Common use of Employee Benefit Arrangements Clause in Contracts

Employee Benefit Arrangements. (a) For the one-year period immediately following the Effective Time, Parent and the Surviving Company shall provide each employee of the Company and the Company Subsidiaries who remain employed by Parent, the Surviving Company or the Subsidiaries of Parent after the Effective Time (each, a “Covered Employee”) compensation and employee benefits in the aggregate that are substantially similar to the compensation and employee benefits provided to such Covered Employee immediately before the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership provided by the Company and the Company Subsidiaries, as the case may be, to each such Covered Employee immediately prior to the Effective Time; provided, however, that nothing contained in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) shall be construed to prevent, from and after the Effective Time, the termination of employment of any Covered Employee or the amendment or termination of any particular Employee Program in accordance with its terms. Notwithstanding anything in this Agreement to the contrary, following the Effective Time, the employment of the Covered Employees who are covered by a collective bargaining agreement shall in all events be in accordance with the terms and conditions of such agreements. (b) All service credited to each Covered Employee under the Employee Programs by the Company through the Effective Time shall be recognized by Parent and the Surviving Company for all purposes, including for purposes of eligibility, vesting, benefit accruals (but excluding benefit accrual under any defined benefit pension plan) and level of benefits under any employee benefit plan provided by Parent and the Surviving Company. With respect to any welfare benefit plan established or maintained by Parent or the Surviving Company for the benefit of Covered Employees and their eligible dependants, Parent and the Surviving Company shall waive any pre-existing condition exclusions, eligibility waiting periods, and evidence of insurability requirements (to the same extent such limitations, waiting periods, or evidence of insurability requirements would not have applied under the relevant Employee Program) and provide that any covered expenses incurred on or before the Effective Time in respect of the current plan year by Covered Employees (or any covered dependent of such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time in respect of such current plan year. (c) Notwithstanding any provision of this Section 6.9 to the contrary, for the one year period following the Effective Time, Parent shall cause the Surviving Corporation and each Company Subsidiary to maintain in effect the severance plans applicable to Company Employees as set forth in Section 5.1(h) of the Company Disclosure Schedule without any amendment thereto that would be adverse to participants. (d) No provision of this Section 6.9 shall create any third-party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof) of the Company or any Company Subsidiary in respect of continued employment (or resumed employment) with Parent, the Surviving Company or the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Program or any plan or arrangement which may be established by Parent, the Surviving Company or any of the Subsidiaries of Parent.

Employee Benefit Arrangements. Parent shall cause the Company to honor all accrued obligations as of the date hereof under the employee arrangements (athe "Employee Arrangements") For to which the one-year period immediately following Company or any of its Subsidiaries is presently a party which are listed in the Effective Time, Parent Employee Arrangements Schedule and the Surviving Company shall provide each employee of the Company and the Company Subsidiaries who remain employed by Parent, the Surviving Company or the Subsidiaries of Parent after the Effective Time (each, a “Covered Employee”) compensation and employee benefits in the aggregate that are substantially similar to the compensation and employee benefits provided to such Covered Employee immediately before the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership provided by the Company and the Company Subsidiaries, as the case may be, to each such Covered Employee immediately prior to the Effective Time; provided, however, that nothing contained in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) shall be construed to prevent, from and after the Effective Time, the termination of employment of any Covered Employee or the amendment or termination of any particular Employee Program in accordance with its terms. Notwithstanding anything in this Agreement to the contrary, following the Effective Time, the employment of the Covered Employees who are covered by a collective bargaining agreement shall in all events be Developments Schedule in accordance with the terms and conditions of such arrangements. In addition, from and after the Closing until the first anniversary of the Closing, subject to the remaining provisions of this Section 6.06, the Surviving Corporation shall not amend, modify, alter or terminate any severance or change of control agreements. (b) All service credited , policies or practices of the Company or its Subsidiaries, including the SBS Plan; provided that any such action after the first anniversary of the Closing shall not adversely affect the accrued or vested rights of any employees or other beneficiaries which shall have arisen under any severance or change of control agreements, policies or practices of the Company or its Subsidiaries, including the SBS Plan prior to each Covered Employee under such amendment, modification, alteration or termination. Parent shall cause the Employee Programs Company for a period of one year following the Effective Time, to continue to provide to employees of the Company and its Subsidiaries who are employed by the Surviving Corporation (excluding employees covered by collective bargaining agreements) broad-based employee benefit plans and Employee Arrangements which are in the aggregate no less favorable than those provided to such employees as of the date hereof provided that it is understood that the Surviving Corporation may alter, amend, modify and/or terminate specific benefit plans and/or arrangements (including Employee Arrangements) subject to the aggregate limitations set forth above. Subject to the foregoing, nothing in this Section shall be deemed to limit or otherwise affect the right of the Surviving Corporation to terminate employment or change the place of work, responsibilities, status or designation of any employee or group of employees as the Surviving Corporation may determine in the exercise of its business judgment and in compliance with applicable laws. Solely for purposes of eligibility and vesting under Employee Arrangements (including without limitation plans or programs of Parent and its affiliates after the Effective Time), and to the extent permitted by law, all service with the Company through or any of its Subsidiaries or their predecessors prior to the Effective Time shall be recognized by treated as service with Parent and the Surviving Company for all purposes, including for purposes of eligibility, vesting, benefit accruals (but excluding benefit accrual under any defined benefit pension plan) and level of benefits under any employee benefit plan provided by Parent and the Surviving Company. With respect to any welfare benefit plan established or maintained by Parent or the Surviving Company for the benefit of Covered Employees and their eligible dependants, Parent and the Surviving Company shall waive any pre-existing condition exclusions, eligibility waiting periods, and evidence of insurability requirements its affiliates (to the same extent such limitations, waiting periods, or evidence of insurability requirements would not have applied under the relevant Employee Program) and provide that any covered expenses incurred on or before the Effective Time in respect of the current plan year service was recognized by Covered Employees (or any covered dependent of such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time in respect of such current plan year. (c) Notwithstanding any provision of this Section 6.9 to the contrary, for the one year period following the Effective Time, Parent shall cause the Surviving Corporation and each Company Subsidiary to maintain in effect the severance plans applicable to Company Employees as set forth in Section 5.1(h) of the Company Disclosure Schedule without any amendment thereto that would be adverse to participants. (d) No provision of this Section 6.9 shall create any third-party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof) of the Company or any Company Subsidiary in respect of continued employment (or resumed employment) with Parent, its Subsidiaries for similar purposes under comparable plans before the Surviving Company or the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Program or any plan or arrangement which may be established by Parent, the Surviving Company or any of the Subsidiaries of ParentEffective Time).

