Common use of Employee and Employee Benefit Plan Matters Clause in Contracts

Employee and Employee Benefit Plan Matters. (a) Savia acknowledges and agrees that the Fresh Produce Companies shall have no obligation to terminate any of the employees of the Fresh Produce Companies (the "Fresh Produce Employees") prior to the Second Closing, and that the Fresh Produce Companies shall be obligated to pay all amounts due to any Fresh Produce Employee terminated in connection with or following the Second Closing, including without limitation any severance pay. Following the Second Closing, Savia agrees to cause the Fresh Produce Companies to make all such payments and to indemnify and hold harmless BHC and its affiliates from and against any claims by Fresh Produce Employees relating to the termination of any of the Fresh Produce Employees by the Fresh Produce Companies, Savia or any of its affiliates. (b) Within five days after the Second Closing, Savia, on behalf of BHC, will notify all Fresh Produce Employees, (i) that the Second Closing has occurred and (ii) as provided in BHC's 1998 Long-Term Incentive Plan, (A) that all unvested options to purchase Common Stock which have been issued to Fresh Produce Employees who do not continue in an employment position in BHC or one of its subsidiaries subsequent to the Second Closing vested as of the Second Closing Date and (B) such Fresh Produce Employees have three months from the Second Closing to exercise any vested options to purchase Common Stock. Prior to the Second Closing, BHC shall take all corporate action necessary to cause all unvested options of the Fresh Produce Employees who do not continue in an employment position in BHC or one of its subsidiaries subsequent to the Second Closing to become vested as of the Second Closing Date.

Employee and Employee Benefit Plan Matters. (a) Savia acknowledges and agrees that On or before fourteen (14) days prior to the Fresh Produce Companies Closing Date, Buyer shall have no obligation deliver to terminate any Seller a list of the employees of the Fresh Produce Companies Employees which Buyer intends to hire (the "Fresh Produce Retained Employees") prior ). Seller will cooperate with Buyer in its efforts to employ the Retained Employees. At the direction of Buyer, using releases reasonably acceptable to Seller and prepared by Buyer, Seller will seek to obtain releases of all claims held by Retained Employees against Seller relating to termination of employment with Seller. Buyer agrees with Seller that subject to the Second Closingreceipt of such a release from each Retained Employee, and that Buyer will offer to employ such Retained Employee and, if such offer is accepted, will employ such Retained Employee immediately after the Fresh Produce Companies Closing Date. Seller's employment of all Retained Employees who accept employment with Buyer will be terminated by Seller on the Closing Date. Seller shall be obligated responsible for the payment to pay the Employees of all amounts salaries, wages, benefits and other sums due and/or accrued through the Closing Date. Buyer agrees to promptly reimburse Seller for any Fresh Produce Employee terminated and all liabilities for severance and accrued vacation incurred by Seller arising out of the termination in connection with or following the Second ClosingClosing of employment for any Employee; provided, including without limitation any severance pay. Following the Second Closing, Savia agrees that Buyer's obligation to cause the Fresh Produce Companies to make all such payments and to indemnify and hold harmless BHC and its affiliates from and against any claims by Fresh Produce Employees relating reimburse Seller under this SECTION 7.9(a) shall be limited to the termination of any amount reflected on SCHEDULE 4.16, as of the Fresh Produce Employees by the Fresh Produce CompaniesClosing Date, Savia or for any of its affiliatessuch Employees. (b) Within five days Seller acknowledges and understands that Buyer is not hereby, and at no time hereafter will be, adopting, accepting, accepting the transfer of account balances of or assuming any employee benefit plan (including any 401(k) plan) or collective bargaining agreement of Seller relating to any of its employees or any other agreement, trust, plan, fund or other arrangement of Seller that provides for employee benefits or perquisites (collectively, "Employment Arrangements"), and Buyer shall have no liability or obligation whatsoever under any Employment Arrangement to Seller or to any employees of Seller, whether or not any of such employees are offered employment by or become employees of Buyer. Buyer is not obligated to replace any of the Employment Arrangements for any employees of Seller who become employees of Buyer, nor is Buyer obligated to provide such Persons with any similar agreements, plans or arrangements. (c) Seller will comply after the Second ClosingClosing Date with the requirements of Sections 601 through 608 of ERISA and Section 4980B of the Code with respect to any employee or former employee of Seller (and any dependent or former dependent thereof) whose employment with Seller terminates in connection with Buyer's purchase of the Business. (d) At the request of Buyer, Savia, on behalf of BHC, Seller promptly will notify all Fresh Produce Employees, (i) that the Second Closing has occurred and (ii) as provided in BHC's 1998 Long-Term Incentive Plan, (A) that all unvested options to purchase Common Stock which have been issued to Fresh Produce Employees who do not continue in an employment position in BHC or one of its subsidiaries subsequent make such notifications to the Second Closing vested as of Employees under the Second Closing Date Worker Adjustment and (B) such Fresh Produce Employees have three months from the Second Closing to exercise any vested options to purchase Common Stock. Prior to the Second ClosingRetraining Notification Act, BHC shall take all corporate action necessary to cause all unvested options of the Fresh Produce Employees who do not continue in an employment position in BHC or one of its subsidiaries subsequent to the Second Closing to become vested as of the Second Closing Date.29 U.S.

