any time.; provided, however, Buyer shall offer employment to any Employees on short or long term disability who is able to return to work within one year of the Closing Date, and if any such Employee accepts such offer and returns to work, Buyer and Seller shall treat such Employees as Transferred Employees hereunder. Buyer further agrees that it will provide severance and related benefits to any non-represented Employees who are later terminated by Buyer, other than for cause, from employment with the Refinery or Buyer within twelve months after the Closing Date under a plan which contains the same benefit levels as the BP Oil Company Lima Refinery 1996 Separation Program (summary attached as Schedule N.) provided, however, that Seller shall reimburse Buyer for one-half of Bpaid or provided to or for the benefit of any such non-represented Employees or their dependents separated from employment with the Buyer within twelve months of the Closing Date. Seller agrees that it shall work in good faith with Buyer to assist Buyer to employ and retain the Employees it has offered employment to and Seller shall not discourage such Employees from accepting Buyer's offer of employment. The Excluded Employees will be made available to Buyer by Seller for a specified period following the Closing Date through individual contractual arrangements to be finalized on or before the Closing Date;

Employee and Benefit Matters. (a) Buyer Schedule 7.5(a) sets forth a list of certain employees of Seller or one its Affiliates (other than any member of the NOARK Group) who have provided services relating to NOARK’s business that Seller and its Affiliates shall offer make available to Buyer to discuss potential employment to each Seller Employee within forty-five with Buyer after the Closing (45) such employees being collectively the “Eligible Employees”). Within 10 days after the execution date of this Agreement, and in any event prior Buyer shall offer employment (which shall be contingent on the occurrence of the Closing) to Closingeach Eligible Employee that Buyer desires to employ, and Buyer shall notify Seller in writing of the identities of the Eligible Employees to each Off-Site Employee that it wishes to offer employment within sixty (60) days after the execution of this Agreement, and in any event prior to Closingwhom Buyer has made an offer. Each such offer of employment to a Seller Eligible Employee shall include terms and provisions determined by Buyer or its Affiliate that are be consistent with the provisions of this Section 5.9 (7.5 and may be conditioned upon shall remain open for a period of at least seven days. On or before the occurrence of date that is three Business Days prior to the Closing and such individual’s passage of any customary pre-employment background check and drug tests). Within sixty (60) days after the execution of this Agreement, and in any event prior to ClosingDate, Buyer shall notify Seller as to each Seller Eligible Employee who has accepted employment with Buyer or any of its Affiliates and satisfied the applicable pre-hire requirements (each, a “Transferred Employee”), and each Seller Eligible Employee who has rejected Buyer’s an offer of such employment. Between the date hereof and the Closing Date, Seller and its Affiliates shall provide Buyer with reasonable access to the Eligible Employees. Seller and its Affiliates shall not take any action to discourage any Eligible Employee from accepting an offer of employment from Buyer. Notwithstanding the foregoing, Buyer acknowledges that Seller will provide information to Xxxx Xxxxx and Xxxxxx Xxxxx that would outline for such Eligible Employees what their duties and compensation would be if they were to remain employees of Seller, and no such action shall be deemed to violate the provisions of the immediately preceding sentence; provided, however, that if such employees remain employees of Seller, then Seller will make such employees available to Buyer to provide services for up to four months after the Closing Date. Seller will provide to Buyer copies of any such information that is provided to either Xxxx Xxxxx or not satisfied such requirements. Each Transferred Employee shall cease to be employed by Seller as of such Transferred Employee’s Hiring TimeXxxxxx Xxxxx. Buyer shall indemnify and hold harmless Seller and its Affiliates with respect to all Liabilities Losses relating to or arising out of Buyer’s (or any of Buyer’s Affiliates’) actions or omissions with