Employee Benefit Arrangements. (a) For On and after the one-year period immediately following Closing, Parent shall, and shall cause the Surviving Corporation to, honor in accordance with their terms all employment agreements, severance agreements, retention bonus agreements and performance cash bonus agreements, and all bonus, retention and severance obligations, of the Company or any Company Subsidiary, all of which are listed in Section 6.8(a) of the Company Disclosure Schedule, except as may otherwise be agreed to by the parties thereto, and the Company or Parent shall pay on the Closing Date to the applicable officers and employees listed in said Section 6.8(a) of the Company Disclosure Schedule, any amounts with respect to such agreements and obligations that are payable by their terms on the Closing Date, upon consummation of the Merger, or the Effective Time. In addition, and subject to compliance with applicable law, on and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, honor all promissory note and security agreements listed in Section 6.8(a) of the Company Disclosure Schedule, except as may otherwise be agreed to by the parties thereto; provided, however, that Parent shall not, and shall cause the Surviving Corporation to not, materially modify such agreements. (b) Following the Effective Time, Parent shall cause the Surviving Corporation to provide each employee the employees of the Company and the Company Subsidiaries who remain employed by Parent, the Surviving Company Parent or the Parent Subsidiaries of Parent after the Effective Time (each, a the “Covered EmployeeCompany Employees”) compensation with at least the types and levels of employee benefits (including contribution levels) maintained from time to time by Parent or the Surviving Corporation for similarly-situated employees of Parent or the Surviving Corporation. Parent represents and warrants that such employee benefits are similar in all material respects in the aggregate that are substantially similar to the compensation and employee benefits provided to such Covered Employee immediately before the Effective Time, excluding equity and equity based plans and awards of interests Programs as in the Operating Partnership provided by the Company and the Company Subsidiaries, as the case may be, to each such Covered Employee immediately effect just prior to the Effective Time; provided. Parent shall, howeverand shall cause the Surviving Corporation to, that nothing contained in this Section 6.9 (subject treat, and cause the applicable benefit plans to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) shall be construed to prevent, from and after the Effective Timetreat, the termination service of employment of any Covered Employee Company Employees with the Company or the amendment Company Subsidiaries (or termination of their predecessor entities) attributable to any particular Employee Program in accordance with its terms. Notwithstanding anything in this Agreement to the contrary, following the Effective Time, the employment of the Covered Employees who are covered by a collective bargaining agreement shall in all events be in accordance with the terms and conditions of such agreements. (b) All service credited to each Covered Employee under the Employee Programs by the Company through period before the Effective Time shall be recognized by Parent and the Surviving Company for all purposes, including for purposes of eligibility, vesting, benefit accruals (but excluding benefit accrual under any defined benefit pension plan) and level of benefits under any employee benefit plan provided by Parent and the Surviving Company. With respect as service rendered to any welfare benefit plan established or maintained by Parent or the Surviving Company Corporation for purposes of eligibility to participate, vesting and for other appropriate benefits, including, but not limited to, applicability of minimum waiting periods for participation. Without limiting the benefit of Covered Employees and their eligible dependantsforegoing, Parent shall not, and shall cause the Surviving Corporation to not, treat any Company shall waive Employee as a “new” employee for purposes of any exclusions under any health or similar plan of Parent or the Surviving Corporation for a pre-existing condition exclusions, eligibility waiting periodsmedical condition, and evidence any deductibles and co-pays paid under any of insurability requirements (to the same extent such limitations, waiting periods, Company’s or evidence any of insurability requirements would not have applied the Company Subsidiaries’ health plans shall be credited towards deductibles and co-pays under the relevant Employee Programhealth plans of Parent or the Surviving Corporation. Parent shall, and shall cause the Surviving Corporation, to use commercially reasonable efforts to make appropriate arrangements with its insurance carrier(s) and provide that any covered expenses incurred on or before the Effective Time in respect of the current plan year by Covered Employees (or any covered dependent of to ensure such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time in respect of such current plan yearresults. (c) Notwithstanding any provision of this Section 6.9 to the contrary, for the one year period following After the Effective Time, Parent shall cause the Surviving Corporation to honor all obligations which accrued prior to the Effective Time under the Company’s annual cash bonus plans and each Company Subsidiary to maintain long-term incentive plans, that in effect the severance plans applicable to Company Employees as set forth any such case, are listed in Section 5.1(h6.8(c) of the Company Disclosure Schedule without any amendment thereto that would be adverse to participantsSchedule. (d) No provision of this Section 6.9 shall create any third-party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof) of the Company or any Company Subsidiary in respect of continued employment (or resumed employment) with Parent, the Surviving Company or the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Program or any plan or arrangement which may be established by Parent, the Surviving Company or any of the Subsidiaries of Parent.

Employee Benefit Arrangements. (a) For the one-year period immediately following the Effective Time, Parent In order to secure an orderly and the Surviving Company shall provide each employee effective transition of the Company and the Company Subsidiaries who remain employed by Parent, the Surviving Company or the Subsidiaries of Parent after the Effective Time (each, a “Covered Employee”) compensation and employee benefits in for the aggregate that are substantially similar to the compensation Transferred Employees and employee benefits provided to such Covered Employee immediately their respective beneficiaries and dependents, Seller and Purchasers shall cooperate, both before the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership provided by the Company and the Company Subsidiaries, as the case may be, to each such Covered Employee immediately prior to the Effective Time; provided, however, that nothing contained in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) shall be construed to prevent, from and after the Effective TimeClosing Date, the termination of employment of any Covered Employee or the amendment or termination of any particular Employee Program in accordance with its terms. Notwithstanding anything in this Agreement to exchange information related to the contraryTransferred Employees, following all to the Effective Time, the employment of the Covered Employees who are covered extent reasonably requested by a collective bargaining agreement shall Purchasers and in all events be in accordance compliance with the terms and conditions of such agreementsany applicable Legal Requirements. (b) All Lead Purchaser shall recognize prior employment service credited completed by the Transferred Employees from their initial date of hire with Seller for the purposes of: (i) accrual of vacation under Lead Purchaser's vacation policy; (ii) eligibility for severance benefits which may be provided from time to each Covered Employee time by Lead Purchaser; (iii) vesting under the Employee Programs applicable Lead Purchaser benefits plans as reasonably designated by the Company through the Effective Time shall be recognized by Parent Lead Purchaser; and the Surviving Company (iv) eligibility for all purposes, including for purposes of eligibility, vesting, benefit accruals (but excluding benefit accrual under any defined benefit pension plan) and level of benefits under any employee benefit plan provided by Parent and the Surviving Company. With respect to any welfare benefit plan established or maintained by Parent or the Surviving Company for the benefit of Covered Employees and their eligible dependants, Parent and the Surviving Company shall waive any pre-existing condition exclusions, eligibility waiting periods, and evidence of insurability requirements (to the same extent such limitations, waiting periods, or evidence of insurability requirements would not have applied coverage under the relevant Employee ProgramLead Purchaser's applicable retirement and health and welfare plans. For the avoidance of doubt, such prior service credit shall include periods of service with Seller and with any PEO that employed (jointly or otherwise) and provide that any covered expenses incurred on or before the Effective Time in respect of the current plan year by Covered Employees (or any covered dependent of such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time in respect of such current plan yearTransferred Employees. (c) Notwithstanding any provision In connection with its employment of this the Transferred Employees, Lead Purchaser agrees that, with the approval of the plan administrator of the applicable Lead Purchaser 401(k) plan (the "Purchaser 401(k) Plan"), which approval will not be unreasonably withheld, the Purchaser 401(k) Plan will accept direct or indirect rollovers of "eligible rollover distributions" within the meaning of Section 6.9 to the contrary, for the one year period following the Effective Time, Parent shall cause the Surviving Corporation and each Company Subsidiary to maintain in effect the severance plans applicable to Company Employees as set forth in Section 5.1(h402(c) of the Company Disclosure Schedule without any amendment thereto that would be adverse Code made from the applicable Seller 401(k) Plan with respect to participantselecting Transferred Employees by reason of their "severance from employment" (within the meaning of Section 401(k)(2)(B)(i)(I) of the Code) with Seller. (d) No provision For the avoidance of this doubt, Seller (or the applicable PEO) shall retain the obligation to provide the notice required by Section 6.9 shall create any third-party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof4980B(f)(6) of the Company Code to all "M&A Qualified Beneficiaries" (as defined in Section 54.4980B-9 Q&A-4(a) of the Treasury Regulations) and shall make available to such individuals continuation coverage under its group health plan in accordance with Section 54.4980B-9 Q&A-7 of the Treasury Regulations. (e) As soon as practicable, but in no event more than thirty (30) days after the Closing Date, Seller shall pay all retention or "stay" bonuses accrued or earned by the Transferred Employees as of the Closing Date. (f) As soon as practicable, but in no event more than thirty (30) days after the Closing Date, Seller shall pay out the accrued vacation credited to each of the Transferred Employees as of the Closing Date up to a maximum of eighty (80) hours. Any accrued vacation credited to a Transferred Employee in excess of eighty (80) hours shall be forfeited with respect to the Seller as of the Closing Date, but Lead Purchaser shall credit each applicable employee with the amount of hours in excess of eighty (80) hours properly listed on Section 4.10(a)(i) of Seller's Disclosure Schedule or properly accrued between the Effective Date and Closing Date by each such Transferred Employee in a manner consistent with Seller's past practices and policies. (g) With respect to any Company Subsidiary bona fide customer orders procured by a Transferred Employee prior to the Closing Date but which are shipped on or after the Closing Date (and with respect to which Seller has not received payment or generated a Receivable included in respect of continued employment (or resumed employment) with Parentthe Excluded Assets), Lead Purchaser shall pay any properly due and owing sales commission to such Transferred Employee pursuant to the Surviving Company or the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect terms of any benefits that may applicable Seller's sales commission plans as in effect on the Closing Date in the Ordinary Course of Business and to the extent such commissions are payable according to the commission plans described on Schedule 4.10(b)(i). Seller shall be providedresponsible for, directly or indirectlyand shall pay, under any Employee Program or any plan or arrangement which may be established by Parentall other sales and similar commissions related to the pre-Closing period. Following the Closing, the Surviving Company or any of the Subsidiaries of ParentLead Purchaser shall pay sales commissions, if any, in its sole discretion.

