Common use of Certain Employee Matters Clause in Contracts

Certain Employee Matters. (a) For a period not to exceed six (6) months following the Closing Date, so long as any employee of the Company or any of the Company Subsidiaries who is employed on the Closing Date (“Company Employees”) continues to be so employed by the Company or a Company Subsidiary during such period, the Company and/or the Company Subsidiaries shall provide each such Company Employee with (A) salary or wages, as applicable, bonus opportunity and vacation eligibility similar to that provided to similarly situated employees of Purchaser and its Affiliates and (B) employee benefits under Purchaser’s (or its Affiliate’s) employee benefits and programs similar to similarly situated employees of Purchaser and its Affiliates. The Company shall bear the cost of severance payments (if any) payable in relation to or otherwise attributable to any Claim of a Company Employee (x) that his employment was terminated after the consummation of the transactions herein contemplated and (y) that he is entitled to any severance payment or benefit under any plan or policy of the Company or any Company Subsidiary, and Company shall indemnify, defend and hold harmless Sellers and their Affiliates from any and all such Claims (and any Losses incurred in connection therewith). Without limiting the generality of the foregoing, for a period not to exceed six (6) months following the Closing Date, Purchaser shall cause the Company to (i) maintain and continue in effect the Company's severance plan as in effect immediately prior to the Closing Date, and not amend, suspend or terminate such plan and (ii) provide Company Employees all benefits under such plan for which they are eligible in accordance with the terms and conditions thereof; provided, however, that no Company Employee shall have an automatic right or entitlement to participate in any Purchaser pension plan (b) After the Closing, the Company and/or the Company Subsidiaries shall provide each Company Employee with credit for service with the Company and any Company Subsidiary (and any predecessor entity respectively thereof) which will count toward full credit for all eligibility and vesting purposes under any employee benefit plans or arrangements maintained by Purchaser or any of its Affiliates (including, without limitation, any welfare plan, incentive plan, vacation program or severance program); provided, however, that no Company Employee shall have an automatic right or entitlement to participate in any Purchaser pension plan. (c) After the Closing, the Company and/or the Company Subsidiaries shall, to the extent permitted under the welfare benefits plan rules of Purchaser and its Affiliates, (A) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Company Employees under any welfare benefit plans of Purchaser or its Affiliates in which such Company Employees may be eligible to participate on or after the Closing Date to the extent any such conditions, exclusions or waiting periods did not apply to any such Company Employee immediately prior to the Closing Date under a similar plan; and (B) provide each Company Employee with credit for any co-payments and deductibles paid by such Company Employee prior to the Closing Date under a benefit plan during the plan year in which the Closing Date occurs in satisfying any applicable deductible or out of pocket requirements under any welfare benefit plans of Purchaser or its Affiliates that any such Company Employee may be eligible to participate in on or after the Closing Date. (d) On and after the Closing Date, the Company and/or the Company Subsidiaries shall provide continuation coverage (within the meaning of COBRA) to the extent required by Law for all eligible Company Employees. (e) Notwithstanding the provisions of this Section 6.8, with respect to Company Employees covered by a collective bargaining agreement applicable to the Company or any Company Subsidiary, the provisions of such collective bargaining agreement shall govern the employee benefits, compensation, employee relations and other matters regarding the employment of such Company Employees to the extent provided therein, and the provisions of this Section 6.8 (other than to the extent required by Law and/or the collective bargaining agreement) shall not apply to such Company Employees. Purchaser acknowledges that a number of Company Employees currently are represented by unions and agrees that it shall after the Closing cause the Company and any Company Subsidiary which has a collective bargaining agreement with any union representing such Company Employees to continue to recognize such union for the remainder of the term of such collective bargaining agreement and discharge its obligations under the applicable collective bargaining agreement. (f) This Agreement shall not: (A) confer upon any employee or former employee of the Company or Company Subsidiary or any representative of any such employee or former employee, any rights or remedies, including any right to employment or continued employment for any period or terms of employment, of any nature whatsoever; (B) be interpreted to prevent or restrict Purchaser or its Affiliates from modifying or terminating the employment or terms of employment of any Company Employee, including the amendment or termination of any employee benefit or compensation plan, program or arrangement, after the Closing Date; or (C) be treated as an amendment or other modification of any employee benefit plan maintained by the Company, any Company Subsidiary, Purchaser or any of their respective Affiliates, or shall limit the right of Purchaser or its Affiliates to amend, terminate or otherwise modify any employee benefit plan maintained by Purchaser or any such Affiliate on or following the Closing Date, to the extent consistent with this Section 6.8.