regard to the employee selection and the employment offer process described in the preceding provisions of this Section 5.9(a7.5(a) (including any claim of discrimination or other illegality in such selection and offer process, and including any Liability that Seller or any of its Affiliates may incur under the U.S. Worker Adjustment and Retraining Notification Act and the regulations promulgated thereunder, or any similar state or other Law as a result of any act or omission of Buyer occurring after the Closing). The date of employment commencement with Buyer (the “Hire Date”) of each Eligible Employee who accepts such employment with Buyer or an Affiliate of Buyer of each Transferred Employee shall be effective as of the Hiring Time and shall continue for at least two years thereafterClosing Date; provided, however, however that on such date such Transferred Employee is actively at work or is on an active employee status (and not designated as inactive or on short-term disability leave, long-term disability leave or on other leave). With with respect to each Seller any Eligible Employee to whom an employment offer was made and who fails to become a Transferred Employee as of does not report for work on the Closing Date because he of an illness or she is on inactive status (including due to any short-term disabilityinjury, long-term disability or other leave)Buyer, Buyer shallin its sole discretion, or shall cause its Affiliates to, at the time may delay such Seller Employee is ready and available to return to active employment status (so long as such date occurs within 180 days after the Closing or such additional time required by Law), provide such Seller Employee with employment in a position comparable to that which the individual had prior Eligible Employee’s Hire Date to the commencement of his or her absence from date upon which such individual is able to and does commence active employment, which employment shall continue for at least two years thereafter (the Closing or such other time each Transferred Employee otherwise begins employment duty with Buyer or its Affiliate, as applicable, is referred to as his or her “Hiring Time”). During the two year period commencing at Closing, Buyer shall not permit a net reduction, due to involuntary attrition, in the employment levels at each Facility below the aggregate number of Transferred Employees employed by Buyer (or Buyer’s Affiliates) immediately after the Closing. Nothing in the foregoing shall affect the right of Seller or Buyer (or Buyer’s Affiliate) to terminate the employment of a Seller Employee for cause at any time.

Employee and Benefit Matters. 4.2.1. Schedule 4.2.1 contains a list of employees who are actively employed by the Company or the Subsidiary (aincluding individuals on vacation, short-term disability or similar leave but excluding those persons on long-term disability leave) Buyer on the date hereof who the parties agree and acknowledge will be treated as employees of the Company or one of its Affiliates shall offer employment to each Seller Employee within forty-five (45) days after the execution Subsidiary for purposes of this Agreement, and which such Schedule 4.2.1 shall be amended as of the Closing Date to add or delete any employees that were hired or terminated after the Effective Date in any event prior accordance with Section 3.2(p) hereof. All employees listed on Schedule 4.2.1 as of the Closing Date shall be referred to Closing, and to each Off-Site Employee that it wishes to offer employment within herein as “Company’s Employees.” For the sixty (60) days after the execution of this Agreement, and in any event prior to Closing. Each such offer to a Seller Employee shall include terms and provisions determined by Buyer or its Affiliate that are consistent with the provisions of this Section 5.9 (and may be conditioned upon the occurrence of day period following the Closing and such individual’s passage of any customary pre-employment background check and drug tests). Within sixty Date (60) days after the execution of this Agreement, and in any event prior to Closing, Buyer shall notify Seller as to each Seller Employee who has accepted employment with Buyer or any of its Affiliates and satisfied the applicable pre-hire requirements (each, a “Transferred EmployeeEvaluation Period”), Purchaser shall evaluate Company’s Employees and each Seller Employee who has rejected Buyerdetermine which of Company’s offer of employment or not satisfied such