Common use of Comparability of Employee Benefits Clause in Contracts

Comparability of Employee Benefits. (a) For the one (1) year period following the date of the Closing, Buyer shall provide, or shall cause the relevant Subsidiary of Buyer to provide, all individuals who are employees of the Company or any of its Subsidiaries immediately prior to the Closing, and whose employment by Buyer or a Subsidiary of Buyer continues following the Closing (the “Assumed Employees”) with compensation and employee benefits (excluding equity or other incentive compensation) that are substantially comparable to those received by the Assumed Employees prior to the Closing. Following the Closing, each Assumed Employee shall receive service credit under the employee benefit plans of Buyer and its Subsidiaries, for purposes of eligibility to participate and vesting (but not for benefit accrual purposes) for their service with the Company and its Subsidiaries prior to the Closing. Each Assumed Employee shall also receive service credit for purposes of calculating the levels of benefits with respect to severance, vacation, personal days off and any other welfare-type benefits where service is a factor in calculating benefits. Buyer and the Company will also cause all (i) pre-existing conditions and proof of insurability provisions for all conditions that all Assumed Employees and their covered dependents have as of the Closing and (ii) waiting periods under each benefit plan that would otherwise be applicable to newly hired employees to be waived to the same extent waived or satisfied under the Plans. In addition, Buyer and the Company will honor or cause to be honored any deductible, co-payment and out-of-pocket maximums incurred by Assumed Employees and their covered dependents under the Plans during the portion of the applicable plan year prior to the date of the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under any plans of Buyer or the Company in which they are eligible to participate after the Closing for such plan year. Notwithstanding anything in this Section 7.07 to the contrary, none of the provisions contained in this Section 7.07 shall operate to duplicate any benefit provided to any Assumed Employee. (b) Buyer and the Company will give each Assumed Employee credit, for purposes of Buyer’s and the Company’s vacation and/or other paid leave benefit programs, for such Assumed Employee’s accrued and unpaid vacation and/or paid leave balance as of the Closing. (c) Notwithstanding anything herein to the contrary, the Assumed Employees shall be eligible to participate in Buyer’s severance plan to the same extent as similarly-situated employees of Buyer in the same jurisdiction as such Assumed Employees; provided, that this provision shall not apply to the extent that an Assumed Employee is entitled to severance payments or benefits pursuant to applicable Law. (d) Those executive officers and other employees of the Company eligible to receive bonus payments under the Company MBO Bonus Program shall receive, immediately prior to the Closing, (i) bonus payments for fiscal year 2010 in the amounts set forth on Schedule 7.07(d) and labeled “2010” to the extent such amounts have not previously been paid, and (ii) pro rata bonus payments for fiscal year 2011 in an amount equal to the amounts set forth on Schedule 7.07(d) and labeled “2011” multiplied by a fraction, the numerator of which is the number of days in 2011 preceding and including the date of the Closing and the denominator of which is 365. (e) Buyer and the Company acknowledge and agree that the consummation of the Offer shall constitute a “Change in Control” as defined in the executive change in control agreements and retention plan agreements (collectively, “Executive Agreements”) entered into between the Company and certain of its employees (all of the employees covered by any of the foregoing agreements, the “Covered Employees”) (all of such Executive Agreements and Covered Employees being listed in Schedule 7.07(e)), and that upon and following the consummation of the Offer, the Covered Employees shall have the rights and the Company shall have the obligations arising under such Executive Agreements upon a “Change in Control.” (f) Nothing in this Section 7.07, express or implied, is intended to confer upon any person not a party hereto any right, benefit or remedy of any nature whatsoever, including any right to employment or continued employment for any period of time by reason of this Agreement, or any right to a particular term or condition of employment. Notwithstanding anything to the contrary contained in this Agreement, no provision of this Agreement is intended to, or does, constitute the establishment of, or an amendment to, any Plan or any other employee benefit plan of the Company, Buyer or any of respective Subsidiaries or will limit the rights of Buyer, the Company or their respective Subsidiaries to amend, terminate, or otherwise modify any benefit plan of Buyer, the Company or their respective Subsidiaries following the Closing. (g) The Company will, and will cause its Subsidiaries to, comply with any required notifications to, and any required consultation with, the employees, employee representatives, works council, unions, labor boards and relevant labor Governmental Authorities in respect of the transactions contemplated hereby with respect to employees of the Company and its Subsidiaries.