Certain Employee Matters. (a) For a period not Within three days prior to exceed six (6) months following the Closing Date, so long Seller shall provide to Buyer an updated Schedule 2.11(b) setting forth, as any employee of the most recent date practicable, each Company Group Employee. (b) During the period commencing at the Closing and ending on the date which is twelve (12) months from the Closing (or any if earlier, the date of the employee’s Table of Contents termination of employment with the Company), Buyer shall and shall cause the Company Subsidiaries Group to provide each Company Group Employee who is remains employed on with the Company Group or the Buyer immediately after the Closing Date (“Company EmployeesGroup Continuing Employee”) continues with: (i) base salary or hourly wages which are no less than the base salary or hourly wages provided to be so employed such Company Group Continuing Employee by the Company Group or a Affiliates thereof immediately prior to the Closing; (ii) target bonus opportunities (excluding equity-based compensation), if any, which are no less than the target bonus opportunities (excluding equity-based compensation) provided to such Company Subsidiary during such period, Group Continuing Employee by the Company and/or Group or Affiliates thereof immediately prior to the Company Subsidiaries shall provide each such Company Employee with Closing; (Aiii) salary or wagesseverance benefits that are no less favorable than the practice, as applicable, bonus opportunity and vacation eligibility similar to that provided to similarly situated employees of Purchaser and its Affiliates and (B) employee benefits under Purchaser’s (or its Affiliate’s) employee benefits and programs similar to similarly situated employees of Purchaser and its Affiliates. The Company shall bear the cost of severance payments (if any) payable in relation to or otherwise attributable to any Claim of a Company Employee (x) that his employment was terminated after the consummation of the transactions herein contemplated and (y) that he is entitled to any severance payment or benefit under any plan or policy in effect for such Company Group Continuing Employee immediately prior to the Closing, as provided by the Company Group or Affiliates thereof; and (iv) employee benefit plans which are substantially similar in the aggregate to the Benefit Plans in effect for such Company Group Continuing Employee immediately prior to the Closing, provided, that Buyer shall not be required to provide retiree health coverage to any Company Group Continuing Employee. (c) With respect to any employee benefit plan maintained by Buyer or its Subsidiaries (collectively “Buyer Benefit Plan”) in which any Company Group Continuing Employees will participate effective as of the Closing, Buyer shall, or shall cause the Company Group, to recognize all service of the Company or any Group Continuing Employees with the Company SubsidiaryGroup, and Company shall indemnify, defend and hold harmless Sellers and their Affiliates from any and all as if such Claims (and any Losses incurred in connection therewith). Without limiting the generality of the foregoingservice were with Buyer, for vesting and eligibility purposes in any Buyer Benefit Plan in which such Company Group Continuing Employees may be eligible to participate after the Closing Date; provided, however, such service shall not be recognized to the extent that (i) such recognition would result in a period duplication of benefits, or (ii) such service was not to exceed six recognized under a corresponding Benefit Plan. (6d) months following As of the Closing Date, Purchaser the Seller shall cause the to be vested all unvested account balances held by any Company to (i) maintain and continue in effect the Company's severance Group Continuing Employee under any tax-qualified defined contribution savings plan as in effect immediately prior maintained by Seller or any Affiliate. Prior to the Closing Date, Seller shall take all action necessary to terminate and not amendliquidate the portion of any “non-qualified deferred compensation plan” (within the meaning of Section 409A of the Code) that relates to any Company Group Continuing Employee, suspend or terminate such plan and (ii) provide Company Employees all benefits under such plan for which they are eligible in accordance with the terms and conditions thereof; provided, however, that no Company Employee shall have an automatic right or entitlement to participate in any Purchaser pension planmanner required by Treas. Reg. § 1.409A-3(j)(4)(ix)(B). (be) After Notwithstanding anything herein to the contrary and for the avoidance of doubt, on and after the Closing, the Company and/or the Company Subsidiaries Seller shall provide each Company Employee with credit for service with the Company and any Company Subsidiary (and any predecessor entity respectively thereof) which will count toward full credit remain responsible for all eligibility and vesting purposes under Liabilities related to any employee benefit plans or arrangements maintained by Purchaser or any of its Affiliates Benefit Plan (including, without limitationfor the avoidance of doubt, the retention letters listed on Schedule 2.12(a), but not any welfare plan, incentive plan, vacation program Benefit Plan sponsored or severance programmaintained by the Company Group); provided, however, that no Company Employee shall have an automatic right or entitlement to participate in any Purchaser pension plan. (c) After the Closing, the Company and/or the Company Subsidiaries shall, to the extent permitted under the welfare benefits plan rules of Purchaser and its Affiliates, (A) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Company Employees under any welfare benefit plans of Purchaser or its Affiliates in which such Company Employees may be eligible to participate on or after the Closing Date to the extent any such conditions, exclusions or waiting periods did not apply to any such Company Employee immediately prior to the Closing Date under a similar plan; and (B) provide each Company Employee with credit for any co-payments and deductibles paid by such Company Employee prior to the Closing Date under a benefit plan during the plan year in which the Closing Date occurs in satisfying any applicable deductible or out of pocket requirements under any welfare benefit plans of Purchaser or its Affiliates that any such Company Employee may be eligible to participate in on or after the Closing Date. (d) On and after transition period following the Closing Date, the Company and/or the Company Subsidiaries Buyer shall provide be responsible for COBRA continuation coverage (within the meaning of COBRA) to the extent required by Law for all eligible Company Employees. (e) Notwithstanding the provisions of this Section 6.8, benefits with respect to Company Group Continuing Employees covered by a collective bargaining agreement applicable to on and after the Company or any Company Subsidiary, the provisions end of such collective bargaining agreement shall govern the employee benefits, compensation, employee relations and other matters regarding the employment of such Company Employees to the extent provided therein, and the provisions of this Section 6.8 (other than to the extent required by Law and/or the collective bargaining agreement) shall not apply to such Company Employees. Purchaser acknowledges that a number of Company Employees currently are represented by unions and agrees that it shall after the Closing cause the Company and any Company Subsidiary which has a collective bargaining agreement with any union representing such Company Employees to continue to recognize such union for the remainder of the term of such collective bargaining agreement and discharge its obligations under the applicable collective bargaining agreementtransition period. (f) This Agreement Section 4.6 shall not: (A) be binding upon and inure solely to the benefit of each of the Parties hereto, and nothing in this Section 4.6, express or implied, shall confer upon any employee or former employee of the Company or Company Subsidiary or any representative of any such employee or former employee, other Person any rights or remediesremedies of any nature. This Section 4.6 shall not be construed to establish, including amend or modify any benefit plan, program, agreement or arrangement or create any right in any Company Group Employee or any other Person to employment or continued employment for any period or terms of employment, of any nature whatsoever; (B) be interpreted to prevent or restrict Purchaser or its Affiliates from modifying or terminating the employment or terms of employment of any Company Employee, including the amendment or termination of any employee benefit or compensation plan, program or arrangement, after the Closing Date; or (C) be treated as an amendment or other modification of any employee benefit plan maintained by the Company, any Company Subsidiary, Purchaser or any of their respective Affiliates, or shall limit the right of Purchaser or its Affiliates to amend, terminate or otherwise modify any employee benefit plan maintained by Purchaser or any such Affiliate on or following the Closing Date, to the extent consistent with this Section 6.8duration.

