Common use of Employee Benefit Arrangements Clause in Contracts

Employee Benefit Arrangements. (a) Parent and MergerCo shall ensure that, except for those Person(s) set forth in Schedule 8.7(a) (the “Specified Persons”), all persons who were employed by the Company and its Subsidiaries immediately preceding the Closing Date, including those on vacation, leave of absence or disability (the “Company Employees”), will remain employed in a comparable position on and immediately after the Closing Date, at not less than the same base rate of pay. Neither Parent nor MergerCo shall, at any time prior to 180 days after the Closing Date, effectuate a “mass layoff” as that term is defined in WARN, or comparable conduct under any applicable state law, affecting in whole or in part any facility, site of employment, operating unit or employee of the Company or its Subsidiaries without complying fully with the requirements of WARN or such applicable state law. (b) For sixty (60) days immediately after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, in the Parent’s sole discretion, (i) continue the participation of employees of the Surviving Corporation and its Subsidiaries who remain employed after the Effective Time (the “Surviving Corporation Employees”) in the Benefit Plans (other than stock option plans) on the same terms as those in effect as of the Effective Time, (ii) transition such Surviving Corporation Employees to employee benefit plans within the meaning of ERISA § 3(3) and other programs and arrangements that are currently maintained, sponsored or contributed to by Parent or its Subsidiaries for the benefit of the similarly-situated employees, officers and directors of Parent and its Subsidiaries (the “Parent Benefit Plans”), or (iii) transition the Surviving Corporation Employees and Parent’s employees to new benefit plans that are substantially comparable to the Benefit Plans and/or the Parent Benefit Plans. (c) From and after the Closing, as applicable, Parent, MergerCo and the Surviving Corporation will honor in accordance with their terms all cash bonus plans, employment agreements, consulting agreements, change-of-control agreements and severance agreements set forth on Schedule 4.12, and on the Closing Date, Parent shall pay to the Specified Persons any amounts with respect severance payments that are payable to such Persons, other than the Severance Obligations, as a result of their termination of employment or other relationship with the Company or any of its Subsidiaries in connection with the Merger.

Employee Benefit Arrangements. (a) Parent The Company will not take any action which could prevent or impede the termination of the Stock Plans and MergerCo shall ensure thatany other plans, except programs or arrangements providing for those Person(s) set forth the issuance or grant of any other interest in Schedule 8.7(a) (respect of the “Specified Persons”), all persons who were employed by the Company and its Subsidiaries immediately preceding the Closing Date, including those on vacation, leave of absence or disability (the “Company Employees”), will remain employed in a comparable position on and immediately after the Closing Date, at not less than the same base rate of pay. Neither Parent nor MergerCo shall, at any time prior to 180 days after the Closing Date, effectuate a “mass layoff” as that term is defined in WARN, or comparable conduct under any applicable state law, affecting in whole or in part any facility, site of employment, operating unit or employee capital stock of the Company or its Subsidiaries without complying fully with any Subsidiary of the requirements of WARN or such applicable state law. (b) For sixty (60) days immediately after Company in each case effective prior to the Effective Time. The Company, Parent shallas instructed by Parent, and shall cause the Surviving Corporation to, in the Parent’s sole discretion, (i) continue the participation of employees of the Surviving Corporation and its Subsidiaries who remain employed after the Effective Time (the “Surviving Corporation Employees”) in the Benefit Plans (other than stock option plans) on the same terms as those in effect take all steps necessary or appropriate so that as of the Effective Time, each person who holds a Stock Option that is cancelled pursuant to Section 2.9(a) shall receive in substitution therefor, in accordance with the provisions of the Stock Plans, an incentive compensation award to replace such Stock Option (iia "Replacement Award"), on terms and conditions consistent with those set forth in Section 6.8 of the Company Disclosure Schedule, with such changes as the parties may mutually agree. (b) transition such Surviving Corporation Employees Subject to employee benefit plans within Section 6.8(c), Purchaser and the meaning of ERISA § 3(3) Company and its Subsidiaries shall honor, without modification, all contracts, agreements, collective bargaining agreements and other programs and arrangements commitments of the parties prior to the date hereof which apply to any current or former employee or current or former director of the Company or its Subsidiaries; provided, however, that are currently maintainedthis undertaking shall not prevent Parent, sponsored Purchaser or contributed the Company or its Subsidiaries from enforcing or complying with any such commitments in accordance with its terms, including, exercising any right permitted thereunder or under applicable law to amend, modify, suspend, revoke or terminate any such commitment in whole or in part. Any workforce reductions carried out following the Effective Time by Parent or its Subsidiaries for the benefit of the similarly-situated employees, officers and directors of Parent and its Subsidiaries (the “Parent Benefit Plans”), or (iii) transition the Surviving Corporation Employees and Parent’s employees to new benefit plans that are substantially comparable to the Benefit Plans and/or the Parent Benefit Plans. (c) From and after the Closing, as applicable, Parent, MergerCo and the Surviving Corporation will honor in accordance with their terms all cash bonus plans, employment agreements, consulting agreements, change-of-control agreements and severance agreements set forth on Schedule 4.12, and on the Closing Date, Parent shall pay to the Specified Persons any amounts with respect severance payments that are payable to such Persons, other than the Severance Obligations, as a result of their termination of employment or other relationship with the Company or any of its Subsidiaries with respect to employees of the Company and its Subsidiaries shall be carried out in connection accordance with all laws and regulations governing the employment relationship and termination thereof, including the Worker Adjustment and Retraining Notification Act and regulations promulgated thereunder and any analogous state or local law. (c) Each of the Company Employee Benefit Plans (other than the Stock Plans) in effect as of the date hereof shall be maintained in effect with respect to the employees or former employees of the Company and its Subsidiaries who are covered by any such Company Employee Benefit Plan immediately prior to the Effective Time (the "Affiliated Employees") until Parent, Purchaser or the Company or its Subsidiaries otherwise determines after the Effective Time; provided, however, that nothing herein contained shall limit any right contained in any such Company Employee Benefit Plan or under applicable law to amend, modify, suspend, revoke or terminate any such Company Employee Benefit Plan; and provided, further, however, that Parent, Purchaser or the Company or their Subsidiaries shall cause the Affiliated Employees to be provided with employee benefits for a period of not less than one year following the Effective Time which are no less favorable in the aggregate than those provided to similarly situated employees of Parent and its Affiliates. Without limiting the foregoing, with respect to any benefit plan established to replace any Company Employee Benefit Plan (other than the Stock Plans) (each such plan, a "New Plan"), each participant in any such Company Employee Benefit Plan shall receive credit for purposes of eligibility to participate and vesting under such New Plan for service credited for the corresponding purpose under such Company Employee Benefit Plan; provided, however, that such crediting of service shall not operate to duplicate any benefit to any such participant or the funding for any such benefit or cause any such Company Employee Benefit Plan or New Plan to fail to comply with the Mergerapplicable provisions of the Code or ERISA. (d) With respect to any New Plan which is a welfare benefit plan, other than limitations, exclusions or waiting periods that are already in effect with respect to Affiliated Employees and that have not been satisfied as of the Effective Time, such New Plan shall waive all limitations to pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements and provide each Affiliated Employee with full credit for co- payments and deductibles paid prior to the Effective Time in satisfying any applicable deductible or out-of-pocket requirements applicable to the same calendar year under such New Plan.