requirements. Each Transferred Employee shall cease to Employees, if any, will be employed by Seller as of such Transferred Employee’s Hiring Time. Buyer shall indemnify and hold harmless Seller and its Affiliates with respect to all Liabilities arising out of Buyer’s (or any of Buyer’s Affiliates’) actions or omissions with regard to employee selection and terminated at the employment offer process described in this Section 5.9(a) (including any claim of discrimination or other illegality in such selection and offer process, and including any Liability that Seller or any of its Affiliates may incur under the U.S. Worker Adjustment and Retraining Notification Act and the regulations promulgated thereunder, or any similar state or other Law as a result of any act or omission of Buyer occurring after the Closing). The employment with Buyer or an Affiliate of Buyer of each Transferred Employee shall be effective as end of the Hiring Time and shall continue for at least two years thereafterEvaluation Period; provided, however, that on such date such Transferred Employee Purchaser shall not terminate more than forty percent (40%) of Company’s Employees during or at the end of the Evaluation Period. Each of Company’s Employees who is actively at work or is on an active employee status (and not designated as inactive or on short-term disability leave, long-term disability leave or on other leave). With respect to each Seller Employee who fails to become a Transferred Employee terminated as of the Closing because he end of the Evaluation Period shall hereinafter be referred to as a “Transferred Employee.” Each of Company’s Employees who is terminated as of the end of the Evaluation Period shall be referred to as a “Terminated Employee.” Seller shall retain and satisfy, or she reimburse the Subsidiary as applicable for, any and all responsibility, and Purchaser shall have no liability or responsibility whatsoever, for any and all claims, liabilities and obligations, whether contingent or otherwise, relating to (i) any former or retired employee of the Company or the Subsidiary whose employment terminated prior to the Effective Date and who is on inactive status not a Transferred Employee, including, without limitation, any unpaid salary, wages, bonuses or other compensation or severance pay or benefits, (including ii) severance payments in an amount equal to three (3) months’ base pay due to any short-term disabilityof Company’s Employees whose employment was terminated by Purchaser during the Evaluation Period, long-term disability in addition to any payments to such Company’s Employee pursuant to any of the employment, retention or other leave)similar agreements set forth on Schedule 5.12.1.5, Buyer shall(iii) any Transferred Employee arising out of or relating to any period, or shall cause its Affiliates tootherwise incurred, at the time such Seller Employee is ready and available to return to active employment status (so long as such date occurs within 180 days after the Closing or such additional time required by Law), provide such Seller Employee with employment in a position comparable to that which the individual had prior to the commencement Closing Date, including, without limitation, any unpaid salary, wages, bonuses or other compensation or severance pay, benefits or group health care coverage required by Section 4980B of his the Code or her absence from active employmentSection 601 of ERISA, which employment shall continue except for at least two years thereafter those benefits referenced in Section 4.2.5, and (iv) the Closing or Seller Plans (such other time each Transferred claims, liabilities and obligations, collectively the “Retained Employee otherwise begins employment with Buyer or its Affiliate, as applicable, is referred to as his or her “Hiring TimeLiabilities”). During Any severance payment or retention payment made by Seller pursuant to subsection (ii) above shall be conditioned upon the two year period commencing at ClosingTerminated Employee executing a general release of claims against Seller, Buyer shall not permit a net reductionthe Company, due to involuntary attrition, in the employment levels at each Facility below the aggregate number of Transferred Employees employed by Buyer (or Buyer’s Affiliates) immediately after the Closing. Nothing in the foregoing shall affect the right of Seller or Buyer (or Buyer’s Affiliate) to terminate the employment of a Seller Employee for cause at any timeSubsidiary and Purchaser.