Employee Benefit Arrangements. (a) For the one-period commencing on the Closing Date and ending on the last day of the calendar year period immediately following in which the Effective TimeClosing Date occurs, Parent and Parent, the Surviving Company or an Affiliate thereof shall provide compensation and benefits for each employee of any Company Group company (as determined immediately prior to the Closing) (collectively, the “Company Group Employees”) who continues employment with Parent, the Surviving Company or any of their Affiliates after the Closing (collectively, the “Continuing Employees”) that are comparable in the aggregate to the compensation and benefits provided by any Company Group company to such employee immediately prior to the Company Subsidiaries who remain Closing (other than equity based compensation, tax gross-ups or make whole payments, and benefits triggered by a change in control). Continuing Employees shall be considered to be employed by Parent, the Surviving Company or the Subsidiaries of Parent after the Effective Time (each, a such Affiliate on an “Covered Employee”) compensation at will” basis and employee benefits in the aggregate that are substantially similar to the compensation and employee benefits provided to such Covered Employee immediately before the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership provided by the Company and the Company Subsidiaries, as the case may be, to each such Covered Employee immediately prior to the Effective Time; provided, however, that nothing contained in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) herein shall be construed to prevent, from and after limit the Effective Time, the termination ability of employment of any Covered Employee or the amendment or termination of any particular Employee Program in accordance with its terms. Notwithstanding anything in this Agreement to the contrary, following the Effective Time, the employment of the Covered Employees who are covered by a collective bargaining agreement shall in all events be in accordance with the terms and conditions of such agreements. (b) All service credited to each Covered Employee under the Employee Programs by the Company through the Effective Time shall be recognized by Parent and the Surviving Company for all purposes, including for purposes of eligibility, vesting, benefit accruals (but excluding benefit accrual under any defined benefit pension plan) and level of benefits under any employee benefit plan provided by Parent and the Surviving Company. With respect to any welfare benefit plan established or maintained by Parent or the Surviving Company for the benefit of Covered Employees and their eligible dependants, Parent and the Surviving Company shall waive any pre-existing condition exclusions, eligibility waiting periods, and evidence of insurability requirements (to the same extent such limitations, waiting periods, or evidence of insurability requirements would not have applied under the relevant Employee Program) and provide that any covered expenses incurred on or before the Effective Time in respect of the current plan year by Covered Employees (or any covered dependent of such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time in respect of such current plan year. (c) Notwithstanding any provision of this Section 6.9 to the contrary, for the one year period following the Effective Time, Parent shall cause the Surviving Corporation and each Company Subsidiary to maintain in effect the severance plans applicable to Company Employees as set forth in Section 5.1(h) of the Company Disclosure Schedule without any amendment thereto that would be adverse to participants. (d) No provision of this Section 6.9 shall create any third-party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof) of the Company or any Company Subsidiary in respect of continued employment (or resumed employment) with Parent, the Surviving Company or such Affiliate to terminate the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect employment of any benefits that may be providedContinuing Employee at any time. (b) With respect to any 401(k), directly health or indirectlywelfare, under any Employee Program severance or any vacation or paid time off plan or arrangement which may be established policy maintained by Parent, the Surviving Company or any of their Affiliates for any Continuing Employee, for purposes of determining eligibility to participate, vesting, and levels of severance pay, vacation pay and other paid time off entitlements, each Continuing Employee’s service with the Company or any of its Subsidiaries (as well as all service with any predecessor employer of the Company or any such Subsidiary, to the extent service with the predecessor employer is recognized by the Company or such Subsidiary) shall be treated as service with Parent, the Surviving Company or an Affiliate thereof to the extent recognized by the Company or its Subsidiaries under an analogous Company Plan for a similar purpose prior to the Closing; provided, that such service shall not be recognized for benefit accrual purposes under any defined benefit pension plan or to the extent such recognition would result in any duplication of benefits or compensation. Without limiting the foregoing, Parent, the Surviving Company and their Affiliates shall recognize the accrued but unused vacation entitlements as of the Closing Date of each Continuing Employee, and shall permit each Continuing Employee to use such vacation time during the calendar year in which the Closing occurs. (c) With respect to each medical, dental, vision and prescription drug plan and program maintained by Parent, the Surviving Company or any of their Affiliates for the benefit of any Continuing Employee (and his or her eligible dependents), Parent, the Surviving Company or such Affiliate shall make commercially reasonable efforts to (i) cause to be waived any eligibility waiting periods, actively-at-work requirements, evidence of insurability requirements and the application of any pre-existing conditions or limitations under such plan or program, and (ii) cause each Continuing Employee (and his or her eligible dependents) to be given credit under such plan or program for all amounts paid by such Continuing Employee (or his or her eligible dependents) under any similar Company Plans for the plan year that includes the Closing Date for purposes of applying deductibles, co-payments, coinsurance and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the applicable plan maintained by Parent, the Surviving Company or such Affiliate for the plan year in which the Closing Date occurs. (d) Unless otherwise requested by the Parent, the Company Group companies shall terminate the Cervalis LLC 401(k) Plan by proper Board action effective no later than the day before the Closing Date. Effective as of the Closing Date, Parent shall have, or cause the Surviving Company or another of its Affiliates to have, in effect for Continuing Employees a defined contribution plan that includes a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code intended to be qualified pursuant to Section 401(a) of the Code (the “Surviving Company 401(k) Plan”). Parent, the Surviving Company or such other Affiliate shall, in accordance with its obligations under Section 5.6(b), ensure that Continuing Employees shall receive credit for all service credited under the Cervalis LLC 401(k) Plan (the “Cervalis 401(k) Plan”) for purposes of eligibility and vesting under the Surviving Company 401(k) Plan to the extent credited for the same purpose under the Cervalis 401(k) Plan as of the Closing Date. Subject to applicable law and the terms of the Cervalis 401(k) Plan, Continuing Employees who participated in the Cervalis 401(k) Plan shall be entitled to receive a distribution of their vested account balance under that plan or to roll over all or a portion of such vested account balance to the Surviving Company 401(k) Plan, and Parent, the Surviving Company or such Affiliate shall cause the Surviving Company 401(k) Plan to accept any such rollovers that are “eligible rollover distributions” (within the meaning of Section 402(c)(4) of the Code) made in cash or in the form of participant loan promissory notes. (e) The Company and Parent acknowledge and agree that all provisions contained in this Section 5.6 with respect to Company Group Employees and Continuing Employees are included for the sole benefit of the Company and Parent, and that nothing in this Section 5.6, whether express or implied, shall be treated as an amendment or other modification to any Company Plan or other benefit or compensation plan, agreement or other arrangement or create any third party beneficiary or other rights (i) in any Person other than the Parties to this Agreement, including any Company Group Employees, former Company Group Employees, Continuing Employees, any participant in any Company Plan, or any dependent or beneficiary thereof, or (ii) to continued employment or any particular term of condition of employment of any Person with the Company, Parent or any of their respective Affiliates.