Employee Benefit Arrangements. (a) Parent and MergerCo shall ensure that, except for those Person(s) set forth in Schedule 8.7(a) (the “Specified Persons”), all persons who were employed by agrees that the Company will honor and, from and its Subsidiaries immediately preceding the Closing Date, including those on vacation, leave of absence or disability (the “Company Employees”), will remain employed in a comparable position on and immediately after the Closing Date, at not less than the same base rate of pay. Neither Parent nor MergerCo shall, at any time prior to 180 days after the Closing Date, effectuate a “mass layoff” as that term is defined in WARN, or comparable conduct under any applicable state law, affecting in whole or in part any facility, site of employment, operating unit or employee of the Company or its Subsidiaries without complying fully with the requirements of WARN or such applicable state law. (b) For sixty (60) days immediately after the Effective Time, Parent shallwill cause the Surviving Corporation to honor, all obligations under Employee Benefit Arrangements to which the Company and/or any of its subsidiaries is presently a party which are listed in Section 6.05 of the Company Disclosure Schedule. Notwithstanding the foregoing, from and after the Effective Time, subject to the remaining provisions of this Section 6.05, the Surviving Corporation shall have the right to amend, modify, alter or terminate any Employee Benefit Arrangements, provided that any such action shall not adversely affect the rights or benefits of any employees or other beneficiaries which shall have 32 arisen thereunder prior to such amendment, modification, alteration or termination, and shall not affect any rights or benefits for which the agreement of the other party or a beneficiary is required as a condition to any such amendment, modification, alteration or termination; and provided, further, that neither Parent nor any subsidiary of Parent (including without limitation the Surviving Corporation) shall at any time take any action to amend, modify, alter or terminate the CAPCO Automotive Products Corporation Directors Unfunded Deferred Fee Plan, as in effect on the date hereof, with respect to any individual who is a participant therein as of the date hereof, without that individual's written consent. Notwithstanding the foregoing, for a period of one year following the Effective Time, Parent shall cause the Surviving Corporation toto continue to provide to individuals who are employees of the Company and/or its subsidiaries immediately prior to the Effective Time (each, a "Company Employee" and collectively, the "Company Employees") Fringe Benefits (as hereinafter defined) which are in the Parent’s sole discretion, (i) continue aggregate no less favorable than those provided to such employees as of the participation of employees date hereof; provided that nothing in this sentence shall be deemed to limit or otherwise affect the right of the Surviving Corporation to terminate the employment or change the place of work, responsibilities, status or designation of any Company Employee or group of Company Employees as the Surviving Corporation may determine in the exercise of its business judgment and in compliance with the terms of any applicable employment or retainer agreement to which the Company and/or any of its Subsidiaries who remain employed subsidiaries is presently a party and which is listed in Section 6.05 of the Company Disclosure Schedule, and all applicable laws. For purposes of all Employee Benefit Arrangements (including without limitation plans or programs of Parent, the Surviving Corporation and other affiliates of Parent after the Effective Time (the “Surviving Corporation Employees”) in the Benefit Plans (other than stock option plans) on the same terms as those in effect as of the Effective Time, (ii) transition such Surviving Corporation Employees to employee benefit plans within the meaning of ERISA § 3(3) and other programs and arrangements that are currently maintained, sponsored or contributed to by Parent or its Subsidiaries for the benefit of the similarly-situated employees, officers and directors of Parent and its Subsidiaries (the “Parent Benefit Plans”), or (iii) transition the Surviving Corporation Employees and Parent’s employees to new benefit plans that are substantially comparable to the Benefit Plans and/or the Parent Benefit Plans. (c) From and after the Closing, as applicable, Parent, MergerCo and the Surviving Corporation will honor in accordance with their terms all cash bonus plans, employment agreements, consulting agreements, change-of-control agreements and severance agreements set forth on Schedule 4.12, and on the Closing Date, Parent shall pay to the Specified Persons any amounts with respect severance payments that are payable to such Persons, other than the Severance Obligations, as a result of their termination of employment or other relationship service with the Company or any of its Subsidiaries subsidiaries prior to the Effective Time shall be treated as service with Parent, the Surviving Corporation and other affiliates of Parent for purposes of eligibility and vesting thereunder, and Parent, the Surviving Corporation and the other affiliates of Parent shall cause all such Employee Benefit Arrangements (including without limitation plans or programs of Parent, the Surviving Corporation and the other affiliates of Parent after the Effective Time) in connection with which Company Employees participate for the Merger.first time after the Effective Time (x) to waive any pre-existing condition limitations otherwise applicable after the Effective Time to any Company Employee, and (y) to provide that any expenses incurred by Company Employees (and their dependents) during the calendar year of the Effective Time shall be taken into account for purposes of satisfying applicable deductible, coinsurance and maximum out-of-pocket