Employee and Employee Benefit Plan Matters. (a) Savia acknowledges and agrees that Seller shall terminate the Fresh Produce Companies shall have no obligation to terminate any employment of the all employees of the Fresh Produce Companies (Business effective as of the "Fresh Produce Employees") Closing Date. Buyer may, but is not in any way obligated to, offer employment to some or all of the terminated employees upon such terms and conditions as Buyer shall in its sole discretion determine. Buyer agrees to give each of Seller's employees who are employed by Buyer credit for vacation accruals earned but unused for the current year. Buyer agrees to notify Seller in writing as soon as possible after the execution hereof and in any event at least two days prior to the Second Closing, and that the Fresh Produce Companies shall be obligated to pay all amounts due to any Fresh Produce Employee terminated in connection with or following the Second Closing, including without limitation any severance pay. Following the Second Closing, Savia agrees to cause the Fresh Produce Companies to make all such payments and to indemnify and hold harmless BHC and its affiliates from and against any claims by Fresh Produce Employees relating to the termination (i) of any employees of the Fresh Produce Employees Business which Buyer does not intend to offer employment and (ii) whether employees of the Business engaged by Buyer will be provided with group health and medical coverage on terms at least as good as those made available by Seller commencing on the Fresh Produce Companies, Savia or any date of its affiliatesemployment with Buyer. (b) Within five days Buyer is not hereby, and at no time hereafter will be, adopting, accepting, or assuming any employee benefit plan or collective bargaining agreement of Seller relating to any of its employees or any other agreement, trust, plan, fund, or other arrangement of Seller that provides for employee benefits or perquisites (collectively, "Employment Arrangements"), and Buyer shall have no liability or obligation whatsoever under any Employment Arrangement to Seller or to any employees of Seller, whether or not any of such employees are offered employment by or become employees of Buyer. Buyer is not obligated to replace any of the Employment Arrangements for any employees of Seller who become employees of Buyer, nor is Buyer obligated to provide such persons with any similar agreements, plans, or arrangements. (c) Seller will comply after the Second Closing, Savia, on behalf Closing Date with the requirements of BHC, will notify all Fresh Produce Employees, (i) that the Second Closing has occurred Sections 601 through 608 of ERISA and (ii) as provided in BHC's 1998 Long-Term Incentive Plan, (A) that all unvested options to purchase Common Stock which have been issued to Fresh Produce Employees who do not continue in an employment position in BHC or one of its subsidiaries subsequent to the Second Closing vested as Section 4980B of the Second Closing Date Code with respect to any employee or former employee of Seller (and (Bany dependent or former dependent thereof) such Fresh Produce Employees have three months from the Second Closing to exercise any vested options to whose employment with Seller terminates in connection with Buyer's purchase Common Stock. Prior to the Second Closing, BHC shall take all corporate action necessary to cause all unvested options of the Fresh Produce Employees who do not continue in an employment position in BHC or one of its subsidiaries subsequent to the Second Closing to become vested as of the Second Closing DateBusiness.

