EQUITABLE
RELIEF WITHOUT POSTING ANY BOND OR OTHER UNDERTAKING.
5.2.
PAYMENT RECEIVED. IN THE EVENT THAT A PARTY RECEIVES ANY
PAYMENT OR OTHER AMOUNT OWING TO SUCH PARTY BUT ALLOCATED TO ANOTHER PARTY
PURSUANT TO THIS AGREEMENT, THE RECEIVING PARTY AGREES TO FORWARD SUCH PAYMENTS
IN GOOD FAITH AS PROMPTLY AS PRACTICABLE TO THE APPLICABLE PARTY.
5.3.
EMPLOYEES.
(A)
CONTEMPORANEOUSLY WITH THE CLOSING, SELLER SHALL TERMINATE ALL
EMPLOYEES WHO WORK EXCLUSIVELY AT THE ACQUIRED LOCATION (THE "EMPLOYEES").
SELLER SHALL BE SOLELY RESPONSIBLE FOR ALL TERMINATION PAYMENTS AND OBLIGATIONS
TO SUCH EMPLOYEES, INCLUDING, WITHOUT LIMITATION, ANY SEVERANCE AND OTHER COSTS
AND EXPENSES INCURRED IN CONNECTION WITH SUCH TERMINATION. THROUGH THE CLOSING
DATE, SELLER SHALL COMPLY WITH ITS COBRA OBLIGATIONS, IF ANY.
(B)
UPON THE OCCURRENCE OF THE CLOSING, BUYER AND/OR BUYER PARENT MAY,
BUT ARE NOT OBLIGATED TO, OFFER TO THOSE EMPLOYEES IT SELECTS EMPLOYMENT BY
BUYER AND/OR BUYER PARENT; PROVIDED, HOWEVER, THAT BUYER AND BUYER PARENT AGREE
THAT ANY SUCH EMPLOYMENT OFFER MADE TO AN EMPLOYEE SHALL OFFER A POSITION WITH
THE BUYER AND/OR THE BUYER PARENT'S THAT PROVIDES SUCH EMPLOYEE WITH (I) THE
SAME BASE PAY AS SUCH EMPLOYEE RECEIVED IN THE POSITION HE OR SHE HELD
IMMEDIATELY PRIOR TO THE CLOSING AND (II) BONUSES, BENEFITS, AND INCENTIVE
COMPENSATION THAT ARE NOT LESS FAVORABLE TO SUCH EMPLOYEE THAN
19
THE BONUSES, BENEFITS, AND INCENTIVE COMPENSATION PROVIDED BY THE BUYER AND/OR
BUYER PARENT TO ITS EMPLOYEES IN POSITIONS COMPARABLE TO THE POSITION OFFERED BY
THE BUYER AND/OR BUYER PARENT TO SUCH EMPLOYEE. SUBJECT THE OTHER PROVISIONS OF
THIS §5.3, WITH RESPECT TO ANY "EMPLOYEE BENEFIT PLAN", AS DEFINED IN SECTION
3(3) OF ERISA, MAINTAINED BY BUYER AND/OR BUYER PARENT (INCLUDING ANY SEVERANCE
PLAN), FOR ALL PURPOSES, INCLUDING DETERMINING ELIGIBILITY TO PARTICIPATE AND
VESTING, SERVICE WITH THE SELLER OR ANY SUBSIDIARY OR PREDECESSOR OF THE SELLER
SHALL BE TREATED AS SERVICE WITH BUYER, BUYER PARENT, OR ANY OF THEIR
SUBSIDIARIES; PROVIDED, HOWEVER, THAT SUCH SERVICE NEED NOT BE RECOGNIZED TO THE
EXTENT THAT SUCH RECOGNITION WOULD RESULT IN ANY DUPLICATION OF BENEFITS.
(C)
EMPLOYEES WHO ACCEPT OFFERS OF EMPLOYMENT MADE BY BUYER AND/OR
BUYER PARENT PURSUANT TO §5.3(B) SHALL BE REFERRED TO HEREINAFTER AS "HIRED
EMPLOYEES." FOR ALL PERIODS FOLLOWING THE CLOSING DATE THE BUYER AND/OR BUYER
PARENT HEREBY (I) ACKNOWLEDGE AND AGREE THAT THE SELLER SHALL NOT BE RESPONSIBLE
FOR PAYING ANY SALARY, WAGES, PENSION, RETIREMENT, SAVINGS, HEALTH, WELFARE AND
OTHER BENEFITS (WHETHER ARISING BY CONTRACT, PLAN, STATUTE OR OTHERWISE) WITH
RESPECT TO SUCH HIRED EMPLOYEES IN CONNECTION WITH THEIR EMPLOYMENT BY THE BUYER
AND/OR BUYER PARENT AND (II) AGREE TO COMPLY WITH THEIR COBRA OBLIGATIONS, IF
ANY, IN THE EVENT THAT, SUBSEQUENT TO THEIR HIRE BY THE BUYER AND/OR BUYER
PARENT, THE EMPLOYMENT OF SUCH HIRED EMPLOYEES IS TERMINATED BY THE BUYER AND/OR
BUYER PARENT.
5.4.
REIMBURSEMENT FOR RETURNS AND GIFT CERTIFICATES. IN THE EVENT
THAT, WITHIN SIXTY (60) CALENDAR DAYS FOLLOWING THE CLOSING DATE, THE BUYER
ACCEPTS EITHER OF THE FOLLOWING:
(A)
THE RETURN OF A RETAIL