Employee Benefit Arrangements. (a) Parent On and MergerCo shall ensure that, except for those Person(s) set forth in Schedule 8.7(a) (the “Specified Persons”), all persons who were employed by the Company and its Subsidiaries immediately preceding the Closing Date, including those on vacation, leave of absence or disability (the “Company Employees”), will remain employed in a comparable position on and immediately after the Closing Date, at not less than the same base rate of pay. Neither Parent nor MergerCo shall, at any time prior to 180 days after the Closing Date, effectuate a “mass layoff” as that term is defined in WARN, or comparable conduct under any applicable state law, affecting in whole or in part any facility, site of employment, operating unit or employee of the Company or its Subsidiaries without complying fully with the requirements of WARN or such applicable state law. (b) For sixty (60) days immediately after the Effective Time, Parent shall, and shall cause Parent LP or the Surviving Corporation to, in the Parent’s sole discretion, (i) continue the participation of employees of the Surviving Corporation assume and its Subsidiaries who remain employed after the Effective Time (the “Surviving Corporation Employees”) in the Benefit Plans (other than stock option plans) on the same terms as those in effect as of the Effective Time, (ii) transition such Surviving Corporation Employees to employee benefit plans within the meaning of ERISA § 3(3) and other programs and arrangements that are currently maintained, sponsored or contributed to by Parent or its Subsidiaries for the benefit of the similarly-situated employees, officers and directors of Parent and its Subsidiaries (the “Parent Benefit Plans”), or (iii) transition the Surviving Corporation Employees and Parent’s employees to new benefit plans that are substantially comparable to the Benefit Plans and/or the Parent Benefit Plans. (c) From and after the Closing, as applicable, Parent, MergerCo and the Surviving Corporation will honor in accordance with their terms all cash bonus plansleasing commissions, employment agreements, consulting severance agreements, change-of-control retention bonus agreements and severance agreements set forth on Schedule 4.12bonus agreements, and all bonus, retention and severance obligations, of the Company or any Company Subsidiary, and the Company, Parent or Parent LP shall pay on the Closing Date or after the Closing Date when due to the applicable officers and employees of the Company or any Company Subsidiary any amounts with respect to such agreements and obligations that are payable by their terms on the Closing Date, upon consummation of the Merger, the Effective Time, or after the Closing Date when due. Company represents that all of such agreements and obligations have been set forth in Section 6.6(a) of the Company Disclosure Schedule; provided, however, that the leasing commissions shall accelerate and shall be paid prior to Closing. (b) Following the Effective Time, Parent and Parent LP shall pay cause the Surviving Corporation to provide compensation and employee benefits to the Specified Persons any amounts employees of the Company and the Company Subsidiaries who remain employed by Parent or the Parent Subsidiaries after the Effective Time (the "Company Employees") for such period of time as determined by Parent and Parent LP with respect severance payments that are payable the lesser of (i) at least the types and levels of employee benefits (including contribution levels) maintained from time to time by Parent, Parent LP or the Surviving Corporation for similarly-situated employees of Parent, Parent LP or the Surviving Corporation, (ii) at least the types and levels of employee benefits (including contribution levels) maintained from time to time by Company and the Company Subsidiaries for such Personsemployees, other than or (iii) some combination of the Severance Obligationsforegoing. Parent and Parent LP shall, as a result and shall cause the Surviving Corporation to, treat, and cause the applicable benefit plans to treat, the service of their termination of employment or other relationship Company Employees with the Company or the Company Subsidiaries attributable to any period before the Effective Time as service rendered to Parent, Parent LP or the Surviving Corporation (to the same extent as service with Parent, Parent LP or the Surviving Corporation is taken into account with respect to similarly situated employees of Parent, Parent LP or the Surviving Corporation) for purposes of eligibility to participate, vesting, paid time off accruals, and severance benefits, but not for purposes of determining the amount of benefits under any defined benefit plan. Without limiting the foregoing and subject to the next sentence, Parent and Parent LP shall not, and shall cause the Surviving Corporation to not, treat any Company Employee as a "new" employee for purposes of any exclusions under any health or similar plan of Parent, Parent LP or the Surviving Corporation for a pre-existing medical condition, and any deductibles and co-pays paid under any of the Company's or any of the Company Subsidiaries' health plans shall be credited towards deductibles and co-pays under the health plans of Parent, Parent LP or the Surviving Corporation. Parent and Parent LP shall use commercially reasonable efforts, and shall cause the Surviving Corporation to use commercially reasonable efforts, to make appropriate arrangements with its Subsidiaries insurance carrier(s) to ensure such results. (c) After the Effective Time, Parent and Parent LP shall cause the Surviving Corporation to honor all obligations which accrued prior to the Effective Time under the Company's supplemental retirement plans, management incentive plans, performance bonus plans and long-range incentive plans. Company represents that all of such agreements and obligations have been set forth in connection Section 6.6(c) of the Company Disclosure Schedule, and that all such accrued amounts have been reflected on the Company's balance sheet. (d) Prior to the Effective Time, the Company shall cease to be the sponsor of (and on or after the Effective Time the sponsor shall be an entity that is not required to be aggregated with the MergerSurviving Corporation under Code Sections 414(b), (c), (m) or (o)) the Wilmorite Property Management 401(k) Plan and shall fully and immediately vest participants in such plan to the extent required by Section 411(d)(3) of the Code. Parent shall cause a defined contribution plan that is intended to satisfy the requirements of Section 401(a) of the Code, and of which Parent or an Affiliate of Parent is the plan sponsor, to accept, if and to the extent so elected by each applicable Company Employee, a rollover (whether direct or indirect) of the account balances (including participant loans) of the Company Employees from the Wilmorite Property Management 401(k) Plan; provided, however, that (i) each electing Company Employee shall elect a rollover no later than 60 days after the date on which he or she receives the distribution of his or her account balance under the Wilmorite Property Management 401(k) Plan, (ii) all aspects of each rollover satisfy the requirements of Section 401(a)(31) of the Code, are consistent with the terms of such recipient defined contribution plan as in effect immediately prior to the Closing Date, and are effectuated in accordance with the established administrative practices and procedures of such plan, and (iii) under no circumstances shall any such rollover include any amount attributable to employee after-tax contributions or amounts otherwise not includible in taxable income. (e) Nothing in this Section 6.6 shall create any third party beneficiary rights in any employee or former employee (including any beneficiary or dependent thereof) of the Company, Company LP or any Company Subsidiary in respect of continued employment (or resumed employment) for any specified period of any nature or kind whatsoever.