Employee and Employee Benefit Plan Matters. (a) Savia acknowledges and agrees that the Fresh Produce Companies shall have no obligation to terminate Neither Parent nor any of the employees of the Fresh Produce Companies (the "Fresh Produce Employees") prior to the Second Closing, and that the Fresh Produce Companies its Affiliates shall be obligated to pay all amounts due continue to employ any Fresh Produce Continuing Employee terminated in connection with or for any specific period of time following the Second Closing, including without limitation any severance pay. Following the Second Closing, Savia agrees to cause the Fresh Produce Companies to make all such payments and to indemnify and hold harmless BHC and its affiliates from and against any claims by Fresh Produce Employees relating to the termination of any of the Fresh Produce Employees by the Fresh Produce Companies, Savia or any of its affiliatesEffective Time. (b) Within five days For all purposes (including purposes of vesting, eligibility to participate and level of benefits) under the employee benefit plans of Parent, as applicable, providing benefits to any Continuing Employees after the Second ClosingEffective Time (the “New Plans”), Saviaeach Continuing Employee shall be credited with his or her years of service with Company and its Subsidiaries, on behalf as applicable, and their respective predecessors before the Effective Time, to the same extent as such Continuing Employee was entitled, before the Effective Time, to credit for such service under any similar Company Benefit Plan in which such Continuing Employee participated or was eligible to participate immediately prior to the Effective Time; provided that the foregoing shall not apply (i) with respect to retiree medical plans, benefit accrual under any defined benefit pension plan (ii) to the extent that its application would result in a duplication of BHCbenefits and (iii) for purposes of vesting under any future long-term incentive plan grants. In addition, will notify all Fresh Produce Employeesand without limiting the generality of the foregoing, (i) that Parent shall use reasonable best efforts to cause each Continuing Employee and his or her eligible dependents to be immediately eligible to participate, without any waiting time, in any and all New Plans to the Second Closing has occurred extent coverage under such New Plan replaces coverage under a comparable Company Benefit Plan in which such Continuing Employee participated immediately before the Effective Time (such plans collectively, as applicable, the “Old Plans”), and (ii) as provided in BHC's 1998 Long-Term Incentive Planfor purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Continuing Employee, Parent shall use reasonable best efforts to cause (A) that all unvested options pre-existing condition exclusions and actively-at-work requirements of such New Plan to purchase Common Stock which be waived for such employee and his or her covered dependents, unless such conditions would not have been issued to Fresh Produce Employees who do not continue waived under the comparable plans of the applicable Old Plan in an employment position in BHC or one of its subsidiaries subsequent which such employee participated immediately prior to the Second Closing vested as of the Second Closing Date Effective Time, and (B) any eligible expenses incurred by such Fresh Produce Employees have three months from employee and his or her covered dependents during the Second Closing portion of the plan year of the Old Plans ending on the date such employee’s participation in the corresponding New Plan begins to exercise be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan. (c) Notwithstanding any vested options provision in this Agreement to purchase Common Stockthe contrary, nothing in this Section 6.10 shall create any third-party rights in any Person, including any current or former director, officer, employee or other service provider of Company or its Affiliates or any participant in any Company Benefit Plan or other employee benefit plan, agreement or other arrangement (or any beneficiaries or dependents thereof). Nothing in this Section 6.10 shall be construed to establish, amend, or modify any benefit or compensation plan, program, agreement, contract, policy or arrangement or limit the ability of Parent, Company, or any of their respective Affiliates to amend, modify or terminate in accordance with its terms any benefit or compensation plan, program, agreement, contract, policy or arrangement at any time adopted, assumed, established, sponsored or maintained by any of them. (d) Prior to the Second Closing, BHC if requested by Parent in writing, Company shall adopt resolutions and take all such corporate action as is necessary to cause all unvested options of the Fresh Produce Employees who do not continue terminate each Company Benefit Plan that is a 401(k) plan and any other Company Benefit Plan that Parent may request to be terminated, in an employment position in BHC or one of its subsidiaries subsequent to the Second Closing to become vested each case, effective as of the Second day immediately prior to the Closing Date, and Company shall provide Parent with evidence that each such Company Benefit Plan has been properly terminated, and the form of such termination documents shall be subject to the reasonable approval of Parent. Company shall take any other action set forth on Section 6.10(d) of the Parent Disclosure Letter as reasonably requested in writing by Parent. (e) Company shall, promptly, and, in any event, no more than five Business Days following receipt thereof, provide Parent with any 280G calculations prepared with respect to the service providers of Company and its Subsidiaries. If Company determines that any payment or benefit that is required or proposed to be made in connection with the transactions contemplated by this Agreement could constitute “parachute payments” under Section 280G(b)(2) of the Code (“Section 280G Payments”) and Company seeks to obtain from each Person (each, a “Disqualified Individual”) to whom such payment is made a written agreement waiving such Disqualified Individual’s right to receive some or all of such payment or benefit (the “Waived Benefits”) to the extent necessary so that all remaining payments and benefits applicable to such Disqualified Individual shall not be deemed a parachute payment and under which the Disqualified Individuals accepts in substitution for the Waived Benefits the right to receive the Waived Benefits only if approved by the stockholders of Company in a manner that complies with Section 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder, then in connection with the foregoing, Company shall promptly provide Parent with all information reasonably requested by Xxxxxx, including providing no later than fifteen Business Days prior to the date such waivers are sought or approval by Company’s members is sought as described in this Section 6.10, all calculations and documentation prepared in connection with the foregoing and consult with Parent in good faith to incorporate any reasonable comments and suggestions provided by Parent with respect thereto. Company shall provide Parent and its counsel with a copy of any waiver agreement and disclosure statement contemplated by this Section 6.10 at least ten Business Days prior to delivery to each Disqualified Individual and the members of Company of such waiver agreement and disclosure statement, respectively, and Company shall accept any changes reasonably requested by Parent or its counsel.