Employee and Benefit Matters. (a) Seller shall provide Buyer or one of its Affiliates shall offer employment to each Seller Employee within forty-five (45) days as soon as practicable after the execution Signing Date and shall update as appropriate through the Closing Date a list of this Agreement, and in any event prior to Closing, and to each Off-Site Employee that it wishes to offer employment within sixty (60) days after the execution certain employees of this Agreement, and in any event prior to Closing. Each such offer to a Seller Employee shall include terms and provisions determined by Buyer or its Affiliate Non-Company Affiliates (the “Available Employees”) that are consistent with the provisions of this Section 5.9 (and may be conditioned upon the occurrence of the Closing and such individual’s passage of any customary pre-employment background check and drug tests). Within sixty (60) days after the execution of this Agreement, and in any event prior to Closing, Buyer shall notify Seller as to each Seller Employee who has accepted employment with Buyer or any of its Affiliates and satisfied the applicable pre-hire requirements (each, a “Transferred Employee”), and each Seller Employee who has rejected Buyer’s offer of employment or not satisfied such requirements. Each Transferred Employee shall cease to be employed by Seller as of such Transferred Employee’s Hiring Time. Buyer shall indemnify and hold harmless Seller and its Affiliates will make available to Buyer to discuss potential employment with respect Buyer (which discussions the Parties agree shall not violate Section 6.9(c)). In addition, Seller shall provide Buyer as soon as practicable after the Signing Date and shall update as appropriate until and through the Closing Date a list of the Affiliates of Seller which employ each such employee. As requested by Buyer and within five (5) Business Days of any such request following the Signing Date, Seller will provide to all Liabilities arising out of Buyer (i) to the extent permitted by any applicable Contract and Laws, aggregated employee information (with ranges and averages) as described in Buyer’s request relating to employee compensation and benefits of the Available Employees and (or ii) to the extent permitted by any of applicable Contract and Laws, specific information as described in Buyer’s Affiliates’request relating to each Available Employee as of a specified date regarding such employee’s name, salary, job title and work location for the sole purpose of assisting Buyer to comply with this Agreement and to evaluate Available Employees for potential employment, and for no other purpose. Buyer agrees that such information shall be maintained in a confidential manner and shall be made available only to those with a business need-to-know the information, and that Buyer shall have sole responsibility for its selection decisions of new employees without any other input or involvement in any manner from Seller. Buyer is not obligated to hire any Available Employee but may interview all Available Employees. It is understood and agreed that (i) actions or omissions with regard Buyer’s expressed intention to employee selection and the extend offers of employment offer process described as set forth in this Section 5.9(ashall not constitute any commitment, Contract or understanding (expressed or implied) (including of any claim obligation on the part of discrimination Buyer to a post-Closing employment relationship of any fixed term or duration or upon any terms or conditions other illegality in such selection and offer processthan those that Buyer may establish pursuant to individual offers of employment, and including (ii) employment offered by Buyer is “at will” and may be terminated by Buyer or by an employee at any Liability that Seller or time for any of its Affiliates may incur under reason (subject to any written commitments to the U.S. Worker Adjustment and Retraining Notification Act and the regulations promulgated thereunder, or any similar state or other Law as a result of any act or omission of Buyer occurring after the Closing). The employment with contrary made by Buyer or an Affiliate employee and applicable requirements of Buyer of each Transferred Employee shall be effective as of the Hiring Time and shall continue for at least two years thereafter; provided, however, that on such date such Transferred Employee is actively at work or is on an active employee status (and not designated as inactive or on short-term disability leave, long-term disability leave or on other leavelaw). With respect to each Seller Employee who fails to become a Transferred Employee as of the Closing because he or she is on inactive status (including due to any short-term disability, long-term disability or other leave), Buyer shall, or shall cause its Affiliates to, at the time such Seller Employee is ready and available to return to active employment status (so long as such date occurs within 180 days after the Closing or such additional time required by Law), provide such Seller Employee with employment in a position comparable to that which the individual had prior to the commencement of his or her absence from active employment, which employment shall continue for at least two years thereafter (the Closing or such other time each Transferred Employee otherwise begins employment with Buyer or its Affiliate, as applicable, is referred to as his or her “Hiring Time”). During the two year period commencing at Closing, Buyer shall not permit a net reduction, due to involuntary attrition, in the employment levels at each Facility below the aggregate number of Transferred Employees employed by Buyer (or Buyer’s Affiliates) immediately after the Closing. Nothing in the foregoing shall affect the right of Seller or Buyer (or Buyer’s Affiliate) to terminate the employment of a Seller Employee for cause at any time.

