Common use of Employees and Benefits Clause in Contracts

Employees and Benefits. With respect to Employee Benefit Plans, credit for service accrued by Continuing Employees (and eligible dependents) for employment with Stonepath and/or the Company prior to the Closing Date shall be recognized (except to the extent necessary to prevent duplication of benefits), any pre-existing condition limitations (to the extent such limitations did not apply to a pre-existing condition under a similar or corresponding Stonepath Employee Benefit Plan) and eligibility waiting periods applicable to any Continuing Employee shall be waived, and employees shall be given credit for amounts paid or vesting under any Stonepath or Company Employee Benefit Plan during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the applicable Employee Benefit Plan of Purchaser. With respect to 401(k) plan matters, Continuing Employees shall be eligible to participate in the Company 401(k) plan to be created by Purchaser, effective within 60 days after the Closing Date. Prior to Closing, the Parties will agree on a list of employees that will be terminated by Stonepath and hired by Purchaser at Closing ("Continuing Employees"). Provided that the Company has established medical plans for the Continuing Employees as of the Closing Date, all such Continuing Employees shall be terminated from Stonepath's Employee Benefit Plans as of the Closing Date, pursuant to Applicable Law, and be covered by Purchaser's plans, including medical coverage, thereafter. To the extent the Purchaser does not have new plans in place on the Closing Date, Stonepath shall continue to maintain coverage for the Continuing Employees for the remainder of the month of the Closing Date at Purchaser's expense, including any expenses of administration. The estimated reimbursement for such medical coverage as determined by Stonepath shall be paid by Purchaser to Stonepath prior to the date that it is due from Stonepath, with an actual reconciliation to follow within thirty (30) days of the delivery to Purchaser of documentation of actual costs.

Employees and Benefits. With respect The Surviving Corporation agrees that, for a period of not less than thirty-six (36) months from the Closing Date, it will not reduce the benefits package (compensation, vacation, sick leave, retirement benefits or any other employment benefits, excluding health benefits and dental benefits which may be modified or reduced as hereinafter provided and extraordinary payments during 2003 for life insurance premiums and retirement plan contributions) currently available to Employee Benefit Plans, credit for service accrued by Continuing employees of TBS. All Employees (and their eligible dependents) of TBS who were eligible for employment with Stonepath and/or the Company prior to the Closing Date shall be recognized (except to the extent necessary to prevent duplication of benefits)coverage under TBS' group health plan will retain, any pre-existing condition limitations (to the extent such limitations did not apply to a pre-existing condition under a similar or corresponding Stonepath Employee Benefit Plan) and eligibility waiting periods applicable to any Continuing Employee shall be waived, and employees shall be given credit for amounts paid or vesting under any Stonepath or Company Employee Benefit Plan during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the applicable Employee Benefit Plan of Purchaser. With respect to 401(k) plan matters, Continuing Employees shall be eligible to participate in the Company 401(k) plan to be created by Purchaser, effective within 60 days after the Closing Date. Prior to Closing, the Parties will agree on a list of employees that will be terminated by Stonepath and hired by Purchaser at Closing ("Continuing Employees"). Provided that the Company has established medical plans for the Continuing Employees as of the Closing Date, coverage under the group health plan sponsored by the Surviving Corporation (the "Surviving Corporation Health Plan"). For a period of not less than thirty-six (36) months from the Closing Date, the Surviving Corporation Health Plan will provide group health plan benefits which are substantially comparable to those provided under TBS' group health plan, and said benefits shall not be modified or reduced during such period; provided, however, such benefits may be modified or reduced if the premium for the Surviving Corporation Health Plan increases by more than 20% over the premium for such plan during the immediately preceding year. In addition, any otherwise applicable waiting periods and pre-existing condition limitations under the Surviving Corporation Health