Common use of Company Employee Matters Clause in Contracts

Company Employee Matters. (a) As soon as practicable following the date hereof, Yuma shall meet with employees of the DPAC Companies (i) who have expressed an interest in continuing employment with the Yuma Companies or the DPAC Companies after the Merger Effective Time, and (ii) who Yuma has an interest in continuing the employment, and in each such case, Yuma shall negotiate in good faith with such person to determine terms of his or her continuing employment, including compensation and benefits on terms substantially comparable, in the aggregate, to the terms of employment of such Persons with the DPAC Companies or, if greater, to similarly situated employees of the Yuma Companies. If Yuma continues the employment of any such employee or any such employee accepts an offer to become an employee of the Yuma Companies effective immediately following the Merger Effective Time, (each such employee a “Continuing Employee”), the Company shall reduce the Company Aggregate Severance Amount by an amount commensurate with such employee’s unpaid severance benefits. Yuma and the Company shall agree on the list of all such Continuing Employees two (2) Business Days prior to the Closing. Employment of the employees of any DPAC Company who are not Continuing Employees shall be terminated by the Company as of the Merger Effective Time. (b) All Continuing Employees will be provided credit for their service with the DPAC Companies under any Yuma Employee Plan or other plan in which the Continuing Employee participates after the Merger Effective Time as credited to such employees under a similar Company Employee Plan. (c) Prior to the Merger Effective Time, the Company shall make severance payments to employees and officers of the DPAC Companies in the aggregate amount of up to $4,713,830 (“Company Aggregate Severance Amount”) in accordance with either (i) the terms of the respective employment agreement for the executives listed in Section 6.21(c) of the Company Disclosure Schedule, if applicable, or (ii) the severance policies of the DPAC Companies and pursuant to the authorization of the Company Board, provided, that the Company Aggregate Severance Amount shall be subject to reduction in the amount of each Continuing Employee’s unpaid severance benefits as a result of employment of the Continuing Employees by Yuma or its Subsidiaries (including the DPAC Companies) effective immediately after the Merger Effective Time; provided, further, that to the extent that the Closing does not occur in June 2016, such Company Aggregate Severance Amount shall be increased or decreased, as applicable, by an amount equal to approximately $7,600 per month, as pro-rated for any partial month, to the extent that the Closing occurs after June 2016 or prior to June 2016, respectively. In addition, prior to the Merger Effective Time, the Company Board may, in its discretion, issue to certain employees and officers of the DPAC Companies additional Company Restricted Shares in satisfaction of the cancellation of any such employee’s and officer’s Company Options pursuant to Section 3.02(a), which Company Restricted Shares shall be subject to vesting and limitations as provided in Section 3.02(b). Further, prior to the Merger Effective Time, the Company shall pay each employee (except for Continuing Employees) for vacation time which has been accrued but not yet taken, and for any reasonable unreimbursed employee expenses, in accordance with the Company's normal business practices. (d) Prior to the Merger Effective Time, (i) the Company shall pay or award performance bonuses, whether in the form of cash, Company Common Stock or Company Restricted Shares, to officers and employees of the DPAC Companies with respect to their 2015 fiscal year in accordance with the Company’s compensation policies, provided that no such bonus shall exceed 100% of the target bonus for any such officer or employee and the aggregate amount of such performance bonuses shall not exceed $1,353,993; and (ii) the Company shall pay or award performance bonuses, whether in the form of cash, Company Common Stock or Company Restricted Shares, to officers and employees of the DPAC Companies with respect to the period from January 1, 2016 through the Merger Effective Time in accordance the Company’s compensation policies; provided that the 2016 target bonus shall be the same as the 2015 target bonus and the amount paid with respect to each such bonus shall be pro-rated for such period and shall not exceed an amount equal to 100% of the target bonus for such officer or employee after giving effect to such pro-ration. (e) With respect to each Continuing Employee, Yuma shall continue the Company Employee Plan that is a group health plan within the meaning of COBRA and that is in effect immediately prior to the Merger Effective Time (the “Company Group Health Plan”) or, if such continuance is not available for continuance, a Yuma Employee Plan that is in the aggregate substantially the same as the Company Group Health Plan, from the Merger Effective Time through December 31, 2016, and thereafter, will provide coverage under the group health plan of Yuma as in effect from time to time. With respect to any employee of a DPAC Company who is not a Continuing Employee, Yuma shall provide continuation of group health coverage in accordance with COBRA under the Company Group Health Plan or, if such continuance is not available for continuance, a Yuma Employee Plan that is in the aggregate substantially the same as the Company Group Health Plan, from the Merger Effective Time through December 31, 2016, and thereafter, will provide continuation of group health coverage in accordance with COBRA under the group health plan of Yuma as in effect from time to time. In addition, for the period from the Merger Effective Time until December 31, 2016, Yuma will pay the same share of the aggregate group health insurance cost for such group health plan that the DPAC Companies paid for the policy period immediately prior to the Merger Effective Time, including for any employee of the DPAC Companies who is not a Continuing Employee and who elects COBRA continuation. (f) Prior to the Merger Effective Time, the Company Employee Plan that is qualified as a 401(k) plan (the “Company 401(k) Plan”) shall be terminated by the Company, and it is intended that all distributions from the Company 401(k) Plan will be made within ninety (90) days following the Merger Effective Time. (g) The provisions in this Section 6.21 are intended for the sole benefit of the parties hereto, and shall not inure to the benefit of any other entity or Person (other than permitted assigns of the parties hereto) either as a third party beneficiary or otherwise.