Employee Benefit Arrangements. (a) For the one-year period immediately Immediately following the Effective TimeClosing Date, Parent and Buyer shall provide (or cause the Surviving Corporate Group to provide) the Company Employees with employee benefits (other than equity-based awards) that are substantially comparable in the aggregate to those employee benefits currently provided to the Company Employees. (b) To the extent permitted by the applicable plan, Buyer shall use commercially reasonable efforts to take (or cause the Surviving Corporate Group to take) such actions as are necessary to provide each the Company Employees with credit for purposes of vesting, eligibility, participation and level of benefits (but not for purposes of determining an accrued benefit under any defined benefit pension plan of Buyer or the Surviving Corporate Group (or any Subsidiary thereof)) under all employee benefit plans maintained by Buyer or the Surviving Corporate Group (or any Subsidiary thereof) in which such Company Employee participates on or after the Closing Date, for such Company Employees’ service with the Company and its ERISA Affiliates, to the same extent and for the same purposes that such service was recognized under a corresponding Company Plan of the Company and or its ERISA Affiliates as of the Company Subsidiaries who remain employed by Parent, the Surviving Company or the Subsidiaries of Parent after the Effective Time (each, a “Covered Employee”) compensation and employee benefits in the aggregate that are substantially similar to the compensation and employee benefits provided to such Covered Employee immediately before the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership provided by the Company and the Company Subsidiaries, as the case may be, to each such Covered Employee immediately prior to the Effective TimeClosing Date; provided, however, that nothing contained in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) no such credit shall be construed to prevent, from and after the Effective Time, the termination of employment of any Covered Employee or the amendment or termination of any particular Employee Program in accordance with its terms. Notwithstanding anything in this Agreement required to the contrary, following the Effective Time, the employment of the Covered Employees who are covered by extent that such credit would result in a collective bargaining agreement shall in all events be in accordance with the terms and conditions of such agreements. (b) All service credited to each Covered Employee under the Employee Programs by the Company through the Effective Time shall be recognized by Parent and the Surviving Company for all purposes, including for purposes of eligibility, vesting, benefit accruals (but excluding benefit accrual under any defined benefit pension plan) and level duplication of benefits under any employee benefit plan provided by Parent and the Surviving Company. With respect to any welfare benefit plan established or maintained by Parent or the Surviving Company for the benefit same period of Covered Employees and their eligible dependants, Parent and the Surviving Company shall waive any pre-existing condition exclusions, eligibility waiting periods, and evidence of insurability requirements (to the same extent such limitations, waiting periods, or evidence of insurability requirements would not have applied under the relevant Employee Program) and provide that any covered expenses incurred on or before the Effective Time in respect of the current plan year by Covered Employees (or any covered dependent of such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time in respect of such current plan yearservice. (c) Notwithstanding any provision of this Section 6.9 Subject to the contraryrequirements of applicable Law, for the one year period following the Effective Time, Parent Buyer shall use commercially reasonable efforts to take (or cause the Surviving Corporation Corporate Group to take) such actions as are necessary to cause the group health plan maintained by Buyer or the Surviving Corporate Group (or any Subsidiary thereof), to the extent such group health plan is made available to Company Employees after the Closing, to (i) waive any evidence of insurability requirements, waiting periods, and each Company Subsidiary any limitations as to maintain in effect preexisting medical conditions under the severance plans group health plan applicable to Company Employees as set forth in Section 5.1(h) of and their spouses and eligible dependents (but only to the extent that such preexisting condition limitations did not apply or were satisfied under the applicable Company Plan maintained by the Company Disclosure Schedule without or its ERISA Affiliates prior to the Closing) and (ii) provide Company Employees with credit, for the calendar year in which the Closing occurs, for the amount of any amendment thereto out-of pocket expenses and copayments or deductible expenses that would be adverse to participantswere covered by the applicable Company Plan and are incurred by them during the calendar year in which the Closing occurs under a group health plan maintained by Buyer or the Surviving Corporate Group (or any Subsidiary thereof). (d) No Should the Buyer request the Company to terminate a Company Plan which is intended to be qualified within the meaning of Section 401(A) of the Code immediately prior to the Closing Date, pursuant to the provision of in this Section 6.9 7.9, Buyer shall (or cause the Surviving Corporate Group to) take such actions as are necessary to cause a retirement plan maintained by it or one of its ERISA Affiliates that is qualified under Section 401(A) of the Code to accept direct and indirect rollover distributions of the Company Employees’ balances under the Company’s Plan, including promissory notes evidencing outstanding plan loans (if any). (e) Prior to the Closing, the Company shall, and shall cause its Subsidiaries to, reasonably cooperate with Buyer to (i) provide certain information to the Company Employees regarding Buyer’s or the Surviving Corporate Group’s (or any Subsidiary thereof) employee benefit plans (to the extent such plans will be made available to the Company Employees) and employee orientation sessions (with such sessions to be held during scheduled work hours at times reasonably agreed to by the Company and Buyer), and (ii) otherwise meet with Company Employees (either individually or in groups) during breaks, outside of scheduled work hours, or as otherwise agreed to by the Company and Buyer. (f) The Company shall, or shall cause its Subsidiaries to, take all actions that may be reasonably requested by Buyer in writing prior to the Closing Date with respect to (i) causing one or more Company Plans, or arrangements with any payroll, benefits or human resources service provider to the Company Group, to terminate as of the Closing Date, or as of the date immediately prior to the Closing Date, as specified by Buyer, (ii) causing benefit accrual or entitlement under any Company Plan to cease as of the Closing Date, (iii) causing the continuation on and after the Closing Date of any insurance policy or arrangement relating to any Company Plan, or (iv) facilitating the merger of any Company Plan into any employee benefit plan maintained by Buyer or the Surviving Corporate Group (or any of Subsidiary thereof). (g) Buyer, Merger Sub 1, Merger Sub 2 and the Company acknowledge and agree that all provisions contained in this Section 7.9 are included for the sole benefit of Buyer, Merger Sub 1, Merger Sub 2 and the Company, and that nothing in this Agreement, whether express or implied, (i) shall be treated as an amendment or other modification of any Company Plan or other benefit plan, agreement or other arrangement, (ii) shall limit the right of Buyer, the Company, or their respective Subsidiaries to amend, terminate or otherwise modify any Company Plan or other benefit plan, agreement or other arrangement (or otherwise limit the Company’s ability to modify the employee benefits provided to the Company Employees) following the Closing Date, or (iii) shall create any third-third party beneficiary rights or other right (x) in any employee other Person, including, without limitation, any current or former employee of any member of the Company Group, any participant in any Company Plan or other benefit plan, agreement or other arrangement (including or any dependent or beneficiary thereof), or dependent thereof(y) to continued employment with Buyer, the Company, or any of their respective Affiliates. (h) The Company shall, and shall cause its Subsidiaries to, obtain, at least five business days prior to the Closing Date, from each Person to whom any payment or benefit (including, without limitation, the vesting of any Option) is required or proposed to be made that could constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code) a written agreement waiving such Person’s right to receive some or all of such payment or benefit (the “Waived Benefit”) so that all remaining payments and benefits applicable to such Person shall not be deemed to be a parachute payment that would not be deductible under Section 280G of the Code, and to accept in substitution for the Waived Benefit the right to receive such remaining payment or benefit only if approved by the stockholders of the Company in a manner that complies with Section 280G(b)(5)(B) of the Code. Each such waiver shall identify the specific Waived Benefit and shall provide that if such stockholder approval is not obtained, such payments shall not be made and such Person shall have no right or entitlement with respect thereto. As soon as practicable thereafter but in any Company Subsidiary in respect of continued employment (or resumed employment) with Parentevent prior to the Closing Date, the Surviving Company or shall obtain stockholder approval, in a manner that complies with Section 280G(b)(5)(B) of the Subsidiaries Code, of Parent all such payments that have been conditioned on the receipt of such approval. The determination of which payments may be deemed to constitute parachute payments, the form of each such waiver, and no provision the disclosure and other circumstances of this Section 6.9 shall create such rights in any such persons in respect of any benefits that may stockholder approval shall be provided, directly or indirectly, under any Employee Program or any plan or arrangement which may be established by Parent, the Surviving Company or any of the Subsidiaries of Parentprovided to Buyer for Buyer’s advance review and comment.