Plan, if any, will be waived with respect to such employees (and their eligible dependents). From and after the Closing Date, the Surviving Corporation shall provide "Continuation Coverage" ((within the meaning of Section 4980B of the Internal Revenue Code of 1986, as amended (the "Code") and Part 6 of Subtitle B of Title I of ERISA) (such statutory provisions are referred to herein collectively as "COBRA")), to all such Continuing Employees shall be terminated from Stonepath's Employee Benefit Plans current or former employees of TBS who are or were directly employed in the management and/or operation of the Business (and their eligible dependents) who either (A) have experienced a "qualifying event" (within the meaning of COBRA) prior to the Closing Date and for whom the period of Continuation Coverage required by COBRA has not, as of the Closing Date, pursuant to Applicable Lawexpired, and be covered by Purchaser's plans(B) are employees of TBS as of the Closing Date but do not become employees of the Surviving Corporation as of the Closing Date or do not otherwise receive group health coverage from the Surviving Corporation as of the Closing Date. In addition, including medical coveragethe Surviving Corporation shall provide group health coverage to employees of TBS who are or were directly employed in the management and/or operation of the Business (and their eligible dependents) who are, thereafter. To the extent the Purchaser does not have new plans in place on as of the Closing Date, Stonepath shall continue to maintain coverage for on a leave of absence governed by the Continuing Employees for Family and Medical Leave Act of 1993, as amended ("FMLA"), in accordance with the remainder requirements of the month of the Closing Date at Purchaser's expense, including any expenses of administration. The estimated reimbursement for such medical coverage as determined by Stonepath shall be paid by Purchaser to Stonepath prior to the date that it is due from Stonepath, with an actual reconciliation to follow within thirty (30) days of the delivery to Purchaser of documentation of actual costsFMLA and COBRA.

Employees and Benefits. With respect (a) Until the first (1st) anniversary of the Closing Date, Purchaser shall (i) cause the Employees as of immediately prior to Employee Benefit Plansthe Closing (the “Continuing Employees”), credit for service accrued while employed, to be provided a base salary and/or hourly rate of pay (as applicable) that is at least equal to the Continuing Employee’s base salary and/or hourly rate of pay (as applicable) as in effect immediately prior to the Closing, and (ii) provide annual cash bonus opportunities and employee welfare and retirement benefits (excluding equity compensation arrangements) that are not less favorable, in the aggregate, to the annual cash bonus opportunities and welfare and retirement benefits provided by Purchaser to similarly-situated employees of Purchaser and its Subsidiaries; provided that Purchaser may elect to keep Continuing Employees on their existing annual cash bonus opportunities, employee welfare and retirement benefits in effect as of the Closing through December 31, 2021. Purchaser shall cause each Continuing Employee and his or her eligible dependents (including all such Continuing Employee’s dependents covered immediately prior to the Closing by a group health plan) to be eligible for coverage under a group health plan maintained by the Company, Purchaser or an Affiliate of Purchaser that (x) provides medical benefits to the Continuing Employee and such eligible dependentsdependents effective immediately upon the Closing Date, to the extent such persons were receiving such benefits under the Company’s group health plan immediately prior to the Closing and (y) either waive plan deductible and co-payment limitations (to the extent satisfied by a Continuing Employee under the Company’s group health plan immediately prior to the Closing) or credits such Continuing Employee, for employment the year during which such coverage under such group health plan begins, with Stonepath and/or any deductibles and co-payments already incurred during such year under a group health plan maintained by the Company. To the extent permitted under the terms of Purchaser’s employee benefits plans, Purchaser shall cause the employee benefit plans and programs maintained after the Closing by Purchaser and its Subsidiaries (including, after the Closing, the Company and its Subsidiaries) to recognize each Continuing Employee’s years of service and level of seniority prior to the Closing Date shall be recognized (except to with the extent necessary to prevent duplication Company and/or any of