Company Employee Matters. (a) As soon as practicable following the date hereof, Yuma shall meet with Schedule 4.13(a)(i) sets forth a complete and correct list of all current employees of each of the DPAC Companies Company and Acquired Subsidiaries, showing for each the following: (i) who have expressed an interest in continuing employment with the Yuma Companies or the DPAC Companies after the Merger Effective Time, and name; (ii) who Yuma has an interest in continuing the employmenthire date; (iii) current job title; (iv) actual base compensation, bonus, commission and in each such caseother remuneration paid during 2013; and (v) 2014 base compensation level and target bonus, Yuma shall negotiate in good faith with such person to determine terms of his or her continuing employment, including compensation commission and benefits on terms substantially comparable, in the aggregate, to the terms of employment of such Persons with the DPAC Companies or, if greater, to similarly situated employees of the Yuma Companiesother remuneration. If Yuma continues the employment of any such employee or any such employee accepts an offer to become an employee of the Yuma Companies effective immediately following the Merger Effective Time, (each such employee Schedule 4.13(a)(ii) sets forth a “Continuing Employee”), the Company shall reduce the Company Aggregate Severance Amount by an amount commensurate with such employee’s unpaid severance benefits. Yuma complete and the Company shall agree on the correct list of all such Continuing Employees two consultants and independent contractors of each of the Company and Acquired Subsidiaries, showing for each the following: (1) name; (2) Business Days prior responsibilities; (3) date of engagement; (4) compensation paid during 2013; and (5) the compensation reasonably expected to the Closing. Employment be due for 2014 pursuant to any agreement between such consultant or independent contractor and any of the employees of any DPAC Company who are not Continuing Employees shall be terminated by the Company as of the Merger Effective Timeor Acquired Subsidiaries. (b) All Continuing Employees will be provided credit for their service To the Company’s Knowledge, no Key Employee intends to terminate employment with the DPAC Companies under Company or an Acquired Subsidiary or is otherwise likely to become unavailable to continue as a Key Employee, nor does the Company or any Yuma Employee Plan Acquired Subsidiary have a present intention to terminate the employment of any of the foregoing. Except as set forth on Schedule 4.13(b), the employment of each employee of the Company or other plan in which an Acquired Subsidiary is terminable at the Continuing Employee participates after will of the Merger Effective Time as credited to such employees under a similar Company Employee Planrespective entity. (c) Prior No employee of the Company or an Acquired Subsidiary is represented in his or her capacity as an employee of the Company or an Acquired Subsidiary by any labor organization and neither the Company nor any Acquired Subsidiary has recognized any labor organization, nor has any labor organization been elected as the collective bargaining agent of any such employee. Neither the Company nor any Acquired Subsidiary has experienced or been Threatened with any strike, slow down, work stoppage, material grievance, claim of unfair labor practices or other collective bargaining dispute within the past three (3) years. Neither the Company nor any Acquired Subsidiary has committed any material unfair labor practice. To the Company’s Knowledge, no organizational effort is presently being made or Threatened by or on behalf of any labor union with respect to employees of the Merger Effective TimeCompany or an Acquired Subsidiary. (d) The Company and each Acquired Subsidiary has complied in all material respects with all Applicable Laws and Regulations relating to employment and the environment of labor, including those related to wages, hours, collective bargaining, withholding, collection and payment of social security, termination of employment, unemployment compensation and similar payroll taxes, equal pay, workers’ compensation, occupational health and safety, immigration, payment of overtime and the classification of employees as overtime eligible and overtime exempt, fair labor standards, discrimination on the basis of race, age, sex, religion, color, national origin, disability and other protected classifications. (e) Schedule 4.13(e) sets forth a list of all the Company Employee Benefit Plans. All of the Company Employee Benefit Plans have been maintained and operated in material compliance with both their terms and with all Applicable Laws and Regulations. No non-exempt prohibited transaction for purposes of ERISA or the Code has occurred with respect to any of the Company Employee Benefit Plans. There are no Proceedings pending (other than routine claims for benefits) or Threatened against the Company, any of the Company Employee Benefit Plans, any fiduciary of any of the Company Employee Benefit Plans or the assets of any of the Company Employee Benefit Plans as to which the Company or an Acquired Subsidiary could have Liabilities. For each of the Company Employee Benefit Plans, the Company shall make severance payments has provided or made available to employees Acquiror complete, correct and officers current copies of the DPAC Companies in the aggregate amount of up to $4,713,830 (“Company Aggregate Severance Amount”) in accordance with either following: (i) the terms plan document, if written, or a written description of such plan, if not written; and (ii) to the extent applicable to such plan, (A) for the three (3) most recently completed plan years, the Form 5500 and all financial schedules thereto and all other annual reports required by any Regulatory Authority; (B) the most recent IRS determination or opinion letter or any pending request for an IRS determination or opinion letter; (C) the three (3) most recent reports regarding coverage and nondiscrimination testing; (D) all correspondence from any Regulatory Authority within the last three (3) years; and (E) all current summary plan descriptions and summaries of material modifications. (f) Each Company Qualified Plan and trust forming a part thereof has received a current, favorable determination or opinion letter from the IRS as to its qualification under the Code and to the effect that each such trust is exempt from federal income tax under the Code, and nothing has occurred since the date of the respective employment agreement for most recent favorable determination or opinion letter that could reasonably be expected to adversely affect such qualification or tax-exempt status. (g) Except as set forth on Schedule 4.13(g): (i) no Company Qualified Plan is subject to Title IV of ERISA; (ii) none of the executives listed Company, any Acquired Subsidiary or any ERISA Affiliate thereof (A) has participated in a “multiemployer plan” (as defined in Section 6.21(c3(37) of ERISA) or (B) has withdrawn, partially withdrawn, or received any notice of any claim or demand for withdrawal Liability or partial withdrawal Liability from such a multiemployer plan; (iii) none of the Company Disclosure Scheduleor any Acquired Subsidiary has any Liabilities to the IRS with respect to any Company Qualified Plan, if applicableincluding any Liabilities imposed by Chapter 43 of the Code; and (iv) none of the Company or any Acquired Subsidiary has any Liabilities to the PBGC or under Section 502 or 4071 of ERISA with respect to any Company Qualified Plan. (h) Except as set forth on Schedule 4.13(h), with respect to all of the Company Employee Benefit Plans, all contributions and fees that are due from the Company or an Acquired Subsidiary have been paid; and all unpaid contributions and fees for prior plan years, and the portion of the