Comparability of Employee Benefits. (a) For the one (1) year period following the date of the Closing, Buyer shall provideParent shall, or shall cause the relevant Subsidiary of Buyer Surviving Corporation to, maintain the Company’s existing Company Benefit Plans in place until the Assumed Employees are transitioned to provideParent’s employee benefit plans. Starting January 1, 2013, Parent shall, or shall cause the Surviving Corporation to, provide to all individuals who are employees of the Company or any of its Subsidiaries immediately prior to the Closing, and whose employment by Buyer or a Subsidiary of Buyer continues following the Closing (the “Assumed Employees”) with compensation and Employees employee benefits (excluding equity or other incentive compensation) that are substantially comparable similar to those received by provided to similarly situated employees of Parent. Notwithstanding the Assumed Employees prior foregoing, starting January 1, 2013, Parent shall use reasonable efforts to the Closing. Following the Closing, cause each Assumed Employee shall to receive service credit under the employee benefit plans of Buyer and its Subsidiariesfor their employment since March 23, 2007 for purposes of eligibility to participate and vesting (but not for benefit accrual purposes) for their service with the Company and its Subsidiaries prior respect to the Closingsuch employee benefit plans of Parent. Each Assumed Employee shall also receive service credit for their employment since March 23, 2007 for purposes of calculating the levels level of benefits with respect to severance, vacation, personal days off and any other welfare-type benefits where service is a factor in calculating benefits. Buyer Parent shall use reasonable efforts to cause any third-party insurers to provide Assumed Employees with full credit under Parent’s health and welfare plans applicable to each Assumed Employee and his or her dependents for all co-payments and deductibles satisfied prior to the Company will also cause Closing in the same plan year as the Closing, and for any lifetime maximums, as if there had been a single continuous employer. Subject to the approval of any insurance carrier or third party provider, Parent shall waive all limitations as to preexisting conditions exclusions (i) pre-existing conditions and proof or actively at work or similar limitations), evidence of insurability provisions for all conditions that all requirements and waiting periods with respect to participation and coverage requirements applicable to the Assumed Employees and their covered eligible dependents have as of the Closing under any health and (ii) waiting periods under each benefit welfare plan that would otherwise be applicable to newly hired such employees to be waived to the same extent waived or satisfied under the Plans. In addition, Buyer and the Company will honor or cause to be honored any deductible, co-payment and out-of-pocket maximums incurred by Assumed Employees and their covered dependents under the Plans during the portion of the applicable plan year prior to the date of the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under any plans of Buyer or the Company in which they are eligible to participate after the Closing for such plan year. Notwithstanding anything in this Section 7.07 to the contrary, none of the provisions contained in this Section 7.07 shall operate to duplicate any benefit provided to any Assumed Employee. (b) Buyer and the Company will give each Assumed Employee credit, for purposes of Buyer’s and the Company’s vacation and/or other paid leave benefit programs, for such Assumed Employee’s accrued and unpaid vacation and/or paid leave balance as of the Closing. (c) Notwithstanding anything herein to the contrary, the Assumed Employees shall may be eligible to participate in Buyer’s severance plan to after the same extent as similarly-situated employees of Buyer in the same jurisdiction as such Assumed Employees; providedClosing Date. This Section 4.12 is not intended, that this provision and shall not apply to the extent that an Assumed Employee is entitled to severance payments or benefits pursuant to applicable Law. (d) Those executive officers and other employees of the Company eligible to receive bonus payments under the Company