benefits), any pre-existing condition limitations (to the extent such limitations did not apply to a pre-existing condition under a similar or corresponding Stonepath Employee Benefit Plan) and eligibility waiting periods applicable to any Continuing Employee shall be waived, and employees shall be given credit for amounts paid or vesting under any Stonepath or Company Employee Benefit Plan during the same period its Subsidiaries for purposes of applying deductiblesterms of employment and eligibility and vesting but not benefit accrual under such plans and programs; provided, co-payments that such service credit does not result in a duplication of benefits and out-of-pocket maximums as though such amounts had been paid shall not apply for vesting purposes under any equity compensation arrangement. During the plan year in accordance with which the terms Closing occurs, Purchaser shall cause each employee welfare benefit plan sponsored by Purchaser or a Subsidiary of Purchaser (including, after the Closing, the Company and conditions any of its Subsidiaries) that the applicable Employee Benefit Plan of Purchaser. With respect to 401(k) plan matters, Continuing Employees shall may be eligible to participate in the Company 401(k) plan to be created by Purchaser, effective within 60 days on or after the Closing DateDate to waive any preexisting condition exclusion with respect to participation and coverage requirements applicable to Continuing Employees to the extent such preexisting condition requirements were satisfied under the corresponding Company Plan immediately prior to the Closing. Prior Nothing in this Section 8.5(a) shall be construed to limit the right of Purchaser or its Subsidiaries (including, after the Closing, the Parties will agree on a list Company and any of employees that will its Subsidiaries) to amend or terminate any Company Plan or any Purchaser employee benefit plan or any other employee benefit plan, nor shall anything in this Section 8.5(a) be terminated by Stonepath and hired by construed to require Purchaser at Closing or its Subsidiaries ("Continuing Employees"). Provided that including, after the Closing, the Company has established medical plans and any of its Subsidiaries) to retain the employment of any particular Continuing Employee for the Continuing Employees as any fixed period of time following the Closing Date, all such Continuing Employees shall be terminated from Stonepath's Employee Benefit Plans as of the Closing Date, pursuant to Applicable Law, and be covered by Purchaser's plans, including medical coverage, thereafter. To the extent the Purchaser does not have new plans in place on the Closing Date, Stonepath shall continue to maintain coverage for the Continuing Employees for the remainder of the month of the Closing Date at Purchaser's expense, including any expenses of administration. The estimated reimbursement for such medical coverage as determined by Stonepath shall be paid by Purchaser to Stonepath prior to the date that it is due from Stonepath, with an actual reconciliation to follow within thirty (30) days of the delivery to Purchaser of documentation of actual costs.

Employees and Benefits. With respect (a) As of the Closing Date, all Hired Employees shall cease to accrue benefits under the employee benefit plans, programs and policies of OWNERS, and OWNERS shall cause Current Manager to take all such action as may be necessary to affect such cessation. There shall be no transfer of assets or liabilities of such plans, programs and policies to NEW OPERATORS or to any employee benefit plans of the NEW OPERATORS with regard to the Hired Employees, except as otherwise expressly provided herein. OWNERS shall retain all responsibility for, and NEW OPERATORS shall have no obligation or responsibility for, any of such benefits, except as provided herein. (b) OWNERS shall retain and satisfy any and all responsibility for all, and OWNERS acknowledges that NEW OPERATORS shall have no obligation or responsibility for any, liabilities or obligations relating to, except as expressly assumed by NEW OPERATORS hereunder, (i) any OWNERS employee who is not a Hired Employee Benefit Plans, credit and (ii) any Hired Employee 10370946.3 15 for service accrued by Continuing Employees (and eligible dependents) for employment with Stonepath and/or the Company any period prior to such Hired Employee becoming an employee of the Closing Date NEW OPERATORS while such person was employed by OWNERS or an Affiliate. NEW OPERATORS shall assume and be recognized (except to the extent necessary to prevent duplication of benefits), any pre-existing condition limitations (to the extent such limitations did not apply to a