Employee Benefit Arrangements. (a) For Following the one-year period immediately following the Fourth Effective Time, Parent and the employees of the Surviving Company shall provide each employee of the Company Companies and the Company their Subsidiaries who remain employed by Parent, the Surviving Company or the Subsidiaries of Parent after the Fourth Effective Time (each, a the “Covered EmployeeSelling Companies Employees”) compensation and employee benefits will be entitled to participate in either (a) the Employee Benefit Plans (other than equity-based plans) on the same terms, or terms which in the aggregate that are provide substantially similar to the compensation and employee benefits provided to such Covered Employee immediately before the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership provided by the Company and the Company Subsidiariescomparable benefits, as the case may be, to each such Covered Employee those in effect immediately prior to the Effective Time; provided, however, that nothing contained in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) shall be construed to prevent, from and after the First Effective Time, the termination of employment of any Covered Employee or the amendment or termination of any particular Employee Program in accordance with its terms. Notwithstanding anything in this Agreement to the contrary, following the Effective Time, the employment of the Covered Employees who are covered by a collective bargaining agreement shall in all events be in accordance with the terms and conditions of such agreements. (b) All service credited to the employee benefit plans of Parent and its Subsidiaries on the same terms as similarly-situated employees of Parent and its Subsidiaries or (c) a combination of (a) and (b), and in each Covered Employee under case in the discretion of Parent, and Parent may terminate any of the Employee Programs by Benefit Plans or merge any of the Company through Employee Benefit Plans with Parent’s employee benefit plans as Parent deems appropriate. Subject to the requirements of applicable Law and unless such recognition of service would result in a duplication of benefits, Parent shall, and shall cause the Surviving Companies to, treat, and cause the applicable benefit plans to treat, the service of Selling Companies Employees with the Selling Companies or their Subsidiaries attributable to any period before the First Effective Time shall be recognized by as service rendered to Parent and or the Surviving Company Companies for all purposes, including but not limited to, eligibility to participate, vesting and for other appropriate benefit accruals, including, but not limited to, applicability of any minimum waiting periods for participation, excluding for these purposes of eligibility, vesting, benefit accruals (but excluding benefit accrual accrued under any defined benefit pension plan) . Without limiting the foregoing, Parent shall not, and level shall cause the Surviving Companies not to, treat any Selling Companies Employee as a “new” employee for purposes of benefits any exclusions under any employee benefit health or similar plan provided by Parent and the Surviving Company. With respect to any welfare benefit plan established or maintained by of Parent or the Surviving Company Companies for the benefit of Covered Employees and their eligible dependants, Parent and the Surviving Company shall waive any a pre-existing condition exclusionsmedical condition, eligibility waiting periods, and evidence of insurability requirements (except to the same extent such limitations, waiting periods, or evidence exclusions were applicable under a Plan of insurability requirements would not have applied under the relevant Employee Program) and provide that any covered expenses incurred on or a Selling Company immediately before the Effective Time in respect of the current plan year by Covered Employees (or any covered dependent of such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time in respect of such current plan year. (c) Notwithstanding any provision of this Section 6.9 to the contrary, for the one year period following the First Effective Time, Parent shall cause the Surviving Corporation and each Company Subsidiary to maintain in effect the severance plans applicable to Company Employees as set forth in Section 5.1(h) of the Company Disclosure Schedule without any amendment thereto that would be adverse to participants. (d) No provision of this Section 6.9 shall create any third-party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof) of the Company or any Company Subsidiary in respect of continued employment (or resumed employment) with Parent, the Surviving Company or the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Program or any plan or arrangement which may be established by Parent, the Surviving Company or any of the Subsidiaries of Parent.

Employee Benefit Arrangements. (a) For Each Employee Benefit Arrangement complies in form with the one-year period immediately following the Effective Time, Parent requirements of all applicable laws and has at all times been maintained and operated in compliance with its terms and the Surviving Company shall provide each employee requirements of all applicable laws, except for any failure to so comply that would not reasonably be expected to result in a material liability of any Company. Neither of the Company and the Company Subsidiaries who remain employed by ParentCompanies has any commitment, the Surviving Company intention or the Subsidiaries of Parent after the Effective Time (eachunderstanding to create, a “Covered Employee”) compensation and employee benefits in the aggregate modify or terminate any Employee Benefit Arrangement. No condition or circumstance exists that are substantially similar to the compensation and employee benefits provided to such Covered Employee immediately before the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership provided by the Company and the Company Subsidiaries, as the case may be, to each such Covered Employee immediately prior to the Effective Time; provided, however, that nothing contained in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) shall be construed to prevent, from and after the Effective Time, the termination of employment of any Covered Employee or would prevent the amendment or termination of any particular Employee Program Benefit Arrangement. No event has occurred and no condition or circumstance has existed that could result in accordance with its terms. Notwithstanding anything a material increase in this Agreement the benefits under or the expense of maintaining each Employee Benefit Arrangement from the level of benefits or expense incurred for the most recent fiscal year ended thereof (other than the payment or accrual of bonuses pursuant to the contrary, following the Effective Time, the employment terms of the Covered Employees who applicable Employee Benefit Arrangement). There are covered no actions, suits, claims or disputes pending, or, to the Knowledge of the Seller, threatened, anticipated or expected to be asserted against or with respect to any Employee Benefit Arrangement (other than routine claims for benefits and appeals of denied routine claims). Full payment has been timely made of all amounts that any of the Companies is required to have paid under any Employee Benefit Arrangement, applicable law or any related agreement. All such payments have been fully deducted for income tax purposes and, to the Knowledge of the Seller, no such deduction has been challenged or disallowed by a collective bargaining agreement shall in all events be in accordance with any governmental entity, and to the terms Knowledge of the Seller no event has occurred and conditions no condition or circumstance has existed that could give rise to any such challenge or disallowance. Each of such agreements. (b) All service credited the Companies has made adequate provision for reserves to each Covered Employee meet any liabilities under the Employee Programs by Benefit Arrangements that have not been paid or satisfied because they are not yet due, to the Company through extent consistent with applicable law, the Effective Time shall be recognized by Parent provisions of the applicable Employee Benefit Arrangement documents or prior practice. Except as disclosed on Schedule 2.19(h)(i), the execution of this Agreement and the Surviving Company for all purposes, including for purposes consummation of eligibility, vesting, benefit accruals (but excluding benefit accrual the transactions contemplated hereby do not constitute a triggering event under any Employee Benefit Arrangement which (either alone or upon the occurrence of any additional or subsequent event) will or may result in any payment (whether of severance pay or otherwise), "parachute payment" (as such term is defined benefit pension plan) and level of benefits under any employee benefit plan provided by Parent and the Surviving Company. With respect to any welfare benefit plan established or maintained by Parent or the Surviving Company for the benefit of Covered Employees and their eligible dependants, Parent and the Surviving Company shall waive any pre-existing condition exclusions, eligibility waiting periods, and evidence of insurability requirements (to the same extent such limitations, waiting periods, or evidence of insurability requirements would not have applied under the relevant Employee Program) and provide that any covered expenses incurred on or before the Effective Time in respect Section 280G of the current plan year by Covered Employees (Code), acceleration, vesting or any covered dependent of such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time increase in respect of such current plan year. (c) Notwithstanding any provision of this Section 6.9 benefits to the contrary, for the one year period following the Effective Time, Parent shall cause the Surviving Corporation and each Company Subsidiary to maintain in effect the severance plans applicable to Company Employees as set forth in Section 5.1(h) of the Company Disclosure Schedule without any amendment thereto that would be adverse to participants. (d) No provision of this Section 6.9 shall create any third-party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof) director or manager of the Company or any Company Subsidiary in respect of continued employment (or resumed employment) with Parent, the Surviving Company or the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Program or any plan or arrangement which may be established by Parent, the Surviving Company or any of the Subsidiaries Companies. Except as disclosed on Schedule 2.19(h)(ii), no Employee Benefit Arrangement provides for the payment of Parentseverance, termination, change in control or similar-type payments or benefits. Neither the Buyer nor any Affiliate thereof (including, after the Closing, the Companies) will have any liability under an Employee Benefit Arrangement listed (or required to be listed) on Schedule 2.19(h)(ii) other than the Assumed Benefit Plans and Arrangements. The Seller has made available to the Buyer true and complete copies of all documents in connection with each Employee Benefit Arrangement in which Employees of any of the Companies participate.