Certain Employee Matters. (a) For a During the period not to exceed six commencing at the Closing and ending on the date which is twelve (612) months following from the Closing Date(or if earlier, so long as any employee the date of the Company or any employee’s termination of employment with the Company), Buyer shall and shall cause the Company Subsidiaries Group to provide each employee set forth on Schedule 10.2 who is remains employed on with the Company Group or the Buyer immediately after the Closing Date (“Company EmployeesGroup Continuing Employee”) continues with: (i) base salary or hourly wages (excluding any overtime wages) which are no less than the base salary or hourly wages provided to be so employed such Company Group Continuing Employee by the Company or a Group immediately prior to the Closing; (ii) target bonus opportunities (excluding equity-based compensation), if any, which are no less than the target bonus opportunities (excluding equity-based compensation) provided 66 to such Company Subsidiary during such period, Group Continuing Employee by the Company and/or the Company Subsidiaries shall provide each such Company Employee with (A) salary or wages, as applicable, bonus opportunity and vacation eligibility similar to that provided to similarly situated employees of Purchaser and its Affiliates and (B) employee benefits under Purchaser’s (or its Affiliate’s) employee benefits and programs similar to similarly situated employees of Purchaser and its Affiliates. The Company shall bear the cost of severance payments (if any) payable in relation to or otherwise attributable to any Claim of a Company Employee (x) that his employment was terminated after the consummation of the transactions herein contemplated and (y) that he is entitled to any severance payment or benefit under any plan or policy of the Company or any Company Subsidiary, and Company shall indemnify, defend and hold harmless Sellers and their Affiliates from any and all such Claims (and any Losses incurred in connection therewith). Without limiting the generality of the foregoing, for a period not to exceed six (6) months following the Closing Date, Purchaser shall cause the Company to (i) maintain and continue in effect the Company's severance plan as in effect Group immediately prior to the Closing Dateand; (iii) severance benefits that are no less favorable than the practice, and not amend, suspend plan or terminate policy in effect for such plan and (ii) provide Company Employees all benefits under such plan for which they are eligible in accordance with Group Continuing Employee immediately prior to the terms and conditions thereof; provided, however, that no Company Employee shall have an automatic right or entitlement to participate in any Purchaser pension planClosing. (b) After With respect to any employee benefit plan maintained by Buyer or its Subsidiaries (collectively “Buyer Benefit Plan”) in which any Company Group Continuing Employees will participate effective as of the Closing, Buyer shall, or shall cause the Company and/or Group, to recognize all service of the Company Subsidiaries shall provide each Company Employee with credit for service Group Continuing Employees with the Company Group, as if such service were with Buyer, for vesting and any Company Subsidiary (and any predecessor entity respectively thereof) which will count toward full credit for all eligibility and vesting purposes under any employee benefit plans or arrangements maintained by Purchaser or any of its Affiliates (including, without limitation, any welfare plan, incentive plan, vacation program or severance program); provided, however, that no Company Employee shall have an automatic right or entitlement to participate in any Purchaser pension plan. (c) After the Closing, the Company and/or the Company Subsidiaries shall, to the extent permitted under the welfare benefits plan rules of Purchaser and its Affiliates, (A) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Company Employees under any welfare benefit plans of Purchaser or its Affiliates Buyer Benefit Plan in which such Company Group Continuing Employees may be eligible to participate on or after the Closing Date to the extent any such conditions, exclusions or waiting periods did not apply to any such Company Employee immediately prior to the Closing Date under a similar plan; and (B) provide each Company Employee with credit for any co-payments and deductibles paid by such Company Employee prior to the Closing Date under a benefit plan during the plan year in which the Closing Date occurs in satisfying any applicable deductible or out of pocket requirements under any welfare benefit plans of Purchaser or its Affiliates that any such Company Employee may be eligible to participate in on or after the Closing Date; provided, however, such service shall not be recognized to the extent that (i) such recognition would result in a duplication of benefits, or (ii) such service was not recognized for similar purposes under a corresponding Employee Benefit Plan. (dc) On This Section 10.2 shall be binding upon and after inure solely to the Closing Datebenefit of each of the Parties hereto, and nothing in this Section 10.2, express or implied, shall confer upon any person any rights or remedies of any nature. This Section 10.2 (i) shall not be construed to establish, amend or modify any benefit plan, program, agreement or arrangement or create any right in any Company Group employee or any other person to continued employment of any nature or duration, (ii) shall not alter or limit the Buyer’s, the Company and/or the Company Subsidiaries shall provide continuation coverage (within the meaning of COBRA) to the extent required by Law for all eligible Company Employees. (e) Notwithstanding the provisions of this Section 6.8, with respect to Company Employees covered by a collective bargaining agreement applicable to the Company Group’s or any Company Subsidiaryof their Affiliates’ ability to amend, the provisions of such collective bargaining modify or terminate any particular benefit plan, program, agreement shall govern the employee benefitsor arrangement, compensation, employee relations and other matters regarding the employment of such Company Employees or (iii) is intended to the extent provided therein, and the provisions of this Section 6.8 (other than to the extent required by Law and/or the collective bargaining agreement) shall not apply to such Company Employees. Purchaser acknowledges that a number of Company Employees currently are represented by unions and agrees that it shall after the Closing cause the Company and any Company Subsidiary which has a collective bargaining agreement with any union representing such Company Employees to continue to recognize such union for the remainder of the term of such collective bargaining agreement and discharge its obligations under the applicable collective bargaining agreement. (f) This Agreement shall not: (A) confer upon any employee current or former employee of the Company or Company Subsidiary or any representative of any such employee or former employee, any rights or remedies, including any right to employment or continued employment for any period of time by reason of this Agreement, or terms any right to a particular term or condition of employment, of any nature whatsoever; (B) be interpreted to prevent or restrict Purchaser or its Affiliates from modifying or terminating the employment or terms of employment of any Company Employee, including the amendment or termination of any employee benefit or compensation plan, program or arrangement, after the Closing Date; or (C) be treated as an amendment or other modification of any employee benefit plan maintained by the Company, any Company Subsidiary, Purchaser or any of their respective Affiliates, or shall limit the right of Purchaser or its Affiliates to amend, terminate or otherwise modify any employee benefit plan maintained by Purchaser or any such Affiliate on or following the Closing Date, to the extent consistent with this Section 6.8.