Employee Benefit Arrangements. (a) Parent and MergerCo shall ensure thatThe Company will not ----------------------------- take any action which could prevent or impede the adjustment of the Stock Plans, except for those Person(s) set forth in Schedule 8.7(a) (the “Specified Persons”accordance with Section 2.9(a), all persons who were employed by and any other plans, programs or arrangements providing for the Company and its Subsidiaries immediately preceding issuance or grant of any other interest in respect of the Closing Date, including those on vacation, leave of absence or disability (the “Company Employees”), will remain employed in a comparable position on and immediately after the Closing Date, at not less than the same base rate of pay. Neither Parent nor MergerCo shall, at any time prior to 180 days after the Closing Date, effectuate a “mass layoff” as that term is defined in WARN, or comparable conduct under any applicable state law, affecting in whole or in part any facility, site of employment, operating unit or employee stock of the Company or its Subsidiaries without complying fully with any Subsidiary of the requirements of WARN or such applicable state law. (b) For sixty (60) days immediately after Company in each case effective prior to the Effective Time. The Company, Parent shallas instructed by Parent, and shall cause the Surviving Corporation to, in the Parent’s sole discretion, (i) continue the participation of employees of the Surviving Corporation and its Subsidiaries who remain employed after the Effective Time (the “Surviving Corporation Employees”) in the Benefit Plans (other than stock option plans) on the same terms as those in effect take all steps necessary or appropriate so that as of the Effective Time, (iieach person who holds a Stock Option that is adjusted pursuant to Section 2.9(a) transition such Surviving Corporation Employees to employee benefit plans within shall receive an amended award in accordance with the meaning of ERISA § 3(3) and other programs and arrangements that are currently maintained, sponsored or contributed to by Parent or its Subsidiaries for the benefit provisions of the similarly-situated employees, officers and directors of Parent and its Subsidiaries (the “Parent Benefit Plans”), or (iii) transition the Surviving Corporation Employees and Parent’s employees to new benefit plans that are substantially comparable to the Benefit Plans and/or the Parent Benefit Stock Plans. (cb) From Subject to Section 6.9(c), Purchaser and after the ClosingCompany and its Subsidiaries shall honor, as applicablewithout modification, all contracts, agreements, collective bargaining agreements and other commitments of the parties prior to the date hereof which apply to any current or former employee or current or former director of the Company or its Subsidiaries; provided, however, that this undertaking shall not prevent Parent, MergerCo and Purchaser or the Surviving Corporation will honor Company or its Subsidiaries from enforcing or complying with any such commitments in accordance with their terms all cash bonus plansits terms, employment agreementsincluding, consulting agreementsexercising any right permitted thereunder or under applicable law to amend, change-of-control agreements and severance agreements set forth on Schedule 4.12modify, and on suspend, revoke or terminate any such commitment in whole or in part. Any workforce reductions carried out following the Closing Date, Effective Time by Parent shall pay to the Specified Persons any amounts with respect severance payments that are payable to such Persons, other than the Severance Obligations, as a result of their termination of employment or other relationship with the Company or any of its Subsidiaries with respect to employees of the Company and its Subsidiaries shall be carried out in connection accordance with all laws and regulations governing the employment relationship and termination thereof, including the Worker Adjustment and Retraining Notification Act and regulations promulgated thereunder and any analogous state or local law. (c) Each of the Company Employee Benefit Plans in effect as of the date hereof shall be maintained in effect with respect to the employees or former employees of the Company and its Subsidiaries who are covered by any such Company Employee Benefit Plan immediately prior to the Effective Time (the "Affiliated Employees") until Parent, Purchaser or the Company or its -------------------- Subsidiaries otherwise determines after the Effective Time; provided, however, that nothing herein contained shall limit any right contained in any such Company Employee Benefit Plan or under applicable law to amend, modify, suspend, revoke or terminate any such Company Employee Benefit Plan; and provided, further, however, that Parent, Purchaser or the Company or their Subsidiaries shall cause the Affiliated Employees to be provided with employee benefits for a period of not less than one year following the Effective Time which are no less favorable in the aggregate than those provided to similarly situated employees of Parent and its Affiliates. Without limiting the foregoing, with respect to any benefit plan established to replace any Company Employee Benefit Plan (each such plan, a "New Plan"), each participant in any such Company Employee Benefit -------- Plan shall receive credit for purposes of eligibility to participate and vesting under such New Plan for service credited for the corresponding purpose under such Company Employee Benefit Plan; provided, however, that such crediting of service shall not operate to duplicate any benefit to any such participant or the funding for any such benefit or cause any such Company Employee Benefit Plan or New Plan to fail to comply with the Mergerapplicable provisions of the Code or ERISA. (d) With respect to any New Plan which is a welfare benefit plan, other than limitations, exclusions or waiting periods that are already in effect with respect to Affiliated Employees and that have not been satisfied as of the Effective Time, such New Plan shall waive all limitations to pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements and provide each Affiliated Employee with full credit for co-payments and deductibles paid prior to the Effective Time in satisfying any applicable deductible or out-of-pocket requirements applicable to the same calendar year under such New Plan.