current plan year ending on the Closing Date, that are owed by the Company or an Acquired Subsidiary but not yet due have been accrued in full on the books of the applicable entity and reflected in the applicable financial statements to the extent required by and in accordance with GAAP. All contributions, fees and payments made or accrued with respect to the Company Employee Benefit Plans are deductible under Section 162 or 404 of the Code. (i) Except as set forth on Schedule 4.13(i), neither the execution nor delivery of this Agreement, nor the consummation of the Contemplated Transactions, will: (i) result in any payment (including any severance, bonus, unemployment compensation or “parachute payment” as defined in Section 280G of the Code) becoming due or owing to any former or current director, employee, consultant or independent contractor of the Company or an Acquired Subsidiary; (ii) increase any benefit otherwise payable or create any Liabilities to Acquiror or to the Company, any Acquired Subsidiary or ERISA Affiliate thereof under any of the Company Employee Benefit Plans; (iii) result in the acceleration of the time of payment or vesting of any such benefit; or (iv) constitute or involve a prohibited transaction under Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available. (j) Except as set forth on Schedule 4.13(j), all of the Company Employee Benefit Plans can be modified and terminated without either: (i) payment of any additional contributions or amounts by any person or entity pursuant to such plan or any Applicable Laws and Regulations; or (ii) the severance policies acceleration of the DPAC Companies and pursuant to the authorization any benefits. (k) None of the Company Boardor any Acquired Subsidiary has any obligation to provide health or other welfare benefits to retirees or other former employees, provideddirectors, that consultants or their dependents (other than rights under Section 4980B of the Code or Section 601 of ERISA). (l) To the Company’s Knowledge, none of the Key Employees has been: (i) subject to voluntary or involuntary petition under the federal bankruptcy laws or any state insolvency law or the appointment of a receiver, fiscal agent or similar officer by a court for his or her business or property; (ii) convicted in a criminal Proceeding or named as a subject of a pending criminal Proceeding (excluding traffic violations and other minor offenses); (iii) subject to any Order, judgment or decree (not subsequently reversed, suspended or vacated) of any court of competent jurisdiction permanently or temporarily enjoining him or her from engaging, or otherwise imposing limits or conditions on his or her engagement, in any securities, investment advisory, banking, insurance or other type of business or acting as an officer or director of a public company; or (iv) found by a court of competent jurisdiction in a civil action or by any Regulatory Authority to have violated any federal or state securities, commodities or unfair trade practices law, which such judgment or finding has not been subsequently reversed, suspended or vacated. (m) The aggregate cost of accrued vacation time for all employees of the Company Aggregate Severance Amount shall be subject to reduction in the amount of and each Continuing Employee’s unpaid severance benefits Acquired Subsidiary will have been properly recorded as a result of employment of the Continuing Employees by Yuma or its Subsidiaries (including the DPAC Companies) effective immediately after the Merger Effective Time; provided, further, that to the extent that the Closing does not occur in June 2016, such Company Aggregate Severance Amount shall be increased or decreased, as applicable, by an amount equal to approximately $7,600 per month, as pro-rated for any partial month, to the extent that the Closing occurs after June 2016 or prior to June 2016, respectively. In addition, prior to the Merger Effective Time, the Company Board may, in its discretion, issue to certain employees and officers of the DPAC Companies additional Company Restricted Shares in satisfaction of the cancellation of any such employee’s and officer’s Company Options pursuant to Section 3.02(a), which Company Restricted Shares shall be subject to vesting and limitations as provided in Section 3.02(b). Further, prior to the Merger Effective Time, the Company shall pay each employee (except for Continuing Employees) for vacation time which has been accrued but not yet taken, and for any reasonable unreimbursed employee expensesCalculation Date, in accordance with GAAP, on the Company's normal business practices. (d) Prior to the Merger Effective Time, (i) respective books and records of the Company shall pay or award performance bonuses, whether in the form of cash, Company Common Stock or Company Restricted Shares, to officers and employees of the DPAC Companies with respect to their 2015 fiscal year in accordance with the Company’s compensation policies, provided that no such bonus shall exceed 100% of the target bonus for any such officer or employee and the aggregate amount of such performance bonuses shall not exceed $1,353,993; and (ii) the Company shall pay or award performance bonuses, whether in the form of cash, Company Common Stock or Company Restricted Shares, to officers and employees of the DPAC Companies with respect to the period from January 1, 2016 through the Merger Effective Time in accordance the Company’s compensation policies; provided that the 2016 target bonus shall be the same as the 2015 target bonus and the amount paid with respect to each such bonus shall be pro-rated for such period and shall not exceed an amount equal to 100% of the target bonus for such officer or employee after giving effect to such pro-rationAcquired Subsidiary. (e) With respect to each Continuing Employee, Yuma shall continue the Company Employee Plan that is a group health plan within the meaning of COBRA and that is in effect immediately prior to the Merger Effective Time (the “Company Group Health Plan”) or, if such continuance is not available for continuance, a Yuma Employee Plan that is in the aggregate substantially the same as the Company Group Health Plan, from the Merger Effective Time through December 31, 2016, and thereafter, will provide coverage under the group health plan of Yuma as in effect from time to time. With respect to any employee of a DPAC Company who is not a Continuing Employee, Yuma shall provide continuation of group health coverage in accordance with COBRA under the Company Group Health Plan or, if such continuance is not available for continuance, a Yuma Employee Plan that is in the aggregate substantially the same as the Company Group Health Plan, from the Merger Effective Time through December 31, 2016, and thereafter, will provide continuation of group health coverage in accordance with COBRA under the group health plan of Yuma as in effect from time to time. In addition, for the period from the Merger Effective Time until December 31, 2016, Yuma will pay the same share of the aggregate group health insurance cost for such group health plan that the DPAC Companies paid for the policy period immediately prior to the Merger Effective Time, including for any employee of the DPAC Companies who is not a Continuing Employee and who elects COBRA continuation. (f) Prior to the Merger Effective Time, the Company Employee Plan that is qualified as a 401(k) plan (the “Company 401(k) Plan”) shall be terminated by the Company, and it is intended that all distributions from the Company 401(k) Plan will be made within ninety (90) days following the Merger Effective Time. (g) The provisions in this Section 6.21 are intended for the sole benefit of the parties hereto, and shall not inure to the benefit of any other entity or Person (other than permitted assigns of the parties hereto) either as a third party beneficiary or otherwise.