Employee and Benefit Matters. (a) Buyer or one of its Affiliates shall offer employment to each Seller Employee within forty-five (45) days From and after the execution date hereof, Buyer shall have the right to interview and evaluate each of the Employees of the Companies for retention with Buyer. On or before the date that is ten (10) Business Days after the date of this Agreement, and in any event prior to Closing, and to each Off-Site Employee that it wishes to offer employment within sixty (60) days after the execution of this Agreement, and in any event prior to Closing. Each such offer to a Seller Employee shall include terms and provisions determined by Buyer or its Affiliate that are consistent with the provisions of this Section 5.9 (and may be conditioned upon the occurrence of the Closing and such individual’s passage of any customary pre-employment background check and drug tests). Within sixty (60) days after the execution of this Agreement, and in any event prior to Closing, Buyer shall notify Seller as to each Seller Employee who has accepted employment with the Sellers in writing of the identities of any Employees that will not be retained by Buyer or any of its Affiliates and satisfied after the applicable preClosing Date (“Non-hire requirements (each, a “Transferred EmployeeRetained Employees”). On or before the Closing Date the Sellers shall terminate the employment of all such Non-Retained Employees or transfer the employment of all such Non-Retained Employees to an entity whose Interests are not being acquired by Buyer. Any severance payment or other compensation due to any Non-Retained Employee as a result of such termination or transfer of employment shall be the responsibility and liability of the Sellers and included as a current payable in the Net Working Capital adjustment. Any obligation or liability with respect to the Employees, or relating to employment or terms and conditions of employment, arising on or before the Closing Date, and each Seller Employee who has rejected Buyer’s offer with respect to the Non-Retained Employees, arising on or after the Closing Date, shall be the sole responsibility of employment or not satisfied such requirements. Each Transferred Employee shall cease to be employed by Seller as of such Transferred Employee’s Hiring Time. Buyer the Sellers, and the Sellers shall indemnify and hold harmless Seller Buyer and its respective Affiliates with respect to any such liability or losses. Any severance payment, other compensation, or Loss resulting from the termination upon or after the Closing Date of the employment of any Employee not designated by Buyer as a Non-Retained Employee in accordance with the requirements of this Section 6.5(a) (each such Employee a “Retained Employee”) shall be the responsibility and liability of Buyer. Except as otherwise provided in this Section 6.5(a), the Sellers shall indemnify and hold harmless Buyer and its respective Affiliates with respect to all Liabilities Losses relating to or arising out of Buyer’s (or any designation of Buyer’s Affiliates’) actions or omissions with regard to employee selection Non-Retained Employees and the employment, terms and conditions of employment, termination, or transfer of the employment offer process described in this Section 5.9(a) of Non-Retained Employees (including any claim of discrimination or other illegality in such selection and offer processdesignation, and including any Liability that Seller or any of its Affiliates may incur under the U.S. Worker Adjustment and Retraining Notification Act and the regulations promulgated thereundertermination, or any similar state transfer). Except as expressly provided herein, Buyer shall be solely responsible for all employee benefits, compensation and all other liabilities with respect to the Retained Employees with respect to such Retained Employees’ service from and after the Closing Date. On or other Law as a result before the first anniversary of the Closing Date, if Buyer terminates the employment of any act Retained Employee, other than for retirement, voluntary resignation by the Retained Employee, death, Inability to Work, or omission of Buyer occurring after the Closing). The Cause, or if any Retained Employee terminates employment with Buyer or an Affiliate of Buyer of each Transferred for Good Reason, such Retained Employee shall be effective as of entitled to receive upon termination a severance payment (the Hiring Time and shall continue “Severance Payment”)from Buyer in a lump sum amount equal to the Retained Employee’s salary in effect on the Closing Date for at least two years thereaftersix (6) months; provided, however, that on the payment of such date such Transferred Employee is actively at work or is on an active employee status Severance Payment