Certain Employee Matters. (a) For a During the period not to exceed six (6) months following the Closing Date, so long as any employee of the Company or any of the Company Subsidiaries who is employed commencing on the Closing Date and ending on the five (5)-year anniversary of the Closing Date (the “Company EmployeesMeasuring Period”), Buyer shall, or shall cause its Affiliates (including the Company) continues to, grant, award, pay or otherwise disburse at least $5,000,000, in the aggregate (the “Continuing Employee Pool Amount”), in cash or long-term incentive compensation to be so employed by the Company Continuing Employees pursuant to retention, incentive compensation and severance plans or a programs that Buyer or its Affiliates (including the Company) may establish for the Company Subsidiary Continuing Employees during such periodthe Measuring Period. (b) Buyer, the Company and/or Company, the Company Subsidiaries Sellers and the Sellers’ Representative acknowledge and agree that each of the following shall provide each such Company Employee with (A) salary or wagesbe deemed to have been granted, as applicableawarded, bonus opportunity and vacation eligibility similar to that provided to similarly situated employees of Purchaser and its Affiliates and (B) employee benefits under Purchaser’s (or its Affiliate’s) employee benefits and programs similar to similarly situated employees of Purchaser and its Affiliates. The Company shall bear the cost of severance payments (if any) payable in relation to paid or otherwise attributable disbursed pursuant to any Claim of a Company Employee (x) that his employment was terminated after this Section 5.19, and shall be credited to and applied toward the consummation satisfaction of the transactions herein contemplated and (y) that he is entitled to any severance payment or benefit under any plan or policy of the Company or any Company Subsidiary, and Company shall indemnify, defend and hold harmless Sellers and their Affiliates from any and all such Claims (and any Losses incurred in connection therewith). Without limiting the generality of the foregoing, for a period not to exceed six (6) months following the Closing Date, Purchaser shall cause the Company to Continuing Employee Pool Amount: (i) maintain and continue in effect the Company's severance plan as in effect immediately prior all bonuses or other incentive compensation paid to the Closing DateCompany Continuing Employees (including pursuant to the Employment Agreements) during, and not amendor that relate to, suspend or terminate such plan and (ii) provide Company Employees all benefits under such plan for which they are eligible in accordance with the terms and conditions thereofMeasuring Period; provided, however, that, solely for the fiscal year of Buyer ending March 31, 2015, only an aggregate amount up to (but not exceeding) $500,000 of any such bonuses or other incentive compensation paid (whether paid before, on or after March 31, 2015) that no relates to the fiscal year of Buyer ending March 31, 2015 shall be credited to and applied toward the satisfaction of the Continuing Employee Pool Amount; (ii) any severance paid any Continuing Company Employee shall have an automatic right during, or entitlement to participate in any Purchaser pension plan (b) After the Closingthat relates to, the period commencing on the Closing Date and ending on the two (2)-year anniversary of the Closing Date, whether pursuant to the Employment Agreements, Section 5.4(a) or otherwise; and (iii) all restricted stock granted or awarded to any Company and/or Continuing Employee (including pursuant to the Company Subsidiaries shall provide each Company Employee with credit for service Employment Agreements) during the Measuring Period in accordance with the Company and any Company Subsidiary Buyer’s 2006 Long-Term Equity Incentive Plan (and any predecessor entity respectively thereofas the same may be amended, restated, superseded or replaced, the “Buyer LTIP”) which will count toward full credit for all eligibility and vesting purposes under any employee benefit plans (each such grant or arrangements maintained by Purchaser or any award of its Affiliates (includingrestricted stock, without limitation, any welfare plan, incentive plan, vacation program or severance programa “Restricted Stock Awards”); provided, however, that no if, at any time during the Measuring Period, Buyer or any of its Affiliates (including the Company) terminates the employment of any Company Continuing Employee that received a Restricted Stock Award without “Cause” (as defined in the Buyer LTIP), then Buyer shall subsequently grant or award the restricted stock included in such Company Continuing Employee’s Restricted Stock Award to another Company Continuing Employee, and such subsequent grant or award shall (x) be deemed to have an automatic right been granted or entitlement awarded pursuant to participate in any Purchaser pension plan. this Section 5.19 but (cy) After not be credited to and applied toward the Closing, satisfaction of the Continuing Employee Pool Amount (provided that the original Restricted Stock Award relating to the Company and/or Continuing Employee whose employment was so terminated will remain credited to and applied toward the Company Subsidiaries shallsatisfaction of the Continuing Employee Pool Amount), in each case subject to the extent permitted under terms of this Section 5.19. In furtherance of the welfare benefits plan rules of Purchaser foregoing, if, at any time during the Measuring Period and its Affiliates, (A) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Company Employees under any welfare benefit plans of Purchaser or its Affiliates in which such Company Employees may be eligible to participate on or after the Closing Date to the extent any such conditions, exclusions or waiting periods did not apply to any such Company Employee immediately prior to the Closing Date under a similar plan; and (B) provide each Company Employee with credit for any co-payments and deductibles paid by such Company Employee prior to the Closing Date under a benefit plan during the plan year in which the Closing Date occurs in satisfying any applicable deductible or out of pocket requirements under any welfare benefit plans of Purchaser or its Affiliates that any such Company Employee may be eligible to participate in on or after the Closing Date. (d) On and after the Closing Date, the Company and/or the Company Subsidiaries shall