MBO Bonus Program shall receivebe deemed, immediately prior to the Closing, (i) bonus payments for fiscal year 2010 in the amounts set forth on Schedule 7.07(d) and labeled “2010” to the extent such amounts have not previously been paid, and (ii) pro rata bonus payments for fiscal year 2011 in an amount equal to the amounts set forth on Schedule 7.07(d) and labeled “2011” multiplied by a fraction, the numerator of which is the number of days in 2011 preceding and including the date of the Closing and the denominator of which is 365. (e) Buyer and the Company acknowledge and agree that the consummation of the Offer shall constitute a “Change in Control” as defined in the executive change in control agreements and retention plan agreements (collectively, “Executive Agreements”) entered into between the Company and certain of its employees (all of the employees covered by any of the foregoing agreements, the “Covered Employees”) (all of such Executive Agreements and Covered Employees being listed in Schedule 7.07(e)), and that upon and following the consummation of the Offer, the Covered Employees shall have the rights and the Company shall have the obligations arising under such Executive Agreements upon a “Change in Control.” (f) Nothing in this Section 7.07, express or implied, is intended to confer any rights or remedies upon any person not a party Person other than the parties hereto any right, benefit or remedy of any nature whatsoever, including any right to employment or continued employment for any period of time by reason of this Agreement, or any right to a particular term or condition of employment. Notwithstanding anything to the contrary contained in this Agreement, no provision of this Agreement is intended to, or does, constitute the establishment of, or an amendment to, any Plan or any other employee benefit plan of the Company, Buyer or any of respective Subsidiaries or will limit the rights of Buyer, the Company or and their respective Subsidiaries successors and permitted assigns, to amend, terminate, or otherwise modify create any benefit plan agreement of Buyer, the Company or their respective Subsidiaries following the Closing. (g) The Company will, and will cause its Subsidiaries to, comply employment with any required notifications to, and Person or to otherwise create any required consultation with, the employees, employee representatives, works council, unions, labor boards and relevant labor Governmental Authorities in respect of the transactions contemplated hereby with respect to employees of the Company and its Subsidiariesthird-party beneficiary hereto.

Comparability of Employee Benefits. (a) For the one (1) year period following the date of the Closing, Buyer shall provide, or shall cause the relevant Subsidiary of Buyer to provide, all individuals who are employees of the Company or any of its Subsidiaries immediately prior to the Closing, and whose employment by Buyer or a Subsidiary of Buyer continues following the Closing (the “Assumed Employees”) with compensation and employee benefits (excluding equity or other incentive compensation) that are substantially comparable to those received by the Assumed Employees prior to the Closing. Following the Closing, each Assumed Employee shall receive service credit under the employee benefit plans of Buyer and its Subsidiaries, for purposes of eligibility to participate and vesting (but not for benefit accrual purposes) for their service with the Company and its Subsidiaries prior to the Closing. Each Assumed Employee shall also receive service credit for purposes of calculating the levels of benefits with respect to severance, vacation, personal days off and any other welfare-type benefits where service is a factor in calculating benefits. Buyer and the Company will also cause all (i) pre-existing conditions and proof of insurability provisions for all conditions that all Assumed Employees and their covered dependents have as of the Closing and (ii) waiting periods under each benefit plan that would otherwise be applicable to newly hired employees to be waived to the same extent waived or satisfied under the Plans. In addition, Buyer and the Company will honor or cause to be honored any deductible, co-payment and out-of-pocket maximums incurred by Assumed Employees