Employee Benefit Arrangements. (a) For Buyer agrees that, during the one-year period immediately following commencing at the Effective TimeTime and ending on the first anniversary thereof, Parent and the Surviving Company shall provide each employee employees of the Company and the Company its Subsidiaries who remain employed by Parent, the Surviving Company or the Subsidiaries of Parent after the Effective Time (each, a “Covered Employee”) compensation will continue to be provided with pension and welfare benefits under employee benefits benefit plans that are substantially comparable in the aggregate that are substantially similar to the compensation and employee benefits provided to such Covered Employee immediately before the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership than those currently provided by the Company and its Subsidiaries to such employees or substantially comparable in the Company aggregate to those provided to similarly situated employees of Buyer and its Subsidiaries, as elected by Buyer in its sole discretion. Buyer will cause any employee benefit plans which the case may beemployees of the Company and its Subsidiaries are eligible to participate in to take into account for purposes of eligibility and vesting thereunder, except for purposes of qualifying for subsidized early retirement benefits or to the extent it would result in a duplication of benefits, service by employees of the Company and its Subsidiaries as if such service were with Buyer, to each the same extent such Covered Employee service was credited under a comparable plan of the Company and its Subsidiaries and to the extent that such time period is recognized under the terms of such plan of Buyer. (b) Each of Buyer and the Company acknowledges that, for the Benefit Plans listed on Schedule 7.8(b), the consummation of the transactions contemplated by this Agreement will constitute a change in control of the Company. Each of Buyer and the Company further acknowledge that, for the avoidance of doubt, the consummation of the transactions contemplated by this Agreement will not constitute a “Transaction Event” for purposes of the T-Zero Long-Term Incentive Plan and the Q-Wixx Long-Term Incentive Plan. (c) Prior to the Effective Time, if requested by Buyer in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (1) cause to be amended the Benefit Plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Buyer and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (2) cause the Company’s 401(k) Plan to be terminated effective immediately prior to the Effective Time; provided, however, that nothing contained in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) shall be construed to prevent, from and after the Effective Time, the termination of employment of any Covered Employee or the amendment or termination of any particular Employee Program in accordance with its terms. Notwithstanding anything in this Agreement to the contrary, following the Effective Time, the employment of the Covered Employees who are covered by a collective bargaining agreement shall in all events be in accordance with the terms and conditions of such agreements. (bd) All To the same extent that such service credited to each Covered Employee under the Employee Programs was recognized by the Company through for purposes of the Benefit Plans, Buyer shall, and shall cause the Surviving Corporation to, treat, and cause the applicable benefit plans to treat, the service of Surviving Corporation employees with the Company or the Subsidiaries of the Company attributable to any period before the Effective Time shall be recognized by Parent and as service rendered to Buyer or the Surviving Company Corporation for all purposes, including purposes (except for purposes of eligibilityqualifying for subsidized early retirement benefits, vesting, benefit accruals (but excluding for purposes of benefit accrual under any defined benefit pension plan) and level plans or to the extent that it would result in a duplication of benefits under any employee benefit plan provided by Parent and the Surviving Company. With respect to any welfare benefit plan established or maintained by Parent or the Surviving Company for the benefit of Covered Employees and their eligible dependantsbenefits), Parent and the Surviving Company shall waive any pre-existing condition exclusionsincluding but not limited to, eligibility to participate, vesting and applicability of any minimum waiting periodsperiods for participation. Without limiting the foregoing, to the extent reasonably practicable under the Company’s contracts with its insurance carrier(s), Buyer shall not, and evidence of insurability requirements (to the same extent such limitations, waiting periods, or evidence of insurability requirements would not have applied under the relevant Employee Program) and provide that any covered expenses incurred on or before the Effective Time in respect of the current plan year by Covered Employees (or any covered dependent of such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time in respect of such current plan year. (c) Notwithstanding any provision of this Section 6.9 to the contrary, for the one year period following the Effective Time, Parent shall cause the Surviving Corporation not to, treat any Surviving Corporation employee as a “new” employee for purposes of any exclusions under any health or similar plan of Buyer or the Surviving Corporation for a pre-existing medical condition, and each Company Subsidiary to maintain in effect the severance plans applicable to Company Employees as set forth in Section 5.1(h) any deductibles and co-pays paid under any of the Company Disclosure Schedule without Company’s or any of its Subsidiaries’ health plans shall be credited towards deductibles and co-pays under the health plans of Buyer or the Surviving Corporation to the extent recognized under the analogous Benefit Plans. Notwithstanding the foregoing, nothing contained herein shall (1) be treated as an amendment thereto that would be adverse of any particular Benefit Plan, (2) give any third party any right to participants. (d) No provision enforce the provisions of this Section 6.9 shall create any third-party beneficiary rights in any employee 7.8, or former employee (including any beneficiary or dependent thereof3) of the Company or any Company Subsidiary in respect of continued employment (or resumed employment) with Parentobligate Buyer, the Surviving Company or the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Program or any plan or arrangement which may be established by Parent, the Surviving Company Corporation or any of its Affiliates to (i) maintain any particular Benefit Plan or (ii) retain the Subsidiaries employment of Parentany particular employee.

Employee Benefit Arrangements. (a) For After the one-year period immediately following the Effective TimeClosing Date, Parent and the Surviving Company shall provide each employee all employees of the Company and the Company's Subsidiaries ("Company Subsidiaries Employees") who remain are employed by Parent, including the Surviving REIT, shall, at the option of Parent, either continue to be eligible to participate in an "employee benefit plan", as defined in Section 3(3) of ERISA (an "Employee Benefit Plan"), of the Company which is, at the option of Parent, continued by Parent, or alternatively shall be eligible to participate in the same manner as other similarly situated employees of Parent or its Subsidiaries in a similar Employee Benefit Plan sponsored or maintained by Parent or in which employees of Parent or its Subsidiaries participate after the Closing Date. With respect to each such Employee Benefit Plan of Parent, service with the Company or the any of its Subsidiaries of Parent after the Effective Time (each, a “Covered Employee”) compensation and employee benefits in the aggregate that are substantially similar to the compensation and employee benefits provided to such Covered Employee immediately before the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership provided by the Company and the Company predecessor of any of them shall be included for purposes of determining eligibility to participate, vesting (if applicable) and determination of the level of entitlement to benefits under such Employee Benefit Plan. Parent shall, or shall cause its Subsidiaries, as the case may be, to, (i) waive all limitations as to each preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to all Company Employees under any comparable welfare plan that such Covered Employee Company Employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any comparable welfare plan maintained by the Company for such employees immediately prior to the Effective Time; providedClosing Date, however, and (ii) provide each such Company Employee with credit for any co-payments and deductibles paid prior to the Closing Date for the plan year within which the Closing Date occurs in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans that nothing contained such employees are eligible to participate in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) shall be construed to prevent, from and after the Effective Time, the termination of employment of any Covered Employee or the amendment or termination of any particular Employee Program in accordance with its terms. Notwithstanding anything in this Agreement to the contrary, following the Effective Time, the employment of the Covered Employees who are covered by a collective bargaining agreement shall in all events be in accordance with the terms and conditions of such agreementsClosing Date. (b) All service credited to each Covered Employee under the Employee Programs by the Company through the Effective Time shall be recognized by Parent At and the Surviving Company for all purposes, including for purposes of eligibility, vesting, benefit accruals (but excluding benefit accrual under any defined benefit pension plan) and level of benefits under any employee benefit plan provided by Parent and the Surviving Company. With respect to any welfare benefit plan established or maintained by Parent or the Surviving Company for the benefit of Covered Employees and their eligible dependants, Parent and the Surviving Company shall waive any pre-existing condition exclusions, eligibility waiting periods, and evidence of insurability requirements (to the same extent such limitations, waiting periods, or evidence of insurability requirements would not have applied under the relevant Employee Program) and provide that any covered expenses incurred on or before the Effective Time in respect of the current plan year by Covered Employees (or any covered dependent of such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time in respect of such current plan year. (c) Notwithstanding any provision of this Section 6.9 to the contrary, for the one year period following the Effective TimeClosing Date, Parent shall cause the Surviving Corporation REIT to honor in accordance with their terms all employment agreements, severance agreements, retention bonus agreements and each other bonus, retention and severance obligations of the Company Subsidiary to maintain in effect the severance plans applicable to Company Employees as set forth or any of its Subsidiaries, all of which are listed in Section 5.1(h6.8(b) of the Company Disclosure Schedule without any amendment thereto that would Schedule, and as may otherwise be adverse agreed to participants. (d) No provision of this Section 6.9 shall create any third-party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof) of by the Company or any Company Subsidiary in respect of continued employment (or resumed employment) with and Parent, and the Surviving Company shall pay on the Closing Date to the applicable trustees, officers and employees any amounts with respect to such agreements and obligations that are payable by their terms at or before the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Program or any plan or arrangement which may be established by Parent, the Surviving Company or any of the Subsidiaries of ParentClosing Date.