provide continuation coverage (within the meaning of COBRA) to the extent required by Law for all eligible Company Employees. (e) Notwithstanding the provisions of this Section 6.8, with respect to Company Employees covered by a collective bargaining agreement applicable to the Company or any Company SubsidiaryContinuing Employee that was awarded or granted a Restricted Stock Award, the provisions of such collective bargaining agreement shall govern the employee benefits, compensation, employee relations and other matters regarding the employment of such Company Employees Continuing Employee with Buyer or any of its Affiliates (including the Company) is terminated either by (i) such Company Continuing Employee for any reason or (ii) Buyer or any of its Affiliates (including the Company) for “Cause” (as defined in the Buyer LTIP), then, in either case, Buyer shall not be required to the extent provided thereingrant or award such Company Continuing Employee’s Restricted Stock Award to any other Person, and the provisions of this Section 6.8 (other than to the extent required by Law and/or the collective bargaining agreement) shall not apply Restricted Stock Award to such Company Employees. Purchaser acknowledges that a number of Company Employees currently are represented by unions Continuing Employee shall be deemed to have been granted or awarded pursuant to this Section 5.19, and agrees that it shall after be credited to and applied toward the Closing cause the Company and any Company Subsidiary which has a collective bargaining agreement with any union representing such Company Employees to continue to recognize such union for the remainder satisfaction of the term of such collective bargaining agreement and discharge its obligations under the applicable collective bargaining agreementContinuing Employee Pool Amount. (f) This Agreement shall not: (A) confer upon any employee or former employee of the Company or Company Subsidiary or any representative of any such employee or former employee, any rights or remedies, including any right to employment or continued employment for any period or terms of employment, of any nature whatsoever; (B) be interpreted to prevent or restrict Purchaser or its Affiliates from modifying or terminating the employment or terms of employment of any Company Employee, including the amendment or termination of any employee benefit or compensation plan, program or arrangement, after the Closing Date; or (C) be treated as an amendment or other modification of any employee benefit plan maintained by the Company, any Company Subsidiary, Purchaser or any of their respective Affiliates, or shall limit the right of Purchaser or its Affiliates to amend, terminate or otherwise modify any employee benefit plan maintained by Purchaser or any such Affiliate on or following the Closing Date, to the extent consistent with this Section 6.8.

Certain Employee Matters. (a) For a period This transaction involves the sale of assets only and does not involve the transfer of any Employees from Seller to exceed six (6) months following the Closing Date, so long any operation of Buyer or its Affiliates and thus nothing herein shall be construed as any employee of the Company obligating Buyer to offer employment to or hire any of the Company Subsidiaries who is employed on the Closing Date (“Company Seller’s Employees”) continues to be so employed by the Company or a Company Subsidiary during such period, the Company and/or the Company Subsidiaries shall provide each such Company Employee with (A) salary or wages, as applicable, bonus opportunity and vacation eligibility similar to that provided to similarly situated employees of Purchaser and its Affiliates and (B) employee benefits under Purchaser’s (or its Affiliate’s) employee benefits and programs similar to similarly situated employees of Purchaser and its Affiliates. The Company shall bear the cost of severance payments (if any) payable in relation to or otherwise attributable to any Claim of a Company Employee (x) that his employment was terminated after the consummation of the transactions herein contemplated and (y) that he is entitled to any severance payment or benefit under any plan or policy of the Company or any Company Subsidiary, and Company shall indemnify, defend and hold harmless Sellers and their Affiliates from any and all such Claims (and any Losses incurred in connection therewith). Without limiting the generality of the foregoing, for a period not to exceed six (6) months following the Closing Date, Purchaser shall cause the Company to (i) maintain and continue in effect the Company's severance plan as in effect immediately prior to the Closing Date, and not amend, suspend or terminate such plan and (ii) provide Company Employees all benefits under such plan for which they are eligible in accordance with the terms and conditions thereof; provided, however, that no Company Employee shall have an automatic right or entitlement to participate in any Purchaser pension plan. (b) After At any time prior to or after the Closing (but if prior to the Closing, contingent upon the Company and/or Closing), Buyer may offer employment, in its sole discretion and in accordance with its particular staffing needs, to any Employees, including CBA Employees subject to the Company Subsidiaries shall provide each Company Collective Bargaining Agreement, other than the Employee with credit for service with set forth on Section 7.08 of the Company and any Company Subsidiary (and any predecessor entity respectively thereof) which will count toward full credit for all eligibility and vesting purposes under any employee benefit plans or arrangements maintained by Purchaser or any of its Affiliates (including, without limitation, any welfare plan, incentive plan, vacation program or severance program); provided, however, that no Company Employee shall have an automatic right or entitlement to participate in any Purchaser pension planSeller Disclosure Schedule. (c) After the ClosingIf Buyer or its Affiliates hire any such CBA Employees, the Company and/or the Company Subsidiaries Buyer shall, but only if and then to the extent permitted required by Law, (i) become a successor employer under the welfare benefits plan rules of Purchaser and its Affiliates, (A) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Company Employees under any welfare benefit plans of Purchaser or its Affiliates in which such Company Employees may be eligible to participate on or after