and their covered dependents under the Plans during the portion of the applicable plan year prior to the date of the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under any plans of Buyer or the Company in which they are eligible to participate after the Closing for such plan year. Notwithstanding anything in this Section 7.07 to the contrary, none of the provisions contained in this Section 7.07 shall operate to duplicate any benefit provided to any Assumed Employee. (b) Buyer and the Company will give each Assumed Employee credit, for purposes of Buyer’s and the Company’s vacation and/or other paid leave benefit programs, for such Assumed Employee’s accrued and unpaid vacation and/or paid leave balance as of the Closing. (c) Notwithstanding anything herein to the contrary, the Assumed Employees shall be eligible to participate in Buyer’s severance plan to the same extent as similarly-situated employees of Buyer in the same jurisdiction as such Assumed Employees; provided, that this provision shall not apply to the extent that an Assumed Employee is entitled to severance payments or benefits pursuant to applicable Law. (d) Those executive officers and other employees of the Company eligible to receive bonus payments under the Company MBO Bonus Program shall receive, immediately prior to the Closing, (i) bonus payments for fiscal year 2010 in the amounts set forth on Schedule 7.07(d) and labeled “2010” to the extent such amounts have not previously been paid, and (ii) pro rata bonus payments for fiscal year 2011 in an amount equal to the amounts set forth on Schedule 7.07(d) and labeled “2011” multiplied by a fraction, the numerator of which is the number of days in 2011 preceding and including the date of the Closing and the denominator of which is 365. (e) Buyer and the Company acknowledge and agree that the consummation of the Offer shall constitute a “Change in Control” as defined in the executive change in control agreements and retention plan agreements (collectively, “Executive Agreements”) entered into between the Company and certain of its employees (all of the employees covered by any of the foregoing agreements, the “Covered Employees”) (all of such Executive Agreements and Covered Employees being listed in Schedule 7.07(e)), and that upon and following the consummation of the Offer, the Covered Employees shall have the rights and the Company shall have the obligations arising under such Executive Agreements upon a “Change in Control.” (f) Nothing in this Section 7.07, express or implied, is intended to confer upon any person not a party hereto any right, benefit or remedy of any nature whatsoever, including any right to employment or continued employment for any period of time by reason of this Agreement, or any right to a particular term or condition of employment. Notwithstanding anything to the contrary contained in this Agreement, no provision of this Agreement is intended to, or does, constitute the establishment of, or an amendment to, any Plan or any other employee benefit plan of the Company, Buyer or any of respective Subsidiaries or will limit the rights of Buyer, the Company or their respective Subsidiaries to amend, terminate, or otherwise modify any benefit plan of Buyer, the Company or their respective Subsidiaries following the Closing. (g) The Company will, and will cause its Subsidiaries to, comply with any required notifications to, and any required consultation with, the employees, employee representatives, works council, unions, labor boards and relevant labor Governmental Authorities in respect of the transactions contemplated hereby with respect to employees of the Company and its Subsidiaries. (h) The Company shall, at or prior to the Closing, award to employees bonuses under its Transaction Bonus Plan, subject to the terms and conditions of the Transaction Bonus Plan. One-third of each employee bonus award shall be paid to the applicable employee not later than five business days after the Closing, and two-thirds of each such employee bonus award shall be held in escrow at the Closing and released to the applicable employee not later than 60 calendar days following the Closing, in each case subject to the terms and conditions of the Transaction Bonus Plan and less any withholding required by applicable Law.