pre-existing condition under a similar or corresponding Stonepath Employee Benefit Plan) and eligibility waiting periods applicable to any Continuing Employee shall be waivedresponsible for all, and employees NEW OPERATORS acknowledges that OWNERS shall be given credit have no obligation or responsibility for amounts paid any, liabilities or vesting under any Stonepath or Company Employee Benefit Plan during the same period for purposes of applying deductibles, co-payments obligations relating to Hired Employees accruing from and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the applicable Employee Benefit Plan of Purchaser. With respect to 401(k) plan matters, Continuing Employees shall be eligible to participate in the Company 401(k) plan to be created by Purchaser, effective within 60 days after the Closing Date. Prior OWNERS represents and warrants that, with respect to Closingthe Facilities, to its knowledge, it has complied with all wage, hour, payroll and Family Medical Leave Act requirements and has funded pension liability under the Parties will agree on a list of employees that will be terminated by Stonepath and hired by Purchaser at plans to which the Hired Employees are entitled. (c) For one (1) year following the Closing ("Continuing Employees"). Provided that the Company has established medical plans Date for the Continuing Facilities, NEW OPERATORS of the Facilities shall provide or cause to be provided to Hired Employees benefit plans, programs and policies (including, without limitation, pension, savings, medical and other plans, programs and policies), excluding incentive compensation plans, each of which is substantially similar to the corresponding benefit plan maintained by NEW OPERATORS for similarly situated employees from time to time during such one-year period, as determined by NEW OPERATORS, subject to applicable law. (d) NEW OPERATORS shall give credit to Hired Employees for purposes of eligibility to participate and to vest (but not for benefit accrual purposes) under the benefit plans, programs and policies (including, without limitation, pension, savings, medical and other plans, programs and policies) in which the Hired Employees participate after the Closing Date, for service by Hired Employees prior to the Closing Date, to the extent such service was taken into account for each such purpose by OWNERS under each corresponding employee benefit plan, program or policy. (e) At Closing OWNERS shall transfer to NEW OPERATORS funds equivalent to and NEW OPERATORS shall assume any and all liability with respect to the earned but unused sick leave and vacation benefits for all Hired Employees and Hired Employees who, as of the Closing Date, are on a leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy or due to work-related injury or illness, as of the respective dates when such Hired Employees return to work at the Facilities. The unused sick leave and vacation benefits for all such Continuing Hired Employees are more particularly described in Schedule 4.02(e) attached hereto. NEW OPERATORS shall be terminated defend, hold harmless and indemnify OWNERS from Stonepath's Employee Benefit Plans any and all claims, causes of action and liability for or relating to all vacation benefits and sick leave but unused as of the Closing Date for Hired Employees (or, in the case of employees of OWNERS who, as of the Closing Date, were on leave of absence pursuant to Applicable LawOWNERS’ Family and Medical Leave of Absence Policy or due to work-related injury or illness, as of the respective dates such Hired Employees return to work at the Facilities) to the extent, but only to the extent, OWNERS transferred funds to NEW OPERATORS at Closing equivalent to said earned attendance bonus, vacation benefits and be covered by Purchaser's plans, including medical coverage, thereaftersick leave. To the extent there is any error in OWNERS’ calculation of the Purchaser does not have new plans funds transferred by OWNERS to NEW OPERATORS to cover claims for or relating to all vacation benefits and sick leave but unused as of the Closing Date for Hired Employees (or, in place on the case of employees of OWNERS who, as of the Closing Date, Stonepath were on leave of absence pursuant to OWNERS’ Family and Medical Leave of Absence Policy or due to work-related injury or illness, as of the respective dates such Hired Employees return to work at the Facilities), OWNERS shall continue to maintain coverage remain solely and exclusively liable 10370946.3 16 and responsible for the Continuing Employees for same and hereby agrees to indemnify and holds harmless NEW OPERATORS from and against all aforesaid claims and liability; provided, however, OWNERS indemnity and hold harmless obligations under this Agreement or the remainder of Asset Purchase Agreement shall not under any circumstances exceed the month of the Closing Date at Purchaser's expense, including any expenses of administrationMaximum Indemnity Amount (as defined in Section 9.04(a) hereof). The estimated reimbursement for such medical coverage as determined by Stonepath shall be paid by Purchaser to Stonepath prior to the date that it is due from Stonepath, with an actual reconciliation to follow within thirty (30) days of the delivery to Purchaser of documentation of actual costs.ARTICLE V