shall be delayed for a period of six (6) months and not designated as inactive or on short-term disability leave, long-term disability leave or on other leave). With respect to each Seller Employee who fails to become a Transferred Employee as of the Closing because he or she is on inactive status two (including due to any short-term disability, long-term disability or other leave), Buyer shall, or shall cause its Affiliates to, at the time such Seller Employee is ready and available to return to active employment status (so long as such date occurs within 180 2) days after the Closing or Employee’s separation from service if such additional time Retained Employee is a “specified employee” as defined in, and such delay is required by Law)by, provide such Seller Employee with employment Section 409A of the Code and guidance issued thereunder. Nothing in a position comparable to that which this Agreement obligates the individual had prior to the commencement of his or her absence from active employment, which employment shall continue for at least two years thereafter (the Closing or such other time each Transferred Employee otherwise begins employment with Buyer or its Affiliate, as applicable, is referred Affiliates to as his or her “Hiring Time”). During the two year period commencing at Closing, Buyer shall not permit a net reduction, due to involuntary attrition, in retain the employment levels at each Facility below the aggregate number of Transferred Employees employed by Buyer (or Buyer’s Affiliates) immediately any Retained Employee for any specified period of time after the Closing. Nothing in the foregoing shall affect Closing Date or limits the right of Seller Buyer or Buyer (or Buyer’s Affiliate) its Affiliates to terminate the employment of a Seller any Retained Employee for cause at any time, with or without advance notice, and for any reason; provided, however, that Buyer shall provide the Retained Employees with salary and benefits which are in the aggregate equal to the salary and benefits provided to such Retained Employees by the applicable Company and Buyer shall provide the Retained Employees with service credit for eligibility and vesting purposes (but not for purposes of benefit accruals) under the employee benefit plans, programs and policies of Buyer on the same basis as previously provided such Retained Employees for service with the Companies and any predecessors under the Employee Benefit Plans.

Employee and Benefit Matters. (a) The Buyer or one an Affiliate of the Buyer agrees to offer to hire all of the Business Employees except those Business Employees identified by Buyer in its Affiliates sole discretion as “Excluded Employees” on Schedule 6.4(a) (“Excluded Employees”) (the “Designated Employees”), at the same base compensation rates paid by Sellers as of the date hereof with such increases thereto between the date hereof and the Closing as may be approved by Buyer (a “Qualifying Offer”). Buyer is not assuming responsibility for any obligations or liabilities with respect to Excluded Employees to whom no offer of employment is made including any obligation for severance or any other benefits. Furthermore, if any Designated Employee to whom an offer of employment is made by Buyer declines an offer of employment made by the Buyer, the Buyer shall offer employment have no obligations with respect to each Seller such Designated Employee including any obligation for severance or any other benefits, and Sellers shall be responsible for any obligations with respect to such Designated Employee for severance, if applicable, and any other benefits in accordance with the Sellers’ severance plans, policies or arrangements. Designated Employees who become employed by the Buyer on or within forty-five (45) ninety days after the execution of this Agreement, and in any event prior Effective Time are referred to Closing, and herein as “Continuing Employees.” Subject to each Off-Site Employee that it wishes to offer employment within sixty (60) days after the execution of this Agreement, and in any event prior to Closing. Each such offer to a Seller Employee shall include terms and provisions determined by Buyer or its Affiliate that are consistent with the provisions of this Section 5.9 (and may 6.4, the Buyer agrees to be conditioned upon the occurrence of the Closing and such individual’s passage of any customary preresponsible for all employment-employment background check and drug tests). Within sixty (60) days after the execution of this Agreement, and in any event prior related obligations with respect to Closing, Buyer shall notify Seller as to each Seller Employee who has accepted Continuing Employees arising from their employment with Buyer or any of its Affiliates from and satisfied after the applicable pre-hire