Company Employee Matters. (a) As soon as practicable following FNH and the date hereof, Yuma Company shall meet with employees take all steps necessary to cause the employment of the DPAC Companies Business Employees to be transferred to the Company or one of its Subsidiaries effective immediately prior to the Closing, without any action required by any such Business Employee. To the extent an offer of employment is required to be made to a Business Employee (each, an “Offered Employee”) under applicable Law or as a result of any Business Employee having an existing employment agreement with FNH or any of its Subsidiaries (other than the Company or its Subsidiaries) pursuant to the immediately preceding sentence for the transfer of employment of such Business Employee to be effective upon the Closing, not less than five (5) days prior to the Closing, the Company shall make an offer of employment to each such Business Employee or cause the Company or its Subsidiaries to assume the employment agreements set forth on Section 6.6(a) of the Company Disclosure Schedule for such transfer of employment to be effective immediately prior to the Closing (each (i) Offered Employee (A) who have expressed an interest in continuing accepts the Company’s offer of employment and commences employment with the Yuma Companies Company or another Subsidiary of the DPAC Companies after Company immediately prior to the Merger Effective Time, Closing or (B) whose employment agreement is set forth on Section 6.6(a) of the Company Disclosure Schedule and is assumed by the Company or another Subsidiary of the Company effective immediately prior to the Closing and (ii) who Yuma has an interest in continuing the employment, and in each such case, Yuma shall negotiate in good faith with such person to determine terms of his or her continuing employment, including compensation and benefits on terms substantially comparable, in the aggregate, other Business Employee whose employment is transferred to the terms of employment of such Persons with the DPAC Companies or, if greater, to similarly situated employees of the Yuma Companies. If Yuma continues the employment of any such employee or any such employee accepts an offer to become an employee of the Yuma Companies effective Company immediately following the Merger Effective Time, (each such employee a “Continuing Employee”), the Company shall reduce the Company Aggregate Severance Amount by an amount commensurate with such employee’s unpaid severance benefits. Yuma and the Company shall agree on the list of all such Continuing Employees two (2) Business Days prior to the Closing. Employment of the employees of any DPAC Company who are not Continuing Employees shall be terminated by the Company as of the Merger Effective Time, a “Transferred Employee”). (b) All Continuing Employees will be provided credit for their service with the DPAC Companies under any Yuma Employee Plan or other plan Subject and in which the Continuing Employee participates after the Merger Effective Time as credited to such employees under a similar Company Employee Plan. (c) Prior addition to the Merger Effective Timerequirements of any applicable Law relating to employees’ acquired rights, the Company’s offer of employment to each Offered Employee shall be for, and the Company shall make severance payments cause its Subsidiaries to employees and officers provide to each of the DPAC Companies in Transferred Employees immediately prior to the aggregate amount of up to $4,713,830 (“Company Aggregate Severance Amount”) in accordance with either Closing, the same (i) position, title, duties and other terms and conditions of employment in effect for such Transferred Employee immediately prior to their transfer to the terms of Company or its Subsidiaries and (ii) base salary or base wage rate in effect for such Transferred Employee immediately prior to their transfer to the respective employment agreement for Company or its Subsidiaries. Notwithstanding the executives listed in foregoing, except as set forth on Section 6.21(c6.6(b) of the Company Disclosure Schedule, if applicable, or (ii) the severance policies of the DPAC Companies and pursuant to the authorization all Transferred Employees shall be employees “at-will” of the Company Board, provided, that the Company Aggregate Severance Amount shall be subject to reduction in the amount of each Continuing Employee’s unpaid severance benefits as a result of employment of the Continuing Employees by Yuma or its Subsidiaries (including the DPAC Companies) effective immediately after the Merger Effective Time; provided, further, that to the extent that the Closing does not occur in June 2016, such Company Aggregate Severance Amount shall be increased or decreasedSubsidiaries, as applicable, and none of the Company, nor any of its Subsidiaries, shall enter into any employment related agreement between the date hereof and the Closing that will be binding on the Company or Parent, or any of their respective Subsidiaries, following the Closing, without Purchaser’s express written consent. (c) FNH shall, at its own expense, give all notices and other information required to be given by an amount equal to approximately $7,600 per month, as pro-rated for any partial month, FNH to the extent that Transferred Employees and any applicable Governmental Entity and comply with any obligation to consult with or provide benefits to any Business Employees under the Closing occurs after June 2016 or prior to June 2016, respectively. In addition, prior to the Merger Effective TimeWARN Act, the Company Board mayNational Labor Relations Act, the Code, COBRA and other applicable Laws in its discretion, issue to certain employees and officers connection with the execution of this Agreement or any other Transaction Agreement or the consummation of the DPAC Companies additional Company Restricted Shares in satisfaction of the cancellation of employment transfers and their impact on any such employee’s and officer’s Company Options pursuant to Section 3.02(a), which Company Restricted Shares shall be subject to vesting and limitations as provided in Section 3.02(b). Further, prior to the Merger Effective Time, the Company shall pay each employee (except for Continuing Employees) for vacation time which has been accrued but not yet taken, and for any reasonable unreimbursed employee expenses, in accordance with the Company's normal business practicesBusiness Employee. (d) Prior to the Merger Effective TimeNothing in this Section 6.6, express or implied, shall: (i) confer upon any Business Employee, any right to continue in the employ or service of Purchaser, FNH, the Company or any Affiliate thereof, or any right to any particular term or condition of employment or service, or shall pay interfere with or award performance bonusesrestrict in any way the rights of Purchaser, whether in the form of cash, Company Common Stock or Company Restricted Shares, to officers and employees of the DPAC Companies with respect to their 2015 fiscal year in accordance with the Company’s compensation policies, provided that no such bonus shall