Employee Benefit Arrangements. (a) Parent and MergerCo shall ensure that, except for those Person(s) set forth in Schedule 8.7(a) cause the ----------------------------- Company to honor 0 accrued obligations as of the date hereof under the employee arrangements (the “Specified Persons”)"Employee Arrangements") to which the Company or any of its Subsidiaries is presently a party which are listed in the Employee Arrangements Schedule and the Developments Schedule in accordance with the terms and conditions of such arrangement. In addition, all persons who were employed by 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, 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 such amendment, modification, alteration or termination. Parent shall cause the Company for a period of one year following the Effective Time, to continue to provide to employees of the Company and its Subsidiaries immediately preceding who are employed by the Closing Date, including 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 on vacation, leave of absence or disability (the “Company Employees”), will remain employed in a comparable position on and immediately after the Closing Date, at not less than the same base rate of pay. Neither Parent nor MergerCo shall, at any time prior provided to 180 days after the Closing Date, effectuate a “mass layoff” such employees as that term is defined in WARN, or comparable conduct under any applicable state law, affecting in whole or in part any facility, site of employment, operating unit or employee of the Company 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 Subsidiaries business judgment and in compliance with applicable laws. Solely for purposes of eligibility and vesting under Employee Arrangements (including without complying fully with the requirements limitation plans or programs of WARN or such applicable state law. (b) For sixty (60) days immediately Parent and its affiliates after the Effective Time, Parent shall), and shall cause the Surviving Corporation to, in the Parent’s sole discretion, (i) continue the participation of employees of the Surviving Corporation and its Subsidiaries who remain employed after the Effective Time (the “Surviving Corporation Employees”) in the Benefit Plans (other than stock option plans) on the same terms as those in effect as of the Effective Time, (ii) transition such Surviving Corporation Employees to employee benefit plans within the meaning of ERISA § 3(3) and other programs and arrangements that are currently maintained, sponsored or contributed to by Parent or its Subsidiaries for the benefit of the similarly-situated employees, officers and directors of Parent and its Subsidiaries (the “Parent Benefit Plans”), or (iii) transition the Surviving Corporation Employees and Parent’s employees to new benefit plans that are substantially comparable to the Benefit Plans and/or the Parent Benefit Plans. (c) From and after the Closingextent permitted by law, as applicable, Parent, MergerCo and the Surviving Corporation will honor in accordance with their terms all cash bonus plans, employment agreements, consulting agreements, change-of-control agreements and severance agreements set forth on Schedule 4.12, and on the Closing Date, Parent shall pay to the Specified Persons any amounts with respect severance payments that are payable to such Persons, other than the Severance Obligations, as a result of their termination of employment or other relationship service with the Company or any of its Subsidiaries in connection or their predecessors prior to the Effective Time shall be treated as service with Parent and its affiliates (to the Mergerextent such service was recognized by the Company or any of its Subsidiaries for similar purposes under comparable plans before the Effective Time).

Employee Benefit Arrangements. (a) Parent and MergerCo shall ensure thatDuring the Pre-Closing Period, except for those Person(s) set forth in Schedule 8.7(a) (to the “Specified Persons”), all persons who were employed extent reasonably requested by the Company and its Subsidiaries immediately preceding the Closing DateBuyer, including those on vacation, leave of absence or disability (the “Company Employees”), will remain employed in a comparable position on and immediately after the Closing Date, at not less than the same base rate of pay. Neither Parent nor MergerCo shall, at any time prior to 180 days after the Closing Date, effectuate a “mass layoff” as that term is defined in WARN, or comparable conduct under any applicable state law, affecting in whole or in part any facility, site of employment, operating unit or employee of the Company or its Subsidiaries without complying fully with the requirements of WARN or such applicable state lawshall use commercially reasonable efforts to[***]. (b) For sixty a period of twelve (6012) days immediately after months following the Effective TimeClosing Date (the “Continuation Period”), Parent Buyer shall, and or shall cause the Surviving Corporation to, in the Parent’s sole discretionprovide each Company Employee who is employed by Buyer, (i) continue the participation of employees of the Surviving Corporation and or any of its Subsidiaries who remain employed after respective Affiliates as of the day immediately following the Closing Date (each, a “Continuing Employee”) [***]; provided, that, for the avoidance of doubt, in no event shall this sentence prohibit Buyer, the Surviving Corporation or any their respective Affiliates from terminating any Continuing Employee following the Effective Time (the “Surviving Corporation Employees”) in the or amending any Benefit Plans (other than stock option plans) on the same terms as those in effect as Plan or benefit plan of the Effective TimeBuyer, (ii) transition such Surviving Corporation Employees to employee benefit plans within the meaning of ERISA § 3(3) and other programs and arrangements that are currently maintained, sponsored or contributed to by Parent or its Subsidiaries for the benefit of the similarly-situated employees, officers and directors of Parent and its Subsidiaries (the “Parent Benefit Plans”), or (iii) transition the Surviving Corporation Employees and Parent’s employees to new benefit plans that are substantially comparable to the Benefit Plans and/or the Parent Benefit Plansor its Affiliates in accordance with its terms. (c) From On and after the Closing, as applicable, Parent, MergerCo and the Surviving Corporation will honor in accordance with their terms all cash bonus plans, employment agreements, consulting agreements, change-of-control agreements and severance agreements set forth on Schedule 4.12, and on the Closing Date, Parent Buyer shall, or shall pay cause the Surviving Corporation to use commercially reasonable efforts to: [***]. (d) The Company and any ERISA Affiliate shall terminate, effective as of no later than the day immediately preceding the Closing Date, any and all Benefit Plans intended to include a Code Section 401(k) arrangement and any and all Benefit Plans intended to meet the requirements of Code Section 125 (each a “Terminated Benefit Plan”) (unless Buyer provides written notice to the Specified Persons Company no later than three (3) Business Days prior to the Closing Date that such arrangements shall not be terminated). The Company shall provide Buyer with evidence that such Terminated Benefit Plan(s) have been terminated (effective as of no later than the day immediately preceding the Closing Date) pursuant to resolutions of the board of directors of the Company or its ERISA Affiliate, as the case may be. The form and substance of such resolutions shall be subject to prior review and approval by Buyer. The Company and any amounts with respect severance payments ERISA Affiliate also shall take such other actions in furtherance of terminating such Terminated Benefit Plan(s) as Buyer may reasonably require. In the event that termination of any Terminated Benefit Plan would reasonably be anticipated to trigger liquidation charges, surrender charges, other fees or any other Liabilities, then such charges, fees and/or Liabilities shall be deemed to be a Company Transaction Expense, and the Company shall take such actions as are payable necessary to reasonably estimate the amount of such Personscharges and/or fees and provide such estimate in writing to Buyer. (e) [***]. (f) Nothing contained herein, express or implied, (i) shall create any third party rights in any Person other than the Severance ObligationsParties hereto, as a result including any current or former Service Provider (or any beneficiaries or dependents thereof), (ii) shall create any obligation on the part of their termination of employment the Buyer or other relationship with its Subsidiaries (or, following the Company Effective Time, the Surviving Corporation or any of its Subsidiaries in connection with Subsidiaries) to employ or engage any Service Provider for any period following the MergerEffective Time or (iii) shall establish or constitute an amendment to, termination or any other modification of any Benefit Plan or any benefit plan maintained by Buyer or its Affiliates.