Comparability of Employee Benefits. (a) For the one (1) year a period of 12 months following the date of the ClosingClosing Date, Buyer shall provide, provide or shall cause Intermediate LLC, the relevant Subsidiary of Buyer Company and the Subsidiaries to provide, all individuals who are employees of the Company or any of its and the Subsidiaries immediately prior to the Closing, and whose employment by Buyer or a Subsidiary of Buyer continues following at the Closing Date (the “Assumed Employees”) ), while they remain employees of the Company, any Subsidiary or Buyer, with base compensation that is not less than that in effect immediately prior to the Closing Date and employee benefits (excluding equity or other incentive compensation) that are substantially comparable at least as favorable in the aggregate to those received by in effect immediately prior to the Closing Date (other than any equity compensation arrangements and special bonus arrangements, including transaction bonus arrangements) (it being understood and agreed that Buyer may move Assumed Employees to the employee benefit plans of Buyer or any of its Affiliates if doing so otherwise complies with Buyer’s obligations under this sentence). Buyer shall or shall cause Intermediate LLC, the Company and the Subsidiaries to recognize all accrued but unused vacation and sick pay of the Assumed Employees prior to as of the ClosingClosing Date. Following the ClosingClosing Date, each Assumed Employee shall receive full service credit under for all service with the employee benefit plans of Buyer Company and its Subsidiaries, Subsidiaries for purposes of eligibility to participate and vesting (but not for benefit accrual purposes) for their service employment, PTO (paid time off) and employee benefit plan purposes, if applicable. Buyer shall provide Assumed Employees with the Company full credit under Buyer’s health and its Subsidiaries welfare plans applicable to each Assumed Employee and his or her dependents for all co-payments and deductibles satisfied prior to the Closing in the same plan year as the Closing. Each Assumed Employee Buyer shall also receive service credit for purposes of calculating the levels of benefits with respect waive all limitations as to severance, vacation, personal days off and any other welfare-type benefits where service is a factor in calculating benefits. Buyer and the Company will also cause all (i) pre-existing conditions and proof exclusions (or actively at work or similar limitations), evidence of insurability provisions for all conditions that all requirements and waiting periods with respect to participation and coverage requirements applicable to the Assumed Employees and their covered eligible dependents have as of the Closing under any health and (ii) waiting periods under each benefit welfare plan that would otherwise such employees may be applicable to newly hired employees to be waived to the same extent waived or satisfied under the Plans. In addition, Buyer and the Company will honor or cause to be honored any deductible, co-payment and out-of-pocket maximums incurred by Assumed Employees and their covered dependents under the Plans during the portion of the applicable plan year prior to the date of the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under any plans of Buyer or the Company in which they are eligible to participate in after the Closing for such plan yearDate. Notwithstanding anything in this Section 7.07 any of the foregoing to the contrary, none of the provisions contained in this Section 7.07 herein shall operate to duplicate any benefit provided to any Assumed Employee. (b) . This Section 7.3 is for the benefit of Buyer and the Company will give each Assumed Employee credit, for purposes of Buyer’s Seller to this Agreement only and the Company’s vacation and/or other paid leave benefit programs, for such Assumed Employee’s accrued and unpaid vacation and/or paid leave balance as of the Closing. (c) Notwithstanding anything herein to the contrary, the Assumed Employees shall be eligible to participate in Buyer’s severance plan to the same extent as similarly-situated employees of Buyer in the same jurisdiction as such Assumed Employees; provided, that this provision shall not apply be construed to the extent that an Assumed Employee grant any rights, as a third party beneficiary or otherwise, to any Person who is entitled to severance payments or benefits pursuant to applicable Law. (d) Those executive officers and other employees of the Company eligible to receive bonus payments under the Company MBO Bonus Program shall receive, immediately prior to the Closing, (i) bonus payments for fiscal year 2010 in the amounts set forth on Schedule 7.07(d) and labeled “2010” to the extent such amounts have not previously been paid, and (ii) pro rata bonus payments for fiscal year 2011 in an amount equal to the amounts set forth on Schedule 7.07(d) and labeled “2011” multiplied by a fraction, the numerator of which is the number of days in 2011 preceding and including the date of the Closing and the denominator of which is 365. (e) Buyer and the Company acknowledge and agree that the consummation of the Offer shall constitute a “Change in Control” as defined in the executive change in control agreements and retention plan agreements (collectively, “Executive Agreements”) entered into between the Company and certain of its employees (all of the employees covered by any of the foregoing agreements, the “Covered Employees”) (all of such Executive Agreements and Covered Employees being listed in Schedule 7.07(e)), and that upon and following the consummation of the Offer, the Covered Employees shall have the rights and the Company shall have the obligations arising under such Executive Agreements upon a “Change in Control.” (f) Nothing in this Section 7.07, express or implied, is intended to confer upon any person not a party hereto to this Agreement or to any rightAssumed Employee, benefit or remedy of nor shall any nature whatsoever, including any right to employment or continued employment for any period of time by reason of this Agreement, or any right to a particular term or condition of employment. Notwithstanding anything to the contrary contained in this Agreement, no provision of this Agreement is intended to, or does, constitute be deemed to be the establishment adoption of, or an amendment to, any Plan or any other employee benefit plan plan, as that term is defined in Section 3(3) of ERISA, or otherwise to limit the right of Intermediate LLC, the Company, the Subsidiaries or Buyer to amend, modify or terminate any such employee benefit plan. Notwithstanding any of respective Subsidiaries or will limit the rights of foregoing, nothing in this Section 7.3 shall require Buyer, Intermediate LLC, the Company or their respective Subsidiaries any Subsidiary to amend, terminate, or otherwise modify continue the employment of any benefit plan Assumed Employee for any period of Buyer, the Company or their respective Subsidiaries following time after the Closing. (g) The Company will, . This Section 7.3 does not override the required implementation and will cause its Subsidiaries to, comply with any required notifications to, and any required consultation with, the employees, employee representatives, works council, unions, labor boards and relevant labor Governmental Authorities in respect application of the transactions contemplated hereby with respect to employees of the Company Patient Protection and its SubsidiariesAffordable Care Act.