exceed 100% FNH or any Affiliate thereof to discharge or terminate the services of the target bonus any Business Employee, at any time for any such officer or employee and the aggregate amount of such performance bonuses shall not exceed $1,353,993no reason whatsoever, with or without cause; and (ii) the be deemed to (1) establish, amend, modify or terminate any Company shall pay Benefit Plan or award performance bonusesemployee benefit plan maintained by Purchaser, whether in the form of cash, Company Common Stock or Company Restricted Shares, to officers and employees of the DPAC Companies with respect to the period from January 1, 2016 through the Merger Effective Time in accordance the Company’s , FNH or any Affiliate thereof or any other benefit or compensation policies; provided that plan, program, agreement, policy, contract or arrangement, or (2) alter or limit the 2016 target bonus shall be the same as the 2015 target bonus and the amount paid with respect to each such bonus shall be pro-rated for such period and shall not exceed an amount equal to 100% ability of the target bonus for such officer or employee after giving effect to such pro-ration. (e) With respect to each Continuing EmployeePurchaser, Yuma shall continue the Company Employee Plan that is a group health plan within the meaning of COBRA and that is in effect immediately prior to the Merger Effective Time (the “Company Group Health Plan”) or, if such continuance is not available for continuance, a Yuma Employee Plan that is in the aggregate substantially the same as the Company Group Health Plan, from the Merger Effective Time through December 31, 2016, and thereafter, will provide coverage under the group health plan of Yuma as in effect from time to time. With respect to any employee of a DPAC Company who is not a Continuing Employee, Yuma shall provide continuation of group health coverage in accordance with COBRA under the Company Group Health Plan or, if such continuance is not available for continuance, a Yuma Employee Plan that is in the aggregate substantially the same as the Company Group Health Plan, from the Merger Effective Time through December 31, 2016, and thereafter, will provide continuation of group health coverage in accordance with COBRA under the group health plan of Yuma as in effect from time to time. In addition, for the period from the Merger Effective Time until December 31, 2016, Yuma will pay the same share of the aggregate group health insurance cost for such group health plan that the DPAC Companies paid for the policy period immediately prior to the Merger Effective Time, including for any employee of the DPAC Companies who is not a Continuing Employee and who elects COBRA continuation. (f) Prior to the Merger Effective TimeFNH, the Company Employee or any Affiliate thereof, or following the Closing, the Purchaser, Company or any of their Affiliates, to amend, modify, or terminate any particular Company Benefit Plan that is qualified as a 401(kor employee benefit plan maintained by Purchaser, the Company or any Affiliate thereof or any other benefit or compensation plan, program, agreement, policy, contract or arrangement after the Closing; or (iii) plan (be intended to or confer upon any person, including any current or former employee, officer, director, consultant or service provider of the “Company 401(k) Plan”) shall be terminated by Purchaser, the Company, and it is intended that all distributions from the Company 401(kFNH or any Affiliate thereof (or any of their beneficiaries) Plan will be made within ninety (90) days following the Merger Effective Time. (g) The provisions in any right, benefit or remedy of any nature whatsoever, including any third-party beneficiary rights, under or by reason of this Section 6.21 are intended for the sole benefit of the parties hereto, and shall not inure to the benefit of any other entity or Person (other than permitted assigns of the parties hereto) either as a third party beneficiary or otherwise6.6.

Company Employee Matters. (a) As soon as practicable following Buyer shall take all actions necessary or appropriate to permit the date hereof, Yuma shall meet with employees of the DPAC Companies Company and the Transferred Subsidiaries (the "Company Employees") to continue to participate from and after the Closing Date in the Transferred Subsidiary Plans and all other employee benefit plans, agreements, arrangements, programs, or policies maintained by the Company or the Transferred Subsidiaries immediately prior to the Closing Date (collectively, the "Current Company Benefit Plans"), including, without limitation, each personnel policy, bonus plan or arrangement, incentive award plan or arrangement, vacation policy, severance pay plan or agreement, change of control plan or agreement, retention bonus plan or agreement, deferred compensation agreement or arrangement, and employment agreement. Notwithstanding the foregoing, Buyer may permit or cause any such Current Company Benefit Plan to be terminated or discontinued on or after the Closing Date (except as otherwise specifically prohibited by any Current Company Benefit Plan), provided that Buyer shall take all actions necessary or appropriate to permit the Company Employees participating in such Current Company Benefit Plan to immediately thereafter participate in the comparable Buyer Plan maintained by Buyer or any of its Affiliates for their similarly situated employees, including severance pay plans or policies, and that such Buyer Plans shall, at least until the first anniversary of the Closing Date, provide benefits that are substantially comparable in the aggregate to the benefits provided the Company Employees under such Current Company Benefit Plans. If the Current Company Benefit Plan that is terminated or discontinued by Buyer is a group health plan, then Buyer shall permit each Company Employee participating in such group health plan to be covered under a Buyer Plan that (i) who have expressed an interest in continuing employment provides medical and dental benefits to each such Company Employee effective immediately upon the cessation of coverage of such individuals under such group health plan, (ii) credits such Company Employee, for the year during which such coverage under such Buyer Plan begins, with the Yuma Companies or the DPAC Companies after the Merger Effective Timeany deductibles, copayments, and maximum out-of-pocket amounts already incurred during such year under such group health plan, and (iiiii) who Yuma has an interest in continuing the employment, and in each such case, Yuma shall negotiate in good faith with such person to determine terms of his or her continuing employment, including compensation and benefits on terms substantially comparable, in the aggregate, waives any preexisting condition restrictions to the extent necessary to provide immediate coverage. Buyer and the Buyer Plans shall recognize each Company Employee's years of service and level of seniority with the Company and the Transferred Subsidiaries for purposes of terms of employment of such Persons with and eligibility, vesting and benefit