the Closing Date to the extent any such conditions, exclusions or waiting periods did not apply to any such Company Employee immediately prior to the Closing Date under a similar plan; Collective Bargaining Agreement and (Bii) provide each Company Employee with credit assume its terms and conditions as required by the Collective Bargaining Agreement, provided that Seller shall remain responsible, as provided elsewhere in this Agreement, for any co-payments and deductibles paid by liabilities related to such Company Employee prior to the Closing Date under a benefit plan during the plan year in CBA Employees which the Closing Date occurs in satisfying any applicable deductible were owed or out of pocket requirements under any welfare benefit plans of Purchaser or its Affiliates that any such Company Employee may be eligible to participate in on or after accrued through but not including the Closing Date. (d) On Neither Buyer nor any of its Affiliates shall take any action (including with respect to the CBA Employees) which Buyer reasonably believes is likely to have the effect of (or that does have the effect of) causing Seller or its Affiliates to suffer liabilities or Damages (excluding, for purposes of this subparagraph only, attorneys fees) (i) for obligations arising after the Closing under or pursuant to the Collective Bargaining Agreement or applicable Law related thereto or (ii) because of any offers of employment or similar status to any CBA Employees before or after the Closing or (iii) any binding findings (by settlement or otherwise) that any actions of Buyer or its Affiliates, before or after the Closing, resulted in a breach of the Collective Bargaining Agreement or applicable Law by Buyer, Seller or their respective Affiliates. (e) In the event Seller becomes a party to an unfair labor practice charge, an arbitration or other proceeding which relates in any way to the rights of CBA Employees under the Collective Bargaining Agreement arising out of the Transaction, Seller shall promptly notify Buyer of any such proceeding and consult with Buyer regarding the same. Seller shall be precluded, without Buyer’s specific consent, from resolving any such proceeding in a manner that would be deemed binding upon Buyer or that would be reasonably likely to cause liabilities or obligations to Buyer. (f) Should any Other Employee wish to accept an offer of employment extended by Buyer, the Other Employee must voluntarily sever his/her employment relationship with Seller before commencing employment with Buyer. Should that occur, Seller will be responsible for any obligation owed to the Other Employee pursuant to the terms of Seller’s plans and agreements, including any of Seller’s benefit plans. (g) Buyer may not offer employment to the Employee set forth on Section 7.08 of the Seller Disclosure Schedule, and, for a period ending two (2) years after the Closing Date, neither Buyer not any of its Affiliates shall hire, induce, solicit or encourage, or attempt to induce, solicit or encourage, whether directly or indirectly, the Employee set forth on Section 7.08 of the Seller Disclosure Schedule; provided that a general advertisement or other disclosure of a general search that is not targeted or directed to such individual will not violate the covenants contained in this Section 7.08(g). (h) Seller shall be responsible for the payment of all wages, accrued but unused vacation, paid time off and other remuneration or compensation due to all Other Employees, with respect to their services as employees of Seller through the Closing Date, including (i) the payment of any termination, severance or similar payments under applicable Law or pursuant to the terms of any applicable severance plan, policy, agreement or arrangement of Seller to any Other Employees and (ii) the cost of workers’ compensation claims, both medical and disability, for any Other Employee that relate to loss events occurring on or before the Closing Date. Buyer shall assume and be responsible for all obligations, liabilities and commitments with respect to employment, employee benefits, and related matters with respect to all Other Employees hired by Buyer that are accrued and owing from and after the Closing Date, the Company and/or the Company Subsidiaries shall provide continuation coverage (within the meaning of COBRA) to the extent required by Law for all eligible Company Employees. (e) Notwithstanding the provisions of this Section 6.8, with respect to Company Employees covered by a collective bargaining agreement applicable to the Company or any Company Subsidiary, the provisions of such collective bargaining agreement shall govern the employee benefits, compensation, employee relations and other matters regarding the employment of such Company Employees to the extent provided therein, and the provisions of this Section 6.8 (other than to the extent required by Law and/or the collective bargaining agreement) shall not apply to such Company Employees. Purchaser acknowledges that a number of Company Employees currently are represented by unions and agrees that it shall after the Closing cause the Company and any Company Subsidiary which has a collective bargaining agreement with any union representing such Company Employees to continue to recognize such union for the remainder of the term of such collective bargaining agreement and discharge its obligations under the applicable collective bargaining agreement. (f) This Agreement shall not: (A) confer upon any employee or former employee of the Company or Company Subsidiary or any representative of any such employee or former employee, any rights or remedies, including any right to employment or continued employment for any period or terms of employment, of any nature whatsoever; (B) be interpreted to prevent or restrict Purchaser or its Affiliates from modifying or terminating the employment or terms of employment of any Company Employee, including the amendment or termination of any employee benefit or compensation plan, program or arrangement, after the Closing Date; or (C) be treated as an amendment or other modification of any employee benefit plan maintained by the Company, any Company Subsidiary, Purchaser or any of their respective Affiliates, or shall limit the right of Purchaser or its Affiliates to amend, terminate or otherwise modify any employee benefit plan maintained by Purchaser or any such Affiliate on or following the Closing Date, to the extent consistent with this Section 6.8.