Comparability of Employee Benefits. (a) For Following the one (1) year period following Closing Date, through December 31, 2017, the date of the Closing, Buyer shall provide, provide or shall cause the relevant Subsidiary of Buyer Company and the Subsidiaries to provide, all individuals who are employees of the Company or any of its and the Subsidiaries immediately prior to the Closing, and whose employment by Buyer or a Subsidiary of Buyer continues following at the Closing Date (the “Assumed Employees”) ), while they remain employees of the Company, any Subsidiary or the Buyer, with base compensation and annual cash incentive opportunities that are not less than that in effect immediately prior to the Closing Date and employee benefits (excluding equity or other incentive compensation) that are substantially comparable at least as favorable in the aggregate to those received by in effect immediately prior to the Closing Date (other than any equity compensation arrangements and special bonus arrangements, including transaction bonus arrangements and non-qualified deferred compensation arrangements) (it being understood and agreed that the Buyer may move Assumed Employees to the employee benefit plans of the Buyer or any of its Affiliates if doing so otherwise complies with the Buyer’s obligations under this sentence). The Buyer shall or 45 ACTIVE 218042945 shall cause the Company and the Subsidiaries to recognize all accrued but unused vacation and sick pay of the Assumed Employees prior to as of the ClosingClosing Date. Following the ClosingClosing Date, each Assumed Employee shall receive full service credit under for all service with the employee benefit plans of Buyer Company and its Subsidiaries, Subsidiaries for purposes of eligibility to participate and vesting (but not for benefit accrual purposes, other than with respect to determining severance or paid time off entitlements) for their service employment, PTO (paid time off) and employee benefit plan purposes, if applicable. The Buyer shall use commercially reasonable efforts to provide Assumed Employees with full credit under the Company Buyer’s health and its Subsidiaries welfare plans applicable to each Assumed Employee and his or her dependents for all co-payments and deductibles satisfied prior to the Closing in the same plan year as the Closing. Each Assumed Employee The Buyer shall also receive service credit for purposes of calculating the levels of benefits with respect waive all limitations as to severance, vacation, personal days off and any other welfare-type benefits where service is a factor in calculating benefits. Buyer and the Company will also cause all (i) pre-existing conditions and proof exclusions (or actively at work or similar limitations), evidence of insurability provisions for all conditions that all requirements and waiting periods with respect to participation and coverage requirements applicable to the Assumed Employees and their covered eligible dependents have as of under any health and welfare plan that such employees may be eligible to participate in after the Closing and (ii) waiting periods under Date. With respect to each benefit plan that would otherwise be applicable to newly hired employees to be waived to Assumed Employee in the same extent waived or satisfied under United States whose employment is terminated by the Plans. In addition, Buyer and the Company will honor or cause to be honored any deductible, co-payment and out-of-pocket maximums incurred by Assumed Employees and their covered dependents under the Plans during the portion of the applicable plan year prior to the date of the Closing in satisfying any deductibles, co-payments or out-of-pocket maximums under any plans of Buyer or the Company in which they are eligible to participate or any of its Subsidiaries within the twelve month period after the Closing for Closing, the Buyer shall provide severance benefits to such plan yearPersons in accordance with the Seller’s existing severance policy as made available to the Buyer in the electronic data room established by the Seller. Notwithstanding anything in this Section 7.07 any of the foregoing to the