determination under the DPAC Companies or, if greater, to similarly situated employees of the Yuma Companies. If Yuma continues the employment of any such employee or any such employee accepts an offer to become an employee of the Yuma Companies effective immediately following the Merger Effective Time, (each such employee a “Continuing Employee”), the Company shall reduce the Company Aggregate Severance Amount by an amount commensurate with such employee’s unpaid severance benefits. Yuma and the Company shall agree on the list of all such Continuing Employees two (2) Business Days prior to the Closing. Employment of the employees of any DPAC Company who are not Continuing Employees shall be terminated by the Company as of the Merger Effective TimeBuyer Plans. (b) All Continuing Employees will Provided that Buyer shall not be provided credit for their service obligated with respect to any action taken by the DPAC Companies under Company or any Yuma Employee Plan or other plan of the Transferred Subsidiaries with respect to the Transferred Subsidiary Plans in which violation of the Continuing Employee participates provisions of Section 6.1, Buyer hereby agrees to cause the Company and each Transferred Subsidiary from and after the Merger Effective Time Closing Date to honor and perform all obligations of the Company under all Current Company Benefit Plans or as credited to such employees under a similar Company Employee Planotherwise contemplated by this Agreement. (c) Prior to the Merger Effective Time, the Company shall make severance payments to employees and officers of the DPAC Companies in the aggregate amount of up to $4,713,830 (“Company Aggregate Severance Amount”) in accordance with either (i) the terms of the respective employment agreement for the executives listed in Section 6.21(c7.2(c) of the Disclosure Schedule lists, for each Company Disclosure ScheduleEmployee, if applicable, or (ii) the severance policies accrued vacation for such Company Employee as of the DPAC Companies and pursuant to the authorization of the Company Board, provided, that the Company Aggregate Severance Amount shall be subject to reduction in the amount of each Continuing Employee’s unpaid severance benefits as a result of employment of the Continuing Employees by Yuma or its Subsidiaries (including the DPAC Companies) effective immediately after the Merger Effective Time; provided, further, that to the extent that the Closing does not occur in June 2016, such Company Aggregate Severance Amount shall be increased or decreased, as applicable, by an amount equal to approximately $7,600 per month, as pro-rated for any partial month, to the extent that the Closing occurs after June 2016 or prior to June 2016, respectively. In addition, prior to the Merger Effective Time, the Company Board may, in its discretion, issue to certain employees and officers of the DPAC Companies additional Company Restricted Shares in satisfaction of the cancellation of any such employee’s and officer’s Company Options pursuant to Section 3.02(a), which Company Restricted Shares shall be subject to vesting and limitations as provided in Section 3.02(b). Further, prior to the Merger Effective Time, the Company shall pay each employee (except for Continuing Employees) for vacation time which has been accrued but not yet taken, and for any reasonable unreimbursed employee expenses, in accordance with the Company's normal business practicesExecution Date. (d) Prior Buyer's indemnification of Seller Indemnitees pursuant to the Merger Effective Time, Section 10.4(b) shall include indemnification of Seller Indemnitees from and against any Losses arising out of or related to Claims (i) for severance payments or other benefits made by Company Employees whose employment is terminated after Buyer's purchase of the Shares of the Company shall pay or award performance bonuses, whether in the form of cash, Company Common Stock or Company Restricted Shares, to officers and employees of the DPAC Companies with respect to their 2015 fiscal year in accordance with the Company’s compensation policies, provided that no such bonus shall exceed 100% of the target bonus for any such officer or employee and the aggregate amount of such performance bonuses shall not exceed $1,353,993; and (ii) arising from any changes made to the compensation and employee benefits of the Company shall pay or award performance bonuses, whether in the form of cash, Company Common Stock or Company Restricted Shares, to officers and employees Employees after Buyer's purchase of the DPAC Companies with respect to the period from January 1, 2016 through the Merger Effective Time in accordance Shares of the Company’s compensation policies; provided that the 2016 target bonus shall be the same as the 2015 target bonus and the amount paid with respect to each such bonus shall be pro-rated for such period and shall not exceed an amount equal to 100% of the target bonus for such officer or employee after giving effect to such pro-ration. (e) With respect to each Continuing Employee, Yuma shall continue the Company Employee Plan that is a group health plan within the meaning of COBRA and that is in effect immediately prior to the Merger Effective Time (the “Company Group Health Plan”) or, if such continuance is not available for continuance, a Yuma Employee Plan that is in the aggregate substantially the same as the Company Group Health Plan, from the Merger Effective Time through December 31, 2016, and thereafter, will provide coverage under the group health plan of Yuma as in effect from time to time. With respect to any employee of a DPAC Company who is not a Continuing Employee, Yuma shall provide continuation of group health coverage in accordance with COBRA under the Company Group Health Plan or, if such continuance is not available for continuance, a Yuma Employee Plan that is in the aggregate substantially the same as the Company Group Health Plan, from the Merger Effective Time through December 31, 2016, and thereafter, will provide continuation of group health coverage in accordance with COBRA under the group health plan of Yuma as in effect from time to time. In addition, for the period from the Merger Effective Time until December 31, 2016, Yuma will pay the same share of the aggregate group health insurance cost for such group health plan that the DPAC Companies paid for the policy period immediately prior to the Merger Effective Time, including for any employee of the DPAC Companies who is not a Continuing Employee and who elects COBRA continuation. (f) Prior to the Merger Effective Time, the Company Employee Plan that is qualified as a 401(k) plan (the “Company 401(k) Plan”) shall be terminated by the Company, and it is intended that all distributions from the Company 401(k) Plan will be made within ninety (90) days following the Merger Effective Time. (g) The provisions in this Section 6.21 are intended for the sole benefit of the parties hereto, and shall not inure to the benefit of any other entity or Person (other than permitted assigns of the parties hereto) either as a third party beneficiary or otherwise.