requirements (each, a “Transferred Employee”), and Hire Date. The Hire Date for each Seller such Continuing Employee who has rejected Buyer’s offer of employment or not satisfied such requirements. Each Transferred Employee shall cease to be actually becomes employed by Seller as of such Transferred Employee’s Hiring Time. Buyer shall indemnify and hold harmless Seller and its Affiliates with respect to all Liabilities arising out of Buyer’s (or any of Buyer’s Affiliates’) actions or omissions with regard to employee selection and the employment offer process described in this Section 5.9(a) (including any claim of discrimination or other illegality in such selection and offer process, and including any Liability that Seller or any of its Affiliates may incur under the U.S. Worker Adjustment and Retraining Notification Act and the regulations promulgated thereunder, or any similar state or other Law as a result of any act or omission of Buyer occurring after the Closing). The employment with Buyer or an Affiliate of the Buyer of each Transferred Employee shall be the Closing Date (effective as of the Hiring Time and shall continue for at least two years thereafter; providedEffective Time), however, that on such date such Transferred Employee is actively at work or is on an active employee status (and not designated as inactive or on short-term disability leave, long-term disability leave or on other leave). With except with respect to each Seller Employee those individuals to whom employment offers were made and (i) who fails to become a Transferred Employee are not Actively Employed as of the Closing because he Date, in which case the Hire Date shall be the date upon which such individual is able to and does commence active duty with the Buyer or she is on inactive status (including due to any short-term disability, long-term disability or other leave), Buyer shallan Affiliate of the Buyer, or shall cause its Affiliates to, at (ii) with respect to whom the time such Buyer and the Seller Employee is ready and available to return to active employment status (so long as such date occurs within 180 days after the Closing or such additional time required by Law), provide such Seller Employee with employment in have agreed will have a position comparable to that which the individual had prior to the commencement of his or her absence from active employment, which employment shall continue for at least two years thereafter (the Closing or such other time each Transferred Employee otherwise begins employment with Buyer or its Affiliate, as applicable, is referred to as his or her “Hiring Time”). During the two year period commencing at Closing, Buyer shall not permit a net reduction, due to involuntary attrition, in the employment levels at each Facility below the aggregate number of Transferred Employees employed by Buyer (or Buyer’s Affiliates) immediately after the Closing. Nothing in the foregoing shall affect the right of Seller or Buyer (or Buyer’s Affiliate) to terminate the employment of a Seller Employee for cause at any timelater Hire Date.

Employee and Benefit Matters. 4.2.1. Schedule 4.2.1 contains a list of employees who are actively employed by the Company or the Subsidiary (aincluding individuals on vacation, short-term disability or similar leave but excluding those persons on long-term disability leave) Buyer on the date hereof who the parties agree and acknowledge will be treated as employees of the Company or one of its Affiliates shall offer employment to each Seller Employee within forty-five (45) days after the execution Subsidiary for purposes of this Agreement, and which such Schedule 4.2.1 shall be amended as of the Closing Date to add or delete any employees that were hired or terminated after the Effective Date in any event prior accordance with Section 3.2(p) hereof. All employees listed on Schedule 4.2.1 as of the Closing Date shall be referred to Closing, and to each Off-Site Employee that it wishes to offer employment within herein as “Company’s Employees.” For the sixty (60) days after the execution of this Agreement, and in any event prior to Closing. Each such offer to a Seller Employee shall include terms and provisions determined by Buyer or its Affiliate that are consistent with the provisions of this Section 5.9 (and may be conditioned upon the occurrence of day period following the Closing and such individual’s passage of any customary pre-employment background check and drug tests). Within sixty Date (60) days after the execution of this Agreement, and in any event prior to Closing, Buyer shall notify Seller as to each Seller Employee who has accepted employment with Buyer or any of its Affiliates and satisfied the applicable pre-hire requirements (each, a “Transferred EmployeeEvaluation Period”), Purchaser