Employee Benefit Arrangements. (a) For Immediately after the one-year period immediately following Closing Date, the Effective Time, Parent and the Surviving Company or a Company Subsidiary shall provide continue to employ each employee of individual employed by the Company and the Company Subsidiaries who remain was employed by Parent, the Surviving Company or the Subsidiaries of Parent after the Effective Time (each, a “Covered Employee”) compensation and employee benefits in the aggregate that are substantially similar to the compensation and employee benefits provided to such Covered Employee immediately before the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership provided by the Company and the Company Subsidiaries immediately prior to the Effective Time and whose name is set forth on Section 6.8(a) of the Company Disclosure Schedule (such employees, collectively, the “Business Employees”). Immediately after the Closing Date, all Business Employees shall continue to be eligible to participate in all “employee benefit plans”, as defined in Section 3(3) of ERISA (an “Employee Benefit Plan”), of the Company which are continued by Parent, or alternatively shall be eligible to participate in the same manner as other similarly situated employees of Parent or its Subsidiaries in similar Employee Benefit Plan sponsored or maintained by Parent or in which employees of Parent or its Subsidiaries participate after the Closing Date. With respect to each such Employee Benefit Plan of Parent, service with the Company or any of its Subsidiaries and the predecessor of any of them shall be included for purposes of determining eligibility to participate and vesting (if applicable) under such Employee Benefit Plan. Parent shall, or shall cause its Subsidiaries, as the case may be, to each use its commercially reasonable efforts consistent with applicable Law to, (i) waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to all Business Employees under any comparable welfare plan that such Covered Employee Business Employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any comparable welfare plan maintained by the Company for such employees immediately prior to the Effective Time; providedClosing Date, however, and (ii) provide each such Business Employee with credit for any co-payments and deductibles paid prior to the Closing Date for the plan year within which the Closing Date occurs in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans that nothing contained such employees are eligible to participate in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) shall be construed to prevent, from and after the Effective Time, the termination of employment of any Covered Employee or the amendment or termination of any particular Employee Program in accordance with its terms. Notwithstanding anything in this Agreement to the contrary, following the Effective Time, the employment of the Covered Employees who are covered by a collective bargaining agreement shall in all events be in accordance with the terms and conditions of such agreementsClosing Date. (b) All service credited to each Covered Employee under the Employee Programs by the Company through the Effective Time shall be recognized by Parent and the Surviving Company for all purposes, including for purposes of eligibility, vesting, benefit accruals (but excluding benefit accrual under any defined benefit pension plan) and level of benefits under any employee benefit plan provided by Parent and the Surviving Company. With respect to any welfare benefit plan established or maintained by Parent or the Surviving Company for the benefit of Covered Employees and their eligible dependants, Parent and the Surviving Company shall waive any pre-existing condition exclusions, eligibility waiting periods, and evidence of insurability requirements (to the same extent such limitations, waiting periods, or evidence of insurability requirements would not have applied under the relevant Employee Program) and provide that any covered expenses incurred on or before the Effective Time in respect of the current plan year by Covered Employees (or any covered dependent of such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) Immediately after the Effective Time in respect of such current plan year. (c) Notwithstanding any provision of this Section 6.9 to the contrary, for the one year period following the Effective TimeClosing Date, Parent shall cause the Surviving Corporation and each Company Subsidiary to maintain provide the Business Employees with employee benefits no less favorable in the aggregate than those in effect prior to the Closing Date and to honor fully in accordance with their terms all employment agreements, severance plans applicable to agreements, retention bonus agreements and other bonus, retention and severance obligations of the Company Employees as set forth or any of its Subsidiaries, which are listed in Section 5.1(h6.8(b) of the Company Disclosure Schedule without Schedule, and except as may otherwise be agreed to by the Company and Parent, and the Company shall pay on the Closing Date to the applicable directors, officers and employees any amendment thereto amounts with respect to such agreements and obligations that would be adverse to participantsare payable by their terms at or before the Closing Date. (dc) No provision of Nothing in this Section 6.9 6.8 shall create any third-third party beneficiary rights right in any employee person other than the parties to this Agreement, including any current or former employee (including Business Employee, any beneficiary or dependent thereof) of the Company participant in any Employee Program, or any Company Subsidiary in respect of dependent or beneficiary thereof, or any right to continued employment with (or resumed employment) right to continued participation in, or continued level of benefits with Parentrespect to, the Surviving Company or the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Program or any plan employee benefit plan, program, agreement or arrangement which may be established by of) Parent, any Affiliate of Parent, the Company or the Surviving Company or any of their respective Affiliates following the Closing Date. Nothing in this Section 6.8 shall constitute an amendment to any Employee Program or any other plan or arrangement covering Business Employees. The Company and Parent shall each cooperate with the other and shall provide to the other such documentation, information and assistance as is reasonably necessary to effect the provisions of this Section 6.8. (d) The Company shall use commercially reasonable efforts to cooperate with Parent to (i) minimize the effects of any payment of any amount that could be received (whether in cash, property, the vesting of property or otherwise) as a result of or in connection with the consummation of the transactions contemplated by this Agreement (either alone or in combination with any other event), by any employee, officer, director or other service provider of the Company or any of the Company Subsidiaries who is a “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) and that could be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of Parentthe Code); provided, that the recipient of the foregoing amounts shall not be required to reduce in any way the benefits or other amounts payable to such person and (ii) at the Effective Time, amend, reform or supplement the terms of any nonqualified deferred compensation plan (within the meaning of Code Section 409A and related guidance) covering any Business Employee to the extent the Company and the Parent reasonably agree such amendment, reform or supplement (A) is necessary or appropriate to comply with Code Section 409A or to exempt payments thereunder from Code Section 409A and thereby avoid the application of penalty taxes under Code Section 409A, and (B) preserves, to the extent practicable, the intended treatment of the original plan with respect to the Company and the applicable participants.