Employee Benefit Arrangements. (a) Except for employees subject to collective bargaining agreements, until December 31, 2000, Parent shall maintain, or cause the Surviving Corporation to maintain compensation and MergerCo shall ensure that, except for employee benefits substantially equivalent in the aggregate to those Person(s) set forth in Schedule 8.7(a) (the “Specified Persons”), all persons who were employed provided by the Company and its Subsidiaries immediately preceding the Closing Date, including those on vacation, leave of absence or disability (the “Company Employees”), will remain employed in a comparable position on and immediately after the Closing Date, at not less than the same base rate of pay. Neither Parent nor MergerCo shall, at any time prior to 180 days after the Closing DateEffective Time (not taking into account equity-based incentive compensation provided by the Company). Parent agrees that, effectuate a “mass layoff” as that term is defined in WARN, or comparable conduct under any applicable state law, affecting in whole or in part any facility, site of employment, operating unit or employee of the Company or its Subsidiaries without complying fully with the requirements of WARN or such applicable state law. (b) For sixty (60) days immediately from and after the Effective Time, Parent shall, and shall will honor or will cause the Surviving Corporation toto honor, all obligations under the Listed Plans. Notwithstanding the foregoing, from and after the Effective Time, the Surviving Corporation shall have the right to amend, modify, alter or terminate any Plan to the extent the terms of such Plans permit such action; PROVIDED, HOWEVER, that for a period of no less than 12 months following the Effective Time, the Surviving Corporation shall neither terminate nor adversely amend or modify the Company's severance pay policy in effect as of April 1, 1999, other than with respect to requiring a binding waiver and release from the Parent’s sole discretionterminated employee prior to the payment of severance benefits. (b) Except for employees subject to collective bargaining agreements, for purposes of determining eligibility to participate, vesting and accrual or entitlement to benefits where length of service is relevant under any employee benefit plan of the Parent or the Surviving Corporation, the Employees shall receive service credit for service with the Company and any of its subsidiaries to the same extent such service credit was granted under the Plans, subject to offsets for previously accrued benefits and to no duplication of benefits (except that no such credit shall be applied for benefit accrual or entitlement purposes under defined benefit pension plans). Such employees shall also be given credit for any deductible or co-payment amounts paid in respect of the plan year in which the Effective Time occurs, to the extent that, following the Effective Time, they participate in any Parent Plan for which deductibles or co-payments are required. Parent agrees that it shall also cause each Parent Plan to waive (i) continue any pre-existing condition restriction which was waived under the participation terms of employees of any analogous Plan immediately prior to the Surviving Corporation and its Subsidiaries who remain employed Effective Time or (ii) waiting period limitation which would otherwise be applicable to an Employee on or after the Effective Time (to the “Surviving Corporation Employees”) in the Benefit Plans (other than stock option plans) on the same terms as those in effect as of extent such Employee had satisfied any similar waiting period limitation under an analogous Plan prior to the Effective Time, (ii) transition such Surviving Corporation Employees to employee benefit plans within the meaning of ERISA § 3(3) and other programs and arrangements that are currently maintained, sponsored or contributed to by Parent or its Subsidiaries for the benefit of the similarly-situated employees, officers and directors of Parent and its Subsidiaries (the “Parent Benefit Plans”), or (iii) transition the Surviving Corporation Employees and Parent’s employees to new benefit plans that are substantially comparable to the Benefit Plans and/or the Parent Benefit Plans. (c) From Parent hereby acknowledges and after agrees that consummation of the Closing, as applicable, Parent, MergerCo and the Surviving Corporation will honor in accordance with their terms all cash bonus plans, employment agreements, consulting agreements, change-of-control agreements and severance agreements set forth on Schedule 4.12, and on the Closing Date, Parent shall pay to the Specified Persons any amounts with respect severance payments that are payable to such Persons, other than the Severance Obligations, as transactions contemplated by this Agreement constitute a result "Change of their termination Control" of employment or other relationship with the Company or any for purposes of its Subsidiaries in connection with the MergerPlans.