shall evaluate Company’s Employees and each Seller Employee who has rejected Buyerdetermine which of Company’s offer of employment or not satisfied such requirements. Each Transferred Employee shall cease to Employees, if any, will be employed by Seller as of such Transferred Employee’s Hiring Time. Buyer shall indemnify and hold harmless Seller and its Affiliates with respect to all Liabilities arising out of Buyer’s (or any of Buyer’s Affiliates’) actions or omissions with regard to employee selection and terminated at the employment offer process described in this Section 5.9(a) (including any claim of discrimination or other illegality in such selection and offer process, and including any Liability that Seller or any of its Affiliates may incur under the U.S. Worker Adjustment and Retraining Notification Act and the regulations promulgated thereunder, or any similar state or other Law as a result of any act or omission of Buyer occurring after the Closing). The employment with Buyer or an Affiliate of Buyer of each Transferred Employee shall be effective as end of the Hiring Time and shall continue for at least two years thereafterEvaluation Period; provided, however, that on such date such Transferred Employee Purchaser shall not terminate more than forty percent (40%) of Company’s Employees during or at the end of the Evaluation Period. Each of Company’s Employees who is actively at work or is on an active employee status (and not designated as inactive or on short-term disability leave, long-term disability leave or on other leave). With respect to each Seller Employee who fails to become a Transferred Employee terminated as of the Closing because he end of the Evaluation Period shall hereinafter be referred to as a “Transferred Employee.” Each of Company’s Employees who is terminated as of the end of the Evaluation Period shall be referred to as a “Terminated Employee.” Seller shall retain and satisfy, or she reimburse the Subsidiary as applicable for, any and all responsibility, and Purchaser shall have no liability or responsibility whatsoever, for any and all claims, liabilities and obligations, whether contingent or otherwise, relating to (i) any former or retired employee of the Company or the Subsidiary whose employment terminated prior to the Effective Date and who is on inactive status not a Transferred Employee, including, without limitation, any unpaid salary, wages, bonuses or other compensation or severance pay or benefits, (including ii) severance payments in an amount equal to three (3) months’ base pay due to any short-term disabilityof Company’s Employees whose employment was terminated by Purchaser during the Evaluation Period, long-term disability unless Seller or other leave)the Subsidiary has already made a payment to such Company’s Employee pursuant to any of the employment, Buyer shallretention or similar agreements set forth on Schedule 5.12.1.5, in which case Seller shall have no further obligation with respect to severance or retention payments for such employee, (iii) any Transferred Employee arising out of or relating to any period, or shall cause its Affiliates tootherwise incurred, at the time such Seller Employee is ready and available to return to active employment status (so long as such date occurs within 180 days after the Closing or such additional time required by Law), provide such Seller Employee with employment in a position comparable to that which the individual had prior to the commencement Closing Date, including, without limitation, any unpaid salary, wages, bonuses or other compensation or severance pay, benefits or group health care coverage required by Section 4980B of his the Code or her absence from active employmentSection 601 of ERISA, which employment shall continue except for at least two years thereafter those benefits referenced in Section 4.2.5, and (iv) the Closing or Seller Plans (such other time each Transferred claims, liabilities and obligations, collectively the “Retained Employee otherwise begins employment with Buyer or its Affiliate, as applicable, is referred to as his or her “Hiring TimeLiabilities”). During Any severance payment or retention payment made by Seller pursuant to subsection (ii) above shall be conditioned upon the two year period commencing at ClosingTerminated Employee executing a general release of claims against Seller, Buyer shall not permit a net reductionthe Company, due to involuntary attrition, in the employment levels at each Facility below the aggregate number of Transferred Employees employed by Buyer (or Buyer’s Affiliates) immediately after the Closing. Nothing in the foregoing shall affect the right of Seller or Buyer (or Buyer’s Affiliate) to terminate the employment of a Seller Employee for cause at any timeSubsidiary and Purchaser.