Employee Benefit Arrangements. (a) For The Merger Agreement provides that except as set forth below, the one-year period immediately following Company will, and will cause its Subsidiaries to, and from and after the Effective Time, Parent will, and will cause the Surviving Corporation to, honor, in accordance with their terms, all existing employment, severance, consulting and salary continuation agreements between the Company shall provide each or any of its Subsidiaries and any current or former officer, director, employee or consultant of the Company and or any of its Subsidiaries to the Company Subsidiaries who remain employed by Parent, the Surviving Company or the Subsidiaries of Parent after the Effective Time (each, a “Covered Employee”) compensation and employee benefits extent specified in the aggregate that are substantially similar disclosure letter to the compensation and employee benefits provided to such Covered Employee immediately before the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership provided by the Company and the Company Subsidiaries, as the case may be, to each such Covered Employee immediately prior to the Effective TimeMerger Agreement; provided, however, that nothing contained in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Merger Agreement will preclude the Parent or any of its affiliates from having the right to terminate the employment of any employee, with or without cause, or to amend or terminate in accordance with its terms and applicable law any employee benefit plan of Parent (including Section 9.9 hereof"Parent Benefit Plan") shall be construed established, maintained or contributed to preventby Parent or any of its affiliates after the Effective Time. The Merger Agreement also provides that, from and after the Effective Time, Parent will either continue existing Employee Benefit Plans (including without limitation any severance plan or arrangement) and compensation practices or will provide, or cause the termination Surviving Corporation or its Subsidiaries to provide, benefits to employees of employment the Company and its Subsidiaries, other than employees covered by collective bargaining agreements, that are no less favorable in the aggregate than the benefit plans and programs provided to similarly situated employees of Parent or its Subsidiaries; provided, however, that nothing in the Merger Agreement will preclude the Parent or any Covered Employee or of its affiliates from having the amendment or termination of any particular Employee Program right to terminate in accordance with its terms. Notwithstanding anything in this Agreement terms and applicable law any Parent Benefit Plan established, maintained or contributed to by the contrary, following Parent or any of its affiliates after the Effective Time. The Merger Agreement also provides that, except as specifically provided therein, Parent will, and will cause the employment Surviving Corporation to, cause service rendered by employees of the Covered Employees who are covered by a collective bargaining agreement shall in all events be in accordance with the terms Company and conditions of such agreements. (b) All service credited its Subsidiaries prior to each Covered Employee under the Employee Programs by the Company through the Effective Time shall to be recognized by Parent taken into account for vesting and eligibility under all employee benefit plans, programs, policies and arrangements of Parent, the Surviving Corporation and its Subsidiaries, to the same extent as such service was taken into account under the corresponding plans of the Company and its Subsidiaries for all those purposes, including for purposes provided that nothing in the Merger Agreement will result in the duplication of eligibility, vesting, benefit accruals (but excluding benefit accrual under any defined benefit pension plan) benefits. Employees of the Company and level of benefits under any employee benefit plan provided by Parent and the Surviving Company. With respect its Subsidiaries will not be subject to any welfare benefit plan established or maintained by Parent or the Surviving Company for the benefit of Covered Employees and their eligible dependants, Parent and the Surviving Company shall waive any pre-existing condition exclusionslimitation under any health plan of Parent, eligibility waiting periods, and evidence of insurability requirements (the Surviving Corporation or its Subsidiaries for any condition for which they would have been entitled to the same extent such limitations, waiting periods, or evidence of insurability requirements would not have applied coverage under the relevant Employee Program) and provide that any covered expenses incurred on or before the Effective Time in respect corresponding plan of the current plan year by Covered Employees (Company or any covered dependent of such an employee) shall be taken into account for purposes of satisfying applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time its Subsidiaries in respect of such current plan year. (c) Notwithstanding any provision of this Section 6.9 which they participated prior to the contrary, for the one year period following the Effective Time. Parent will, Parent shall and will cause the Surviving Corporation and each its Subsidiaries, to give such employees credit under such plans for co-payments made and deductibles satisfied prior to the Effective Time. INDUSTRIAL SITE RECOVERY ACT COMPLIANCE. The Company Subsidiary and Parent agreed to maintain take all necessary steps to apply for or seek to obtain prior to the Effective Time certain exemptions, waivers and agreements in effect connection with the severance plans applicable New Jersey Industrial Site Recovery Act for certain properties owned or leased by the Company in New Jersey. DESIGNATED BUSINESS. Xxxxxx's proposal to acquire the Company Employees as set forth in Section 5.1(h) was expressly conditioned upon, among other things, the Company divesting itself of the Designated Business prior to the consummation of any acquisition. In order to be in a position to satisfy this condition, on May 1, 2000, the Company Disclosure Schedule without entered into an Agreement and Plan of Merger (the "Subsidiary Agreement") providing for the disposal of the Designated Business through a merger of the Designated Business with a corporation owned by the acquiror of the Designated Business. In the Merger Agreement the Company has agreed to consummate such merger in accordance with the Subsidiary Agreement on or prior to the Acceptance Date. The Subsidiary Agreement, in turn, provides that such merger will occur concurrently with, and the Company's obligation to consummate the merger is subject to, the consummation of the Offer. Accordingly, in the event that the Offer is not consummated or the Merger Agreement is terminated for any amendment thereto that would reason, the Designated Business will not be adverse sold and will continue to participants. (d) No provision of this Section 6.9 shall create any third-party beneficiary rights be operated by the Company. The Designated Business is not, in any employee or former employee (including any beneficiary or dependent thereof) event, a material subsidiary of the Company or any Company Subsidiary in respect of continued employment (or resumed employment) with Parent, the Surviving Company or the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Program or any plan or arrangement which may be established by Parent, the Surviving Company or any of the Subsidiaries of ParentCompany.

Employee Benefit Arrangements. (a) For the one-year period immediately following the Effective Timepurposes of determining eligibility to participate, Parent vesting and entitlement to benefits where length of service is relevant under any benefit plan or arrangement of the Surviving Company shall provide Corporate Group after the Closing, each employee of the officers and employees (including those officers and employees who are full-time, part-time, temporary, on vacation or on a paid or unpaid leave of absence) of the Company and Group as of the Closing (collectively, the “Company Employees”) shall receive service credit for service with Surviving Corporate Group to the same extent such service credit was granted under the Company Subsidiaries who remain employed by ParentPlans, subject to offsets for previously accrued benefits and determined in a manner so as not to create any duplication of benefits. Buyer shall cause the Surviving Corporate Group to (i) waive all limitations as to preexisting conditions exclusions and waiting periods with respect to participation and coverage requirements applicable to Company or the Subsidiaries of Parent Employees under any welfare benefit plans that such employees may be eligible to participate in after the Effective Time (eachClosing, a “Covered Employee”) compensation and employee benefits in the aggregate other than limitations or waiting periods that are substantially similar to the compensation and employee benefits provided already in effect with respect to such Covered Employee immediately before employees and that have not been satisfied as of the Effective Time, excluding equity and equity based plans and awards of interests in the Operating Partnership provided by the Closing under any welfare benefit plan maintained for Company and the Company Subsidiaries, as the case may be, to each such Covered Employee Employees immediately prior to the Effective Time; provided, however, Closing and (ii) provide each Company Employee with credit for any co-payments and deductibles paid prior to the Closing in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans that nothing contained such employees are eligible to participate in this Section 6.9 (subject to Section 6.9(c)) or elsewhere in the Agreement (including Section 9.9 hereof) shall be construed to prevent, from and after the Effective TimeClosing. Buyer shall cause the Surviving Corporate Group to honor all vacation, personal and sick days accrued by Company Employees under the termination plans, policies, programs and arrangements of employment of any Covered Employee or the amendment or termination of any particular Employee Program in accordance with its terms. Notwithstanding anything in this Agreement Company Group immediately prior to the contrary, following the Effective Time, the employment of the Covered Employees who are covered by a collective bargaining agreement shall in all events be in accordance with the terms and conditions of such agreementsClosing. (b) All service credited From and after the Closing, Buyer shall cause the Surviving Corporate Group to each Covered Employee under assume and honor in accordance with their terms all employment, severance and termination plans and agreements (including change of control provisions) of employees or independent contractors of the Employee Programs by Surviving Corporate Group set forth in Section 5.16(a) of the Disclosure Schedule. Notwithstanding the foregoing, nothing herein shall be deemed or construed to prevent Buyer from exercising any power, authority or right that the Company through would have had prior to the Effective Time shall be recognized by Parent and the Surviving Company for all purposes, including for purposes of eligibility, vesting, benefit accruals (but excluding benefit accrual under any defined benefit pension plan) and level of benefits under any employee benefit plan provided by Parent and the Surviving Company. With Closing with respect to any welfare benefit plan established of the Company Plans, including the power to amend, terminate or maintained by Parent or the Surviving suspend any such Company for the benefit of Covered Employees Plan, in its sole and their eligible dependants, Parent and the Surviving Company shall waive any pre-existing condition exclusions, eligibility waiting periods, and evidence of insurability requirements (to the same extent such limitations, waiting periodsabsolute discretion, or evidence of insurability requirements would not have applied under the relevant Employee Program) and provide that any covered expenses incurred on or before the Effective Time in respect of the current plan year by Covered Employees (or any covered dependent of otherwise to take such an employee) shall be taken into account for purposes of satisfying action as is necessary to comply with applicable deductible, offset, coinsurance and maximum out-of-pocket provisions (or similar payment or limitations) after the Effective Time in respect of such current plan yearLaw. (c) Notwithstanding This Agreement shall inure exclusively to the benefit of and be binding upon the Parties hereto and their respective successors, assigns, executors and legal representatives. Nothing in this Section 7.9(c), express or implied, is intended to confer on any provision Person other than the Parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Section 6.9 to the contrary, for the one year period following the Effective Time, Parent shall cause the Surviving Corporation and each Company Subsidiary to maintain in effect the severance plans applicable to Company Employees as set forth in Section 5.1(h) of the Company Disclosure Schedule without any amendment thereto that would be adverse to participantsAgreement. (d) No provision of this Section 6.9 shall create any third-party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof) of the Company or any Company Subsidiary in respect of continued employment (or resumed employment) with Parent, the Surviving Company or the Subsidiaries of Parent and no provision of this Section 6.9 shall create such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Employee Program or any plan or arrangement which may be established by Parent, the Surviving Company or any of the Subsidiaries of Parent.