Company Employee Matters. (a) As soon Company has set forth in Section 5.9(a) of the Company Disclosure Letter, on an individual basis, the maximum amount of Company Employee Obligations and Company Termination Payments that are or may become payable with respect to each employee of Company or Subsidiary and has included true and correct information regarding the title and start date with Company or Subsidiary (or recognized service date for severance purposes if different from start date) and remuneration of each employee of Company or Subsidiary. (b) Vitesse may, on or before that date that is ten (10) Business Days prior to the Effective Date, advise Company regarding employees of Company (and Subsidiary) listed in the Company Disclosure Letter that Vitesse has determined will not be continuing their employment with Company or Subsidiary, as practicable applicable, following the date hereof, Yuma shall meet with employees of Closing. (c) If Vitesse provides the DPAC Companies (i) who have expressed an interest in continuing employment with the Yuma Companies or the DPAC Companies after the Merger Effective Time, and (ii) who Yuma has an interest in continuing the employment, and in each such case, Yuma shall negotiate in good faith with such person to determine terms of his or her continuing employment, including compensation and benefits on terms substantially comparable, in the aggregate, to the terms of employment of such Persons with the DPAC Companies or, if greater, to similarly situated employees of the Yuma Companies. If Yuma continues the employment of any such employee or any such employee accepts an offer to become an employee of the Yuma Companies effective immediately following the Merger Effective Time, (each such employee a “Continuing Employee”notice contemplated by Section 5.9(b), the Company shall reduce the Company Aggregate Severance Amount by an amount commensurate with such employee’s unpaid severance benefits. Yuma and the Company shall agree on the list of all such Continuing Employees then at least two (2) Business Days prior to the Closing. Employment Effective Date, the employment or engagement of the employees each employee or consultant of any DPAC Company who are not Continuing Employees described in Section 5.9(b) shall be terminated by conditional upon the Company consummation of the Arrangement and effective as of the Merger Effective Time. (b) All Continuing Employees will . Any applicable Company Termination Payments, less all Withholding Obligations, shall be provided credit paid by Company at the Effective Time or as soon as practicable thereafter. Any officer, employee or consultant of Company who voluntarily resigns or is terminated for their service just cause or material breach prior to the Effective Time shall not be eligible for or entitled to, and shall not be paid, any Company Termination Payments or any other amount on account of notice of termination, termination pay or severance pay for any reason, except with the DPAC Companies under consent of Vitesse or as otherwise required by applicable agreements or Law. With the exception of any Yuma Employee Plan or other plan in which the Continuing Employee participates after the Merger Effective Time as credited to such employees under a similar Company Employee Plan. (c) Prior to the Merger Effective Timestatutory termination pay, the payment of any Company shall make severance payments to employees and officers of the DPAC Companies in the aggregate amount of up to $4,713,830 (“Company Aggregate Severance Amount”) Termination Payments in accordance with either (i) the terms of the respective employment agreement for the executives listed in this Section 6.21(c) of the Company Disclosure Schedule, if applicable, or (ii) the severance policies of the DPAC Companies and pursuant to the authorization of the Company Board, provided, that the Company Aggregate Severance Amount shall be subject to reduction in the amount of each Continuing Employee’s unpaid severance benefits as a result of employment of the Continuing Employees by Yuma or its Subsidiaries (including the DPAC Companies) effective immediately after the Merger Effective Time; provided, further, that to the extent that the Closing does not occur in June 2016, such Company Aggregate Severance Amount shall be increased or decreased, as applicable, by an amount equal to approximately $7,600 per month, as pro-rated for any partial month5.9 shall, to the extent consistent with applicable agreements, be conditional on the execution of a full and final release in favor of Company and Vitesse, in forms that the Closing occurs after June 2016 or prior are satisfactory to June 2016Vitesse, respectivelyacting reasonably. In addition, prior to the Merger Effective TimeFor greater certainty, the Parties acknowledge that Company Board may, in its discretion, issue to certain employees and officers of the DPAC Companies additional Company Restricted Shares in satisfaction of the cancellation of any such employee’s and officer’s Company Options pursuant to Section 3.02(a), which Company Restricted Shares (or applicable Subsidiary) shall be subject to vesting and limitations as provided exclusively responsible for all Withholding Obligations from any amounts paid in Section 3.02(b). Further, prior to the Merger Effective Time, the connection with Company shall pay each employee (except for Continuing Employees) for vacation time which has been accrued but not yet taken, and for any reasonable unreimbursed employee expenses, in accordance with the Company's normal business practicesTermination Payments. (d) Prior to Vitesse shall be responsible for complying with the Merger Effective Time, (i) the Company shall pay or award performance bonuses, whether in the form of cash, Company Common Stock or Company Restricted Shares, to officers and employees continuation coverage requirements under Section 4980B of the DPAC Companies with respect Code for all M&A Qualified Beneficiaries (within the meaning assigned to their 2015 fiscal year in accordance with the Company’s compensation policies, provided that no such bonus shall exceed 100% term under Q&A-4 of the target bonus for any such officer or employee and the aggregate amount of such performance bonuses shall not exceed $1,353,993; and (iiTreasury Regulation Section 54.4980B-9) the Company shall pay or award performance bonuses, whether in the form of cash, Company Common Stock or Company Restricted Shares, to officers and employees of the DPAC Companies with respect to the Transactions for the duration of the period from January 1, 2016 through the Merger Effective Time in accordance the Company’s compensation policies; provided that the 2016 target bonus shall be the same as the 2015 target bonus and the amount paid with respect to each which such bonus shall be pro-rated for individuals are entitled to such period and coverage. For the avoidance of doubt, Vitesse shall not exceed an amount equal to 100% be responsible for complying with the continuation coverage requirements under Section 4980B of the target bonus Code for any individual who experienced a qualifying termination prior to the Transaction other than pursuant to Section 5.9(c), and any COBRA continuation coverage for any such officer individuals shall continue to be provided by the benefit plan in which such individual participated at the time of such qualifying termination. Following the Effective Date, Vitesse covenants and agrees that, during the period commencing on the Effective Date and ending on the date which is the one (1) year anniversary of the Effective Date (or if earlier, the date of the applicable employee’s termination of employment with Vitesse and any Subsidiary or Affiliate of Vitesse), Vitesse shall or shall cause the applicable Subsidiary or Affiliate of Vitesse to provide each employee after giving effect of the Company or any of its Subsidiaries who are an active employees of the Company or any of its Subsidiaries both immediately prior to and