Employee Benefit Arrangements. (ai) Parent Seller shall cause all group health plans that are US Plans and MergerCo under which Business Personnel and their beneficiaries are covered on the Closing Date to continue to cover such Business Personnel until 11:59 p.m., New York City time, on the last calendar day of -50- the month in which the Closing Date occurs (the "BENEFIT CUTOFF TIME"). As of the Benefit Cutoff Time, all Transferred Personnel shall ensure thatcease participation in all US Plans, except with respect to benefits accrued as of, or claims incurred on or prior to, such time. Purchaser shall bear all responsibility for those Person(sproviding to Transferred Personnel and their beneficiaries who are otherwise eligible under the terms of Purchaser's group health plans, coverage under a group health plan beginning as of the Benefit Cutoff Time. (ii) set forth Seller shall continue to maintain a "group health plan" (within the meaning of Section 4980B(g)(2) of the Code) until the date that Seller completes the winding up of its business. Seller shall provide Purchaser with written notice at least 30 days before Seller will cease to maintain a group health plan. Such notice will include such information regarding the individuals covered under Seller's group health plan as Purchaser may reasonably request in Schedule 8.7(aorder to permit Purchaser to comply with any obligations it might have under COBRA when Seller ceases to maintain the group health plan. (iii) Purchaser assumes no liability with respect to, and receives no right or interest in, any Controlled Group Benefit Plan. (iv) With respect to claims by Transferred Personnel and their beneficiaries and dependents for workers' compensation or for the “Specified Persons”type of benefits described in Section 3(1) of ERISA (whether or not covered by ERISA), all persons who were employed by the Company (i) Seller shall assume and its Subsidiaries immediately preceding be responsible for such claims that are incurred on or prior to the Closing Date, including those on vacation, leave of absence or disability ; and (the “Company Employees”), will remain employed in a comparable position on ii) Purchaser shall assume and immediately be responsible for such claims that are incurred after the Closing Date. For purposes of the foregoing, at a medical/dental claim shall be considered incurred when the medical services are rendered or medical supplies are provided, and not less than when the same base rate of pay. Neither Parent nor MergerCo shall, at any time condition arose; provided that claims relating to a hospital confinement that commences on or prior to 180 days after the Closing Date but continuing thereafter shall be treated as incurred on or prior to the Closing Date. A disability or workers' compensation claim shall be considered incurred on or prior to the Closing Date if the injury or condition giving rise to the claim occurred on or prior to the Closing Date. (v) Seller shall not offer to any Business Personnel healthcare flexible spending account coverage for 2007. (vi) Seller shall be responsible for satisfying any and all obligations and liabilities under the continuation coverage provisions of the CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT OF 1985, effectuate a “mass layoff” as that term is defined in WARNamended ("COBRA"), or comparable conduct under and any applicable state law, affecting in whole Law to provide continuation coverage to or in part with respect to all employees or former employees of Seller and Healthcare Sub and their beneficiaries as a result of any facility, site of employment, operating unit "qualifying event" occurring prior to the Closing or employee as a result of the Company transactions contemplated by this Agreement. Seller shall not take any action or its Subsidiaries without complying fully cause any action to be taken that would trigger liability to Purchaser with the requirements of WARN or such applicable state law. (b) For sixty (60) days immediately after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, in the Parent’s sole discretion, (i) continue the participation of employees of the Surviving Corporation and its Subsidiaries who remain employed after the Effective Time (the “Surviving Corporation Employees”) in the Benefit Plans (other than stock option plans) on the same terms as those in effect as of the Effective Time, (ii) transition such Surviving Corporation Employees respect to employee benefit plans any M&A qualified beneficiary within the meaning of ERISA § 3(3) and other programs and arrangements that are currently maintained, sponsored or contributed to by Parent or its Subsidiaries for the benefit Section 54.4980B-9 of the similarly-situated employees, officers and directors Treasury Regulations of Parent and its Subsidiaries (the “Parent Benefit Plans”), or (iii) transition the Surviving Corporation Employees and Parent’s employees to new benefit plans that are substantially comparable to the Benefit Plans and/or the Parent Benefit PlansCode. (cvii) From Purchaser will absorb all accrued but unpaid vacation pay for all Transferred Personnel up to forty hours per Transferred Person. All bonuses due to employees to be paid in the year of closing shall be prorated between Seller and after the Closing, Purchaser as applicable, Parent, MergerCo and the Surviving Corporation will honor in accordance with their terms all cash bonus plans, employment agreements, consulting agreements, change-of-control agreements and severance agreements set forth on Schedule 4.12, and on of the Closing Date, Parent shall pay Date with the Seller being responsible for the fraction of such bonus equal to the Specified Persons any amounts number of days from the first day of the calendar year in which the Closing Date occurs to the Closing Date divided by 365. Any severance pay due to Transferred Personnel who are subsequently terminated by the Purchaser shall be payable by the Purchaser. All bonuses paid or payable to Transferred Personnel with respect severance payments that are payable to such Persons, other than the Severance Obligations, as a result of their termination of employment or other relationship with the Company or any of its Subsidiaries in connection with the Merger2006 shall be paid by Seller.

Employee Benefit Arrangements. (a) Parent and MergerCo Purchaser shall ensure that, except for those Person(s) set forth in Schedule 8.7(a) (the “Specified Persons”), that all persons Persons who were employed by the Company and its Subsidiaries Companies immediately preceding the Closing DateClosing, including those on vacation, leave of absence or disability leave (the “Company Employees”), will remain employed in a comparable position on and immediately after the Closing Date, at not less than the same base rate of paysalary, wages or commissions (as applicable). Neither Parent nor MergerCo shallPurchaser shall not, at any time prior to 180 days after the Closing Date, directly or indirectly, effectuate a “mass layoff” as that term is defined in WARN, or comparable conduct under any applicable state lawLaw, affecting in whole or in part any facility, site of employment, operating unit or employee of the Company or its Subsidiaries Companies without complying fully with the requirements of WARN or such applicable state lawLaw. (b) For sixty a period of one (601) days year from the Closing, Purchaser shall provide employee benefit and compensation plans, programs and arrangements for the Company Employees that are either (1) substantially similar in the aggregate to the employee benefit and compensation plans, programs and arrangements provided to similarly situated employees of the Purchaser, or (2) substantially similar in the aggregate to the employee benefit and compensation plans, programs and arrangements provided to the Company Employees immediately after prior to the Effective Time, Parent shallClosing, and shall cause the Surviving Corporation to, in the Parent’s sole discretion, (i) continue the participation of employees of the Surviving Corporation and its Subsidiaries who remain employed after the Effective Time (the “Surviving Corporation Employees”) in the Benefit Plans (other than stock option plans) on the same terms as those in effect as of the Effective Time, (ii) transition use commercially reasonable efforts to ensure that such Surviving Corporation Employees to employee benefit and compensation plans within count employment with the meaning of ERISA § 3(3) and other programs and arrangements that are currently maintained, sponsored or contributed to by Parent or its Subsidiaries for the benefit of the similarly-situated employees, officers and directors of Parent and its Subsidiaries (the “Parent Benefit Plans”), or (iii) transition the Surviving Corporation Employees and Parent’s employees to new benefit plans that are substantially comparable Companies prior to the Benefit Plans and/or Closing as service for all purposes including without limitation eligibility, vesting and accrual of benefits; provided that the Parent Benefit Plansforegoing shall not require any duplication of benefits. (c) From Purchaser acknowledges that from and after the Closing, Purchaser shall assume and fulfill all of the Companies’ obligations with respect to the Company Benefit Plans. Notwithstanding the foregoing, no provisions of this Section 8.9 shall (i) create any rights or interest, except as applicableamong the parties to this Agreement, Parentand no former, MergerCo present or future employees of any such party or its affiliates (or any dependents of such individuals) will be treated as third-party beneficiaries in or under the provisions of this Section 8.9; and (ii) limit the Surviving Corporation will honor right of the Purchaser to amend, modify or terminate any Company Benefit Plans, in accordance with their the terms all cash bonus plans, employment agreements, consulting agreements, change-of-control agreements and severance agreements set forth on Schedule 4.12, and on the Closing Date, Parent shall pay to the Specified Persons any amounts with respect severance payments that are payable to such Persons, other than the Severance Obligations, as a result of their termination of employment or other relationship with the Company or any of its Subsidiaries in connection with the Mergerthereof.