Certain Employee Matters. (a) For Prior to the Closing Date, Seller shall update the list of the Employees as disclosed on Schedule 5.10(a) hereto to reflect new hires and terminations of employment between the date of this Agreement and November 2, 2012. (b) Prior to or on November 16, 2012, the Purchaser or an Affiliate thereof (each a period “Purchaser Benefit Party,” and collectively, “Purchaser Benefit Parties”) shall make offers of employment in writing to the Employees who are set forth on the list described in Section 5.10(a), which offers shall be for employment with the Purchaser or a Purchaser Benefit Party commencing on the applicable Employee Commencement Effective Time and otherwise on the terms and conditions set forth in this Section 5.10. Each such Employee shall have five (5) Business Days from the receipt of such an offer to accept. Neither the Sellers nor any of its Affiliates (each a “Seller Benefit Party,” and collectively, “Seller Benefit Parties”) shall induce or otherwise attempt to influence any such Employee to resign or to not accept his or her offer of employment from the Purchaser. Each Employee, who shall have accepted the Purchaser’s offer of employment and who shall meet the Purchaser Benefit Parties’ conditions of employment described in Schedule 5.10(b)(i) hereto (the “Purchaser Employment Conditions”) shall be hired by the applicable Purchaser Benefit Party, it being understood that (i) such Employee will thereafter become an employee of such Purchaser Benefit Party (“Purchaser Employee”) for purposes of this Section 5.10 effective as of the applicable Employee Commencement Effective Time and (ii) the parties hereto and their Affiliates will cooperate in good faith to exceed six effect the hiring of any Employees set forth on the list described in Section 5.10(a), who (6x) are absent from work due to short or long-term disability or an authorized leave of absence and return to work within ninety (90) days following the Closing Date, and (y) shall meet the Purchaser Employment Conditions (any such Employee, a “Leave Employee”). If any Employee requires a work permit or employment pass as disclosed on Schedule 5.10(b)(ii) hereto for his or her employment with the Purchaser or any of the Purchaser Benefit Parties, the Purchaser shall, and shall cause the Purchaser Benefit Parties to, use commercially reasonable efforts to cause any such permit or pass to be obtained and in effect prior to the Employee Commencement Effective Time, and the Sellers shall, and shall cause the Seller Benefit Parties to, take all reasonably necessary or appropriate action at the Purchaser’s expense, as reasonably requested by the Purchaser, to assist in obtaining any such permit or pass prior to the Employee Commencement Effective Time. (c) The Purchaser’s offers of employment to each Employee shall provide for employment on the following terms and conditions, which terms and conditions the Purchaser shall maintain or cause the applicable Purchaser Benefit Party to maintain for each Purchaser Employee for at least twelve (12) months following the Closing Date, so long as any employee of the Company or any of the Company Subsidiaries who is employed on the Closing Date (“Company Employees”) continues to be so or such shorter period as a Purchaser Employee is employed by the Company or a Company Subsidiary during such period, the Company and/or the Company Subsidiaries shall provide each such Company Employee with (A) salary or wages, as applicable, bonus opportunity and vacation eligibility similar to that provided to similarly situated employees of Purchaser and its Affiliates and (B) employee benefits under Purchaser’s (or its Affiliate’s) employee benefits and programs similar to similarly situated employees of Purchaser and its Affiliates. The Company shall bear the cost of severance payments (if any) payable in relation to or otherwise attributable to any Claim of a Company Employee (x) that his employment was terminated after the consummation of the transactions herein contemplated and (y) that he is entitled to any severance payment or benefit under any plan or policy of the Company or any Company Subsidiary, and Company shall indemnify, defend and hold harmless Sellers and their Affiliates from any and all such Claims (and any Losses incurred in connection therewith). Without limiting the generality of the foregoing, for a period not to exceed six (6) months following the Closing Date, Purchaser shall cause the Company to ): (i) maintain and continue employment in effect a comparable position to the Company's severance plan position such Employee held with the Sellers or their Affiliates immediately prior to the Closing Date, (ii) the same or greater base salary or rate of pay as in effect immediately prior to the Closing Date, (iii) other compensation and not amendemployee benefits that are substantially equivalent in the aggregate to the compensation and benefits that are provided by Sellers and its Affiliates to such Employee immediately prior to the Closing Date, suspend or terminate such plan and (iiiv) provide Company severance payments and benefits that are substantially equivalent to the severance benefits provided to Employees all benefits under such plan for which they are eligible in accordance with the terms and conditions thereofLafarge North America Inc. Severance Pay Plan; provided, however, that no Company Employee the terms and conditions of the Purchaser Employees who are covered by the Labor Agreements (the “Represented Employees”) shall have an automatic right be as set out in the applicable Labor Agreement until such Labor Agreement’s expiration, modification or entitlement to participate termination in any Purchaser pension planaccordance with its terms or applicable Law. (bd) After Prior to the Closing, the Company and/or Sellers and the Company Subsidiaries Purchaser shall provide each Company Employee with credit cooperate and the Purchaser shall take all action reasonably necessary in order for service with the Company and any Company Subsidiary (and any predecessor entity respectively thereof) which will count toward full credit Purchaser to assume, effective for all eligibility and vesting purposes under any employee benefit plans or arrangements maintained by Purchaser or any of its Affiliates (including, without limitation, any welfare plan, incentive plan, vacation program or severance program); provided, however, that no Company Employee shall have an