following the Closing Date (each a "Continuing Employee") with base compensation (e.g., salary or wages), annual cash incentive compensation opportunities and benefits (other than equity compensation opportunities and severance) that are comparable, in the aggregate, to those provided to such pro-rationContinuing Employee immediately prior to the Effective Date. (e) With Without limiting the final sentence of Section 5.9(d), following the Effective Time, Vitesse shall, or shall cause the Company and its Subsidiaries, to use commercially reasonable efforts to credit each Continuing Employee under each Vitesse Benefit Plan in which Continuing Employees may be eligible to participate after the Closing Date (the "Post-Closing Plans"), credit for purposes of vesting, eligibility and entitlement benefits accrual (other than for any purposes with respect to each any defined benefit pension benefits, severance benefits, retiree medical benefits or disability benefits, or nonqualified deferred compensation plans) for such Continuing Employee, Yuma shall continue Employees' full or partial years of service with Company or any of its Affiliates (including any predecessors) performed at any time prior to the Closing Date to the extent such service was taken into account under the analogous Company Employee Benefit Plan that is a group health plan within the meaning of COBRA and that is in effect immediately prior to the Merger Effective Time (Closing Date; provided, however, that no such prior service shall be taken into account to the “Company Group Health Plan”) or, if such continuance is not available for continuance, a Yuma Employee Plan that is extent it would result in the aggregate substantially the same as the Company Group Health Plan, from the Merger Effective Time through December 31, 2016, and thereafter, will provide coverage under the group health plan duplication of Yuma as in effect from time to time. With respect benefits to any employee of a DPAC Company who is not a Continuing Employee, Yuma shall provide continuation of group health coverage in accordance with COBRA under the Company Group Health Plan or, if such continuance is not available for continuance, a Yuma Employee Plan that is in the aggregate substantially the same as the Company Group Health Plan, from the Merger Effective Time through December 31, 2016, and thereafter, will provide continuation of group health coverage in accordance with COBRA under the group health plan of Yuma as in effect from time to time. In addition, for the period from the Merger Effective Time until December 31, 2016, Yuma will pay the same share of the aggregate group health insurance cost for such group health plan that the DPAC Companies paid for the policy period immediately prior to the Merger Effective Time, including for any employee of the DPAC Companies who is not a Continuing Employee and who elects COBRA continuation. (f) Vitesse shall, or shall cause the Company and its Subsidiaries, to use commercially reasonable efforts to (i) waive any limitation on health coverage of any Continuing Employees or any of their covered, eligible dependents due to pre-existing conditions and/or waiting periods, active employment requirements and requirements to show evidence of good health under the applicable Post-Closing Plan to the extent such Continuing Employee or eligible dependents are covered under an analogous Company Benefit Plan immediately prior to the Closing Date, and such conditions, periods or requirements are satisfied or waived under such Company Benefit Plan and (ii) give each Continuing Employee credit for the plan year in which the Closing Date occurs towards applicable deductibles and annual out-of-pocket limits for medical expenses incurred prior to the Closing Date for which payment has been made, in each case, to the extent such deductibles or limits for medical expenses were satisfied or did not apply under the analogous Company Benefit Plan in effect immediately prior to the Closing Date. (g) Prior to the Merger Effective TimeClosing Date, if requested by Vitesse in writing at least three (3) Business Days before the Closing, Company shall use its commercially reasonable best efforts to cause Company and its Subsidiaries to take all necessary and appropriate actions to cause (i) the Company Employee and its Subsidiaries to terminate participation in each Company Benefit Plan that is intended to be qualified as a 401(kunder Section 401(a) plan of the Code (the “"Company 401(k) Plan”") or any other Company Benefit Plan, in each case, effective no later than the Business Day preceding the Closing Date; provided, however, that such actions may be contingent upon Closing. Company shall provide Vitesse with an advance copy of all documentation necessary to effect this Section 5.9(g) and a reasonable opportunity to comment thereon prior to the adoption or execution thereof. In the event that the Company and its Subsidiaries terminate participation in the Company 401(k) Plan as set forth in the preceding sentence, as soon as administratively practicable following the Effective Time, Vitesse shall take any and all reasonable actions as may be terminated reasonably required, including amendments to a defined contribution retirement plan intended to be qualified under Section 401(a) of the Code designated by Vitesse (the Company, and it is intended that all distributions "Vitesse 401(k) Plan") to (A) cause the Vitesse 401(k) Plan to accept any "eligible rollover distributions" (within the meaning of Section 402(c)(4) of the Code) in the form of cash in an amount equal to the full account balance distributed or distributable to such employee from the Company 401(k) Plan will be made within ninety to the Vitesse 401(k) Plan, including any outstanding loans and (90B) days following cause each Continuing Employee to become a participant in the Merger Effective TimeVitesse 401(k) Plan as of the Closing Date (subject to any applicable eligibility requirements, but giving effect to the service crediting provisions of Section 5.9(e)). (gh) Nothing in this Agreement shall constitute an establishment or termination of, or an amendment to, or be construed as establishing, terminating or amending, any Vitesse Benefit Plan, Company Benefit Plan, Post-Closing Plan or other Employee Benefit Plan sponsored, maintained or contributed to by Company, Vitesse or any of their respective Subsidiaries. The provisions in of this Section 6.21 5.9 are intended for the sole benefit of the parties heretoParties and nothing herein, expressed or implied, is intended or will be construed to confer upon or give to any Person (including, for the avoidance of doubt, any current or former employee of Company, Vitesse or any of their respective Affiliates), other than the Parties and shall not inure their respective permitted successors and assigns, any third party beneficiary, legal or equitable or other rights or remedies (including with respect to the benefit matters provided for in this Section 5.9) under or by reason of any other entity provision of this Section 5.9. Nothing in this Section 5.9 is intended to (i) prevent Vitesse, Company or any of their Affiliates from terminating the employment or service of any Person, including a Continuing Employee, at any time and for any reason, subject to compliance with the terms hereof, (ii) provide any Person any right to employment or service or continued employment or service with Vitesse or any of its Subsidiaries (other than permitted assigns including following the Effective Time, the Company and following the consummation of the parties heretoArrangement) either as a third party beneficiary or otherwiseany particular term or condition of employment or service, or (iii) prevent Vitesse, Company or any of their Affiliates from terminating, revising or amending any Vitesse Benefit Plan, Company Benefit Plan, Post-Closing Plan or other Employee Benefit Plan sponsored, maintained or contributed to by Company, Vitesse or any of their respective Subsidiaries.