Employees and Benefits. With (a) Purchaser agrees that, for a period of one year following the Closing (or, if earlier, until the date of termination of the relevant employee), the individuals who are employed by the Company as of the Closing Date and who continue in employment with the Company following the Closing Date (the “Continuing Employees”) shall be eligible to receive (i) base salaries or hourly wage rates, as applicable, that are at least as favorable as the base salaries or hourly wage rates provided to such Continuing Employees immediately prior to the Closing Date, and (ii) health and welfare benefits that are substantially similar, in the aggregate, to those provided to such Continuing Employees immediately prior to the Closing Date. Purchaser shall ensure that any employee health and welfare benefit plans or programs it maintains or adopts with respect to Employee Benefit Plans, credit for service accrued by the Continuing Employees (and eligible dependents) for treat employment with Stonepath and/or the Company prior to the Closing Date shall be recognized the same as employment with Purchaser or the Company from and after the Closing Date for purposes of eligibility and vesting (except including, without limitation, the satisfaction of any waiting periods under any welfare benefit plans maintained by Purchaser (the “Purchaser Welfare Plans”)) and, for purposes of any vacation plan or policy it adopts with respect to the extent necessary to prevent duplication of benefits), any Continuing Employees. No pre-existing condition limitations (limitations, exclusions or waiting periods applicable with respect to life and accidental death and dismemberment insurance, disability, sickness and accident and medical benefits under Purchaser Welfare Plans will apply to Continuing Employees to the extent that such limitations did not apply to a pre-existing condition under a similar limitations, exclusions or corresponding Stonepath Employee Benefit Plan) and eligibility waiting periods applicable to any exceed those in effect under the benefit plans maintained by the Company as of the Closing Date. Purchaser Welfare Plans in which a Continuing Employee shall be waivedparticipates after the Closing Date will recognize, and employees shall be given credit for amounts paid or vesting under any Stonepath or Company Employee Benefit Plan during the same period for purposes of applying deductiblessatisfying any deductible, co-payments pays and out-of-pocket maximums as though such amounts had been paid during the plan year in accordance with the terms and conditions of the applicable Employee Benefit Plan of Purchaser. With respect to 401(k) plan matters, Continuing Employees shall be eligible to participate in the Company 401(k) plan to be created by Purchaser, effective within 60 days after the Closing Date. Prior to Closing, the Parties will agree on a list of employees that will be terminated by Stonepath and hired by Purchaser at Closing ("Continuing Employees"). Provided that the Company has established medical plans for the Continuing Employees as of the Closing Date, all such Continuing Employees shall be terminated from Stonepath's Employee Benefit Plans as of the Closing Date, pursuant to Applicable Law, and be covered by Purchaser's plans, including medical coverage, thereafter. To the extent the Purchaser does not have new plans in place on the Closing Date, Stonepath shall continue to maintain coverage for the Continuing Employees for the remainder of the month of which the Closing Date at Purchaser's expenseoccurs, including any expenses of administration. The estimated reimbursement for payment made by such medical coverage as determined by Stonepath shall be paid by Purchaser to Stonepath Continuing Employee in such plan year prior to the date that it is due from StonepathClosing Date toward deductibles, with an actual reconciliation to follow within thirty (30) days of the delivery to Purchaser of documentation of actual costsco-pays and out-of-pocket maximums in any corresponding Employee Benefit Plan.