contrary, none of the provisions contained in this Section 7.07 herein shall operate to duplicate any benefit provided to any Assumed Employee. (b) . This Section 7.3 is for the benefit of the Buyer and the Company will give each Assumed Employee credit, for purposes of Buyer’s Seller to this Agreement only and the Company’s vacation and/or other paid leave benefit programs, for such Assumed Employee’s accrued and unpaid vacation and/or paid leave balance as of the Closing. (c) Notwithstanding anything herein to the contrary, the Assumed Employees shall be eligible to participate in Buyer’s severance plan to the same extent as similarly-situated employees of Buyer in the same jurisdiction as such Assumed Employees; provided, that this provision shall not apply to the extent that an Assumed Employee is entitled to severance payments or benefits pursuant to applicable Law. (d) Those executive officers and other employees of the Company eligible to receive bonus payments under the Company MBO Bonus Program shall receive, immediately prior to the Closing, (i) bonus payments for fiscal year 2010 in the amounts set forth on Schedule 7.07(d) and labeled “2010” to the extent such amounts have not previously been paid, and (ii) pro rata bonus payments for fiscal year 2011 in an amount equal to the amounts set forth on Schedule 7.07(d) and labeled “2011” multiplied by a fraction, the numerator of which is the number of days in 2011 preceding and including the date of the Closing and the denominator of which is 365. (e) Buyer and the Company acknowledge and agree that the consummation of the Offer shall constitute a “Change in Control” as defined in the executive change in control agreements and retention plan agreements (collectively, “Executive Agreements”) entered into between the Company and certain of its employees (all of the employees covered by any of the foregoing agreements, the “Covered Employees”) (all of such Executive Agreements and Covered Employees being listed in Schedule 7.07(e)), and that upon and following the consummation of the Offer, the Covered Employees shall have the rights and the Company shall have the obligations arising under such Executive Agreements upon a “Change in Control.” (f) Nothing in this Section 7.07nothing herein, express or implied, is intended to confer upon or be construed to grant any person rights, as a third-party beneficiary or otherwise, to any Person who is not a party hereto to this Agreement or to any rightAssumed Employee, benefit or remedy of nor shall any nature whatsoever, including any right to employment or continued employment for any period of time by reason of this Agreement, or any right to a particular term or condition of employment. Notwithstanding anything to the contrary contained in this Agreement, no provision of this Agreement is intended to, or does, constitute be deemed to be the establishment adoption of, or an amendment to, any Plan or any other employee benefit plan plan, as that term is defined in Section 3(3) of ERISA, or otherwise to limit the right of the Company, the Subsidiaries or the Buyer to amend, modify or terminate any such employee benefit plan. Notwithstanding any of respective Subsidiaries or will limit the rights of foregoing, nothing in this Section 7.3 shall require the Buyer, the Company or their respective Subsidiaries any Subsidiary to amend, terminate, or otherwise modify continue the employment of any benefit plan Assumed Employee for any period of Buyer, the Company or their respective Subsidiaries following time after the Closing. (g) The Company will, . This Section 7.3 does not override the required implementation and will cause its Subsidiaries to, comply with any required notifications to, and any required consultation with, the employees, employee representatives, works council, unions, labor boards and relevant labor Governmental Authorities in respect application of the transactions contemplated hereby with respect to employees Patient Protection and Affordable Care Act or the applicability of any collective bargaining agreement governing the Company terms and its Subsidiariesconditions of employment of any Assumed Employee.