automatic right or entitlement to participate in any Purchaser pension plan. (c) After periods after the Closing, the Company and/or Labor Agreements; provided, that the Company Subsidiaries shall, liabilities and obligations under the Labor Agreements shall be assumed only to the extent permitted that such liabilities and obligations arise, relate to and are required to be performed during periods after the Closing. Notwithstanding any provision in this Agreement to the contrary, in no event shall the Purchaser Benefit Parties become responsible for liabilities or other obligations under the welfare benefits plan rules Labor Agreements that arise or otherwise relate to periods occurring prior to the Closing. The Purchaser shall give written notice to the counterparties to the Labor Agreements regarding Purchaser’s assumption of the Labor Agreements when and as required by the Labor Agreements. (e) As soon as practicable following the Closing, the Purchaser and its Affiliates, shall enter into arrangements with the Multiemployer Plans described in Schedule 5.10(e) hereto (A“Covered Multiemployer Plans”) waive all limitations as to preexisting conditions, exclusions and waiting periods become a new contributing employer therein with respect to participation the Business and coverage requirements applicable effective for periods on and after the Closing. With respect to the Company Employees under any welfare benefit plans Covered Multiemployer Plans, the parties acknowledge and agree that they do not intend for the transactions contemplated by this Agreement to constitute a withdrawal from the Covered Multiemployer Plans but instead intend to satisfy the conditions set forth in Section 4204 of ERISA in respect of the Covered Multiemployer Plans. In furtherance thereof, the parties agree that they will cooperate in supplying information, documents and communications with the Covered Multiemployer Plans involved, and that the Purchaser or its Affiliates in which such Company Employees may be eligible to participate on or shall maintain, for a period of five (5) plan years commencing with the first (1st) plan year beginning after the Closing Date Date, either a bond issued by a corporate surety company that is an acceptable surety for purposes of Section 412 of ERISA or an amount held in escrow by a bank or similar financial institution, satisfactory to such Covered Multiemployer Plan (as applicable, “4204 Bond”), which bond or escrow will be paid to the extent applicable Covered Multiemployer Plan if the Purchaser withdraws from the Covered Multiemployer Plan or fails to make a contribution when due at any such conditionstime during the first five (5) plan years beginning after the Closing Date, exclusions or waiting periods did not apply to any such Company Employee immediately prior in an amount equal to the Closing Date under a similar plan; greater of: (i) the average annual contribution required to be made by the Sellers and (B) provide each Company Employee with credit for any co-payments and deductibles paid by such Company Employee prior Seller Benefit Parties to the Closing Date Covered Multiemployer Plan with respect to the operations under a benefit the applicable Labor Agreement for the three (3) plan during years preceding the plan year in which the Closing Date occurs in satisfying any applicable deductible or out of pocket requirements under any welfare benefit plans of Purchaser or its Affiliates that any such Company Employee may be eligible to participate in on or after the Closing Date.occurs; and (dii) On the annual contribution that the Sellers and after the Closing Date, the Company and/or the Company Subsidiaries shall provide continuation coverage (within the meaning of COBRA) Seller Benefit Parties were required to make to the extent required by Law for all eligible Company Employees. (e) Notwithstanding the provisions of this Section 6.8, Covered Multiemployer Plan with respect to Company Employees covered by a collective bargaining agreement applicable to the Company or any Company Subsidiary, the provisions of such collective bargaining agreement shall govern the employee benefits, compensation, employee relations and other matters regarding the employment of such Company Employees to the extent provided therein, and the provisions of this Section 6.8 (other than to the extent required by Law and/or the collective bargaining agreement) shall not apply to such Company Employees. Purchaser acknowledges that a number of Company Employees currently are represented by unions and agrees that it shall after the Closing cause the Company and any Company Subsidiary which has a collective bargaining agreement with any union representing such Company Employees to continue to recognize such union for the remainder of the term of such collective bargaining agreement and discharge its obligations operations under the applicable collective bargaining agreement. Labor Agreement for the last plan year prior to the plan year in which the Closing Date occurs. The Sellers acknowledge and agree that they will be secondarily liable to each Covered Multiemployer Plan for withdrawal liability if the Purchaser withdraws from either Covered Multiemployer Plan within five (f5) This Agreement shall not: (A) confer upon any employee or former employee of the Company or Company Subsidiary or any representative of years and does not pay its withdrawal liability and any such employee or former employee, any rights or remedies, including any right to employment or continued employment withdrawal liability shall be considered an Assumed Liability under this Agreement and the Parent and the Purchaser shall indemnify the Sellers for any period or terms of employment, of any nature whatsoever; (B) be interpreted to prevent or restrict Purchaser or its Affiliates from modifying or terminating the employment or terms of employment of any Company Employee, including the amendment or termination of any employee benefit or compensation plan, program or arrangement, after the Closing Date; or (C) be treated as an amendment or other modification of any employee benefit plan maintained by the Company, any Company Subsidiary, Purchaser or any of their respective Affiliates, or shall limit the right of Purchaser or its Affiliates to amend, terminate or otherwise modify any employee benefit plan maintained by Purchaser or any such Affiliate on or following the Closing Date, to the extent consistent with this Section 6.8amounts.