IN ITS SOLE
DISCRETION.
ALL EMPLOYEES WHO, ON OR IMMEDIATELY AFTER THE CLOSING DATE, ACCEPT
ANY OFFER OF EMPLOYMENT FROM BUYER AND BECOME EMPLOYEES OF BUYER SHALL BE
REFERRED TO HEREIN AS THE "TRANSFERRED EMPLOYEES".
(B)
BUYER AGREES THAT, AT THE CLOSING DATE, IT SHALL PROVIDE BENEFITS SIMILAR
TO THOSE CURRENTLY PROVIDED BY THE COMPANY TO THE TRANSFERRED EMPLOYEES
(INCLUDING VACATION, SICK TIME, HEALTH AND INSURANCE BENEFITS) AND BUYER SHALL
ASSUME, BE RESPONSIBLE FOR, PERFORM AND PAY FOR SUCH BENEFITS FOR THE
TRANSFERRED EMPLOYEES; PROVIDED, HOWEVER, THAT SUCH BENEFITS SHALL NOT INCLUDE
ANY RETIREMENT BENEFITS, INCLUDING BUT NOT LIMITED TO ANY SIMPLE IRA PLANS
PREVIOUSLY MAINTAINED BY THE COMPANY.
BUYER RESERVES THE RIGHT TO TRANSITION
TRANSFERRED EMPLOYEES TO ALTERNATIVE BENEFIT PLANS AT ANY TIME IN ITS SOLE
DISCRETION.
(C)
BUYER SHALL ASSUME ALL LIABILITY FOR PROVIDING AND ADMINISTERING ALL
REQUIRED NOTICES AND BENEFITS UNDER COBRA TO TRANSFERRED EMPLOYEES.
THE COMPANY
SHALL RETAIN ALL LIABILITY FOR PROVIDING AND ADMINISTERING ALL REQUIRED NOTICES
AND BENEFITS UNDER COBRA TO ALL EMPLOYEES OTHER THAN TRANSFERRED EMPLOYEES AND
TO ANY "M&A QUALIFIED BENEFICIARIES" AS DEFINED UNDER TREASURY REGULATION
SECTION 54.4980B-9.
(D)
WITHOUT LIMITING THE GENERALITY OF THE EXCLUDED LIABILITIES, THE COMPANY
AGREES THAT IT SHALL RETAIN, BE RESPONSIBLE FOR, PERFORM AND PAY:
(I)
ALL LIABILITIES (INCLUDING, BUT NOT LIMITED TO, ANY CLAIM OF ANY
GOVERNMENTAL AGENCY, ANY TRUSTEE, ANY FIDUCIARY, ANY PLAN ADMINISTRATOR, ANY
PERSON DEALING WITH ANY PLAN, ANY EMPLOYEE OR ANY BENEFICIARY AND WITHOUT REGARD
TO WHETHER SUCH LIABILITY ARISES PRIOR TO OR AFTER THE CLOSING DATE OR RESULTS
FROM AN EVENT, PRIOR TO OR AFTER THE CLOSING DATE) WHICH RELATE TO (A) ANY
PROGRAM, PLAN, POLICY OR ARRANGEMENT (WHETHER OR NOT TERMINATED) (W) WHICH IS OR
HAS BEEN MAINTAINED, ESTABLISHED, OR OFFERED BY
THE COMPANY, (X) TO WHICH THE
COMPANY CONTRIBUTES OR HAS CONTRIBUTED, (Y) TO WHICH THE COMPANY HAS OR HAS HAD
ANY OBLIGATION TO CONTRIBUTE, OR (Z) TO WHICH THE COMPANY HAS OR HAS HAD ANY
LIABILITY OR POTENTIAL LIABILITY
INCLUDING, BUT NOT LIMITED TO, ANY PLAN; ALL
LIABILITIES RELATING TO ANY SUCH PROGRAM, PLAN, POLICY, OR PLAN, WHICH MAY
RESULT AS A VIOLATION OF LAW OR ANY LIABILITY, INCLUDING ANY POTENTIAL OR ACTUAL
LIABILITY, RELATING TO ANY FAILURE TO COMPLY WITH THE REQUIREMENTS OF LAW;
(II)
DUTIES AND LIABILITIES RELATING TO ANY CLAIMS BY CURRENT OR
FORMER EMPLOYEES OR INDEPENDENT CONTRACTORS (INCLUDING DEPENDENTS, SPOUSES AND
OTHER BENEFICIARIES THEREOF) OF THE COMPANY OR ITS SUBSIDIARIES (OR ANY
PREDECESSORS) FOR:
(A) MEDICAL COSTS AND EXPENSES INCURRED AS A RESULT OF
CLAIMS, INJURIES, FACTS OR CONDITIONS SUFFERED ON OR PRIOR TO THE CLOSING DATE
INCLUDING ANY CLAIMS, COSTS OR EXPENSES RELATING TO OR ARISING UNDER ANY PLAN
(INCLUDING ANY CLAIMS, COSTS OR EXPENSES RELATED TO CONTINUATION COVERAGE
PROVIDED TO ANY FORMER EMPLOYEE OR DEPENDENT THEREOF AS OF OR
43
PRIOR TO THE CLOSING DATE), AND (B) COSTS, EXPENSES AND OTHER LIABILITIES UNDER
ANY WORKERS' COMPENSATION LAWS, REGULATIONS, REQUIREMENTS OR PROGRAMS TO THE
EXTENT RELATED TO ANY CLAIM ARISING FROM OR ALLEGED