Employee Benefit Arrangements. (a) Parent and MergerCo shall ensure that, except for those Person(s) as set forth in Schedule 8.7(a) (the “Specified Persons”7.9(a), all persons who were employed by the Company and its Subsidiaries immediately preceding the Closing Date, including those on vacation, leave of absence or disability (the “"Company Employees”"), will remain be employed in a comparable position on and by the Company as an at-will employee immediately after the Closing Date, at not less than the same base rate of pay. Neither Parent nor MergerCo shall, at any time pay in effect for such employee immediately prior to 180 the Closing Date; provided that such Company Employee executes Parent's form of Agreement Relating to Confidential Information, Intellectual Property and Additional Covenants and agrees to be bound by the Parent Code of Conduct and Corporate Policies applicable to all employees of Parent. During the period commencing on the date of this Agreement through the Closing, neither the Company nor any of its Subsidiaries shall effectuate a "mass layoff" or "plant closing" within the meaning of WARN or any similar foreign, state or local law affecting any site of employment or facility of the Company or any of its Subsidiaries. Within five (5) business days prior to the Closing, the Company shall provide Parent with a list setting forth the number of employees terminated from each site of employment of the Company and each of its Subsidiaries during the 90-day period ending on the Closing Date for reasons qualifying as an "employment loss" under WARN or any similar foreign, state or local law, and the date of each such termination. For a period of 90 days after the Closing DateClosing, Parent shall not cause the Company to effectuate a “"mass layoff” " as that term is defined in WARN, or comparable conduct under any applicable foreign, state or local law, affecting in whole or in part any facility, site of employment, operating unit or employee of the Company or any of its Subsidiaries without complying fully with the requirements of WARN or such applicable state lawother Applicable Law. (b) For sixty (60) days immediately after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, in the Parent’s sole discretion, (i) continue the participation of employees of the Surviving Corporation and its Subsidiaries who remain employed after the Effective Time (the “Surviving Corporation Employees”) in the Benefit Plans (other than stock option plans) on the same terms as those in effect as of the Effective Time, (ii) transition such Surviving Corporation Employees to employee benefit plans within the meaning of ERISA § 3(3) and other programs and arrangements that are currently maintained, sponsored or contributed to by Parent or its Subsidiaries for the benefit of the similarly-situated employees, officers and directors Each of Parent and its Subsidiaries MergerCo acknowledges that consummation of the transactions contemplated by this Agreement will constitute a change in control of the Company (the “Parent Benefit Plans”), or (iii) transition the Surviving Corporation Employees and Parent’s employees to new benefit plans that are substantially comparable to the Benefit Plans and/or extent such concept is applicable) for purposes of the Parent Benefit Company Plans. (c) . From and after the Closing, as applicable, Parent, MergerCo and the Surviving Corporation will honor in accordance with their terms all cash bonus plans, stock option and stock incentive plans, employment agreements, consulting agreements, change-of-control agreements and severance agreements set forth on Schedule 4.12or other plans between the Company and its Subsidiaries and any officer, director or employee of the Company or such Subsidiary in effect prior to the Closing Date. Notwithstanding the foregoing, no provision of this Agreement shall be deemed to (i) guarantee employment for any period of time for, or preclude the ability of Parent or any affiliate to terminate the employment or service of any Company Employee for any reason or (ii) require Parent or any affiliate to continue any Company Plan or prevent the amendment, modification or termination thereof after the Closing Date. (c) For a period of six (6) months following the Effective Time, Parent shall, and on shall cause the Surviving Corporation to, continue to provide Company Employees with employee benefits, programs and arrangements (other than deferred compensation plans or equity plans) that are no less favorable in the aggregate than either (i) those in effect for Company Employees immediately preceding the Effective Time or (ii) those provided to similarly situated employees by Parent, as determined in Parent's sole discretion. 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 Corporation to, treat, and cause the applicable benefit plans to treat, the service of Company Employees with the Company or the Subsidiaries of the Company attributable to any period before the Effective Time as service rendered to Parent or the Surviving Corporation for purposes of eligibility to participate, vesting and for other appropriate purposes, including, but not limited to, applicability of minimum waiting periods for participation, excluding for these purposes benefit accrual under any defined benefit pension plan. Without limiting the foregoing, Parent shall not, and shall cause the Surviving Corporation not to, treat any Company 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 medical condition, and any deductibles and co-pays paid under any of the Company's or any of the Subsidiaries' health plans shall be credited towards deductibles and co-pays under the health plans of Parent or the Surviving Corporation, other than limitation or waiting periods that are already in effect with respect to such Company Employee and have not been satisfied as of the Closing Date and to the extent such co-payments and deductibles would be credited under any Company Plan. Parent shall, and shall cause the Surviving Corporation, to make appropriate arrangements with its insurance carrier(s) to ensure such results. (d) Within 5 Business Days after the date hereof, the Company shall deliver to Parent a schedule ("Schedule 7.9(d)") setting forth, with respect to each employee of the Company and its Subsidiaries that will exercise or cash out Options pursuant to Section 2.2, (i) such employee's estimated compensation subject to social security taxes for calendar year 2006, (ii) the portion of such compensation projected to have been paid to such employee as of the Closing Date, and (iii) the estimated amount of such employee's proceeds from the exercise or cash out of the Options pursuant to Section 2.2 , such Schedule 7.9(d) to be reasonably acceptable to Parent Such Schedule 7.9(d) shall pay to be revised as necessary as part of the Specified Persons any amounts with respect severance payments that are payable to such Persons, other than determination of the Severance Obligations, as a result amount of their termination of employment or other relationship with the Company or any of its Subsidiaries in connection with the MergerNet Working Capital.