Employee and Employee Benefit Plan Matters. (a) Savia acknowledges and agrees that the Fresh Produce Companies The Purchaser shall have no obligation extend offers of employment to terminate any of the employees of the Fresh Produce Companies (Seller as of the "Fresh Produce Employees") prior Closing Date other than Jxxxxx X. Xxxxxx, Mxxxxxx X. Xxxxxx and Jxxxx S. X. Xxxxxxxx. Such offers of employment shall be on such terms as the Purchaser may choose, subject to the Second Closingrequirements of Section 8.11(e) below; provided, however, that nothing in this Agreement shall obligate the Purchaser to employ any such employee for any period of time. The employees of the Seller who accept offers of employment with the Purchaser are referred to in this Agreement as the “Transferred Employees.” (b) Except as expressly specified in this Section 8.11, the Seller shall retain all liabilities and assets under, and that the Fresh Produce Companies shall be obligated to pay all amounts due to any Fresh Produce Employee terminated in connection with or following the Second Closingpursuant to, including without limitation any severance pay. Following the Second Closing, Savia agrees to cause the Fresh Produce Companies to make all such payments and to indemnify and hold harmless BHC and its affiliates from and against any claims by Fresh Produce Employees relating to the termination of any of the Fresh Produce Employees Employee Benefit Plans maintained by the Fresh Produce Companies, Savia Seller or any of its affiliatesAffiliates, and all wages, salaries, bonuses, commissions and associated Taxes accrued with respect to all of the Seller’s employees as of the Closing. Except as expressly specified in this Section 8.11, the Purchaser shall not assume any of the Employee Benefit Plans maintained by Seller or any of its Affiliates, or any liability or obligation under any plan, contract, payroll practice or other arrangement that the Seller or any of its Affiliates sponsors, contributes to, participates in, or has any liability under prior to the Closing Date, whether or not disclosed under this Agreement or in any Schedule hereto. (bc) Within five days after On or before the Second ClosingClosing Date, Saviathe Seller shall adopt appropriate resolutions to terminate all of the Seller’s Employee Benefit Plans (other than the Employee Benefit Plans that the Purchaser assumes pursuant to Section 8.11(h)). The Seller will be responsible for making all required contributions to the Seller’s Employee Benefit Plans, and for providing any required notices to its employees regarding the termination of the Seller’s Employee Benefit Plans. The Purchaser will not have any responsibilities with respect to the Seller’s Employee Benefit Plans. (d) Following the Closing Date, the Purchaser shall reasonably cooperate with each Transferred Employee to permit the Transferred Employee to rollover the balance of any funds in any Section 401(k) plan maintained by the Seller or its Affiliates on behalf of BHCsuch Transferred Employee into a Section 401(k) plan maintained by the Purchaser. In particular, will notify all Fresh Produce a Transferred Employee shall be able to elect to receive a distribution of his or her loan note from the Seller’s Section 401(k) plan and shall be able to elect to roll over the loan note to the Purchaser’s Section 401(k) plan. Both the Purchaser and the Seller shall adopt any amendments to their Section 401(k) plans which are necessary or desirable to permit the in-kind rollover of the loan notes. (e) The Purchaser shall provide the Transferred Employees, considered as a group, employee benefits under “employee benefit plans,” as defined in Section 3(3) of ERISA, with a value that is substantially comparable in the aggregate to those benefits provided to the Transferred Employees under the Employee Benefit Plans that are “employee benefit plans,” as defined in Section 3(3) of ERISA, in effect immediately prior to the Closing Date; provided, however, that nothing in this Agreement shall obligate the Purchaser to employ any such employee for any period of time or to continue any term or condition of employment or any employee benefit plan, program or arrangement for any period of time. With respect to the employee benefit plans, policies or arrangements that the Purchaser makes available to the Transferred Employees: (i) The Transferred Employees shall receive credit for the service which the Transferred Employees performed for the Seller prior to the Closing Date for purposes of determining their eligibility to participate and vesting (excluding for this purpose, any equity compensation arrangements) under such employee benefit plans, policies or arrangements of the Purchaser. The Transferred Employees shall receive credit for the service which the Transferred Employees performed for the Seller prior to the Closing Date for purposes of determining the accrual of benefits under any vacation pay, severance or service award plan, policy or arrangement of the Purchaser; provided, however, for the year in which the Closing occurs, the number of vacation days and sick days that each Transferred Employee shall be entitled to as an employee of the Second Closing has occurred and (ii) as provided in BHC's 1998 Long-Term Incentive Plan, Purchaser shall be equal to (A) that all unvested options number of unused vacation days and sick days each that such Transferred Employee was entitled to purchase Common Stock which have been issued to Fresh Produce Employees who do not continue in an employment position in BHC or one of its subsidiaries subsequent to the Second Closing vested as of the Second Closing Date under the Seller’s vacation and sick day benefit plans, policies or arrangements, but only to the extent that such unused vacation days and sick days are set forth on Schedule 8.11(e); and (B) such Fresh Produce Employees have three months that number of vacation days and sick days to which each Transferred Employee would be entitled under the terms of the plans, policies or arrangements of the Purchaser pro rated based on the number of days from the Second Closing to exercise any vested options to purchase Common Stock. Prior Date to the Second Closingend of such year. (ii) To the extent applicable with respect to any employee welfare benefit plans (as defined in Section 3(1) of ERISA) that are maintained by the Purchaser, BHC the Transferred Employees (and their eligible dependents): (A) shall take be given credit for their service with the Seller for purposes of satisfying any waiting periods and the application of any pre-existing condition limitations, (B) shall not be subject to any waiting period greater than the waiting period applicable to a corresponding employee welfare benefit plan maintained by the Seller, (C) shall not be subject to any requirements as to evidence of insurability at all corporate action necessary if they were covered immediately prior to cause all unvested options the Closing under a corresponding employee welfare benefit plan maintained by the Seller, and (D) shall be given credit for amounts paid under a corresponding employee welfare benefit plan maintained by the Seller during the applicable period for purposes of applying deductibles, co-payments, out-of-pocket expenses and similar amounts as though such amounts had been paid in accordance with the terms and conditions of the Fresh Produce Employees who do not continue employee welfare benefit plan maintained by the Purchaser. (iii) The Purchaser’s employee benefit plans shall contain whatever provisions are reasonably necessary in an employment position in BHC or one order to effect the provisions of its subsidiaries subsequent to the Second Closing to become vested this Section 8.11(e). (f) Effective as of the Second Closing Date, the Seller shall cease to maintain any Employee Benefit Plan which is a “group health plan” for purposes of Section 4980B of the Code. On and after the Closing Date, the Purchaser will be responsible and liable for providing any required notices under Section 4980B of the Code and for providing “COBRA continuation coverage” (as defined in the regulations issued under Section 4980B of the Code) to all individuals who are “M&A qualified beneficiaries” (as defined in the regulations issued under Section 4980B of the Code) as a result of the transactions contemplated by this Agreement. Therefore, with respect to any Employee Benefit Plan which is a “group health plan,” the Purchaser covenants and agrees that, with respect to all “qualifying events” (as defined in the regulations issued under Section 4980B of the Code, and including those events resulting from the transactions contemplated by this Agreement) that occur prior to or on the Closing Date, the Purchaser shall offer to each of the “M&A qualified beneficiaries” the opportunity to elect “COBRA continuation coverage,” and will provide “COBRA continuation coverage” to “M&A qualified beneficiaries” who are receiving “COBRA continuation coverage” as of the Closing Date or who elect to receive “COBRA continuation coverage” on or after the Closing Date, all at no expense to the Seller. (g) The Seller shall be responsible for any severance obligations arising from or in connection with the transactions contemplated by this Agreement. (h) The Purchaser shall have the right, but not the obligation, to assume any of the Employee Benefit Plans listed on Schedule 6.13. The Purchaser will notify the Seller not less than fifteen days prior to the Closing if the Purchaser decides to assume any of the Employee Benefit Plans. Such notice shall specify the Employee Benefit Plans that the Purchaser is assuming. Any Employee Benefit Plan that is not assumed pursuant to this Section 8.11(h) shall be terminated by the Seller in accordance with Section 8.11(c). Notwithstanding the foregoing, the Seller shall retain all liabilities and obligations under, and shall pay all amounts due pursuant to, all of the Employee Benefit Plans maintained by the Seller or any of its Affiliates as of the Closing. (i) No provision in this Section 8.11 shall (i) create any third-party beneficiary or other rights in any employee or former employee (including any beneficiary or dependent thereof) of the Seller or any other Person other than the parties hereto and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or (iii) constitute or be deemed to constitute an amendment to any employee benefit plan sponsored or maintained by the Purchaser or any of its Affiliates.