Common use of Employee Benefit Plan Matters Clause in Contracts

Employee Benefit Plan Matters. As of and subsequent to the Effective Time, Parent shall: (a) cause the Surviving Corporation to assume and honor the Management Retention Agreements, employee bonus plans and other retention plans and agreements listed in Section 7.05(a) of the Company Disclosure Schedule; (b) for a period of twelve months following the Effective Time, Parent shall or shall cause the Surviving Corporation to either (i) provide the employees of the Company and its Subsidiaries who are employed immediately prior to the Effective Time (the “Covered Employees”) who remain employed during such period by Parent, the Surviving Corporation or any of their respective Subsidiaries with base pay and benefits (excluding equity based compensation) which are substantially comparable, in the aggregate, to the base pay and benefits provided by the Company and its Subsidiaries as of the date hereof or (ii) provide or cause the Surviving Corporation to provide Covered Employees who remain employed during such period by Parent, the Surviving Corporation or their respective Subsidiaries with base pay and benefits (excluding equity based compensation) that are substantially comparable, in the aggregate, to those provided to similarly situated employees of Parent and its Subsidiaries; (c) provide all Covered Employees with service credit for purposes of vacation accruals, and for eligibility, participation and vesting in any 401(k) plan of Parent or any of its Subsidiaries for all periods of continuous employment with the Company or its Subsidiaries (or any predecessor entities) prior to the Effective Time, and with Parent, the Surviving Corporation and any of their Subsidiaries or Affiliates on and after the Effective Time; and (d) to the extent permitted by the applicable Parent employee benefit plan, cause any pre-existing conditions or limitations, eligibility waiting periods or required physical examinations under any Parent employee benefit plan to be waived with respect to the Covered Employees and their eligible dependents, to the extent waived under the corresponding plan in which the applicable Covered Employee participated immediately prior to the Effective Time. For the period commencing at the Effective Time and ending on the first anniversary thereof, Parent shall, and shall cause its Subsidiaries to, honor in accordance with their terms as in effect immediately prior to the Effective Time the severance plans maintained by the Company, or any of its Subsidiaries. Unused vacation days accrued by Continuing Employees under the plans and policies of the Company and its Subsidiaries shall carry over to Parent or the Surviving Corporation to the extent administratively practicable, and each such Continuing Employee shall be paid by the Company in cash for any accrued and unused vacation days that Parent determines are not administratively practicable to continue to honor. Nothing in this Section 7.05 is intended to create any third-party beneficiaries to this Agreement. Notwithstanding anything in this Agreement to the contrary, 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 the Surviving Corporation to terminate the employment of, any Covered Employee following the Effective Time or (ii) require the Surviving Corporation to continue any Company Employee Plan or prevent the amendment, modification or termination thereof after the Effective Time in each case in accordance with the terms of such Company Employee Plan. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be construed as an amendment of any employee benefit plan or policy of the Company, the Parent or any of their respective Affiliates.

Employee Benefit Plan Matters. (a) As of and subsequent to the Effective Time, Parent shall: (ai) cause the Surviving Corporation to assume and honor the Management Retention Agreements, employee bonus plans, change in control and severance plans and agreements and other retention plans and agreements listed in Section 7.05(a4.17(a) of the Company Disclosure Schedule; provided that nothing herein shall prohibit Parent from amending, suspending or terminating any such plan or arrangement to the extent permitted by its terms and Applicable Law; (bii) for a period of not less than twelve (12) months following after the Effective Time, Parent shall or shall cause the Surviving Corporation to either (i) provide the employees of the Company and or its Subsidiaries who are employed as of immediately prior to the Effective Time during the period they continue to be employed by Parent, the Surviving Corporation and/or its Subsidiaries on and after the Effective Time (the “Covered Employees”) who remain employed during such period by Parentbase compensation, incentive opportunities (other than equity incentive compensation opportunities, which in all cases will be consistent with the Surviving Corporation or any of their respective Subsidiaries with base pay opportunities, policies and benefits (excluding equity based compensation) which are substantially comparable, in the aggregate, to the base pay and benefits provided by the Company and its Subsidiaries as of the date hereof or (ii) provide or cause the Surviving Corporation to provide Covered Employees who remain employed during such period by Parent, the Surviving Corporation or their respective Subsidiaries with base pay and benefits (excluding equity based compensation) that are substantially comparable, in the aggregate, to those provided plans applicable to similarly situated employees of Parent and its Subsidiaries), severance (based on severance arrangements as in effect on the date of this Agreement and listed on Section 4.17(a) of the Company Disclosure Schedule) and employee benefits (including retirement, group health, life, disability, vacation and severance plans) that are not less favorable in the aggregate to each Covered Employee than were provided by the Company or its Subsidiaries to such Covered Employee immediately prior to the Effective Time; (ciii) provide all Covered Employees with service credit for purposes of vacation accruals, and for eligibility, participation participation, vesting and vesting in levels of benefits under any 401(k) plan of employee benefit or compensation plan, program or arrangement adopted, maintained or contributed to by Parent or any of its the Surviving Corporation and/or their Subsidiaries in which Covered Employees are eligible to participate (the “Parent Plans”) for all periods of continuous employment with the Company or its Subsidiaries (or any predecessor entities) prior to the Effective Time to the same extent as such Covered Employee was entitled, before the Effective Time, to credit for such service under any similar Employee Plan in which such Covered Employee participated or was eligible to participate immediately prior to the Effective Time, and with Parent, the Surviving Corporation and any of their Subsidiaries or Affiliates on and after the Effective Time; provided that the foregoing shall not apply (A) for any purpose under any defined benefit pension plan or retiree welfare plan, (B) for purposes of any Parent Plan under which similarly-situated employees of Parent and its Subsidiaries do not receive credit for prior service, (dC) for purposes of any Parent Plan that is grandfathered or frozen, either with respect to level of benefits or participation or (D) to the extent permitted by that its application would result in a duplication of benefits with respect to the applicable Parent employee benefit plan, same period of service; (iv) use commercially reasonable efforts to cause any pre-existing conditions or limitations, eligibility waiting periods or required physical examinations under any Parent employee benefit plan Plan to be waived with respect to the Covered Employees and their eligible dependents, to the extent waived under the corresponding plan in which the applicable Covered Employee participated immediately prior to the Effective Time. For ; and (v) use commercially reasonable efforts to give the period commencing at Covered Employees and their eligible dependents credit for the plan year in which the Effective Time (or commencement of participation in a plan of Parent or the Surviving Corporation) occurs towards applicable deductibles and ending on the first anniversary thereof, Parent shall, and shall cause its Subsidiaries to, honor in accordance with their terms as in effect immediately annual out-of-pocket limits for expenses incurred prior to the Effective Time the severance plans maintained by the Company, or any of its Subsidiaries. Unused vacation days accrued by Continuing Employees under the plans and policies of the Company and its Subsidiaries shall carry over to Parent (or the Surviving Corporation to the extent administratively practicable, and each such Continuing Employee shall be paid by the Company date of commencement of participation in cash for any accrued and unused vacation days that Parent determines are not administratively practicable to continue to honor. Nothing in this Section 7.05 is intended to create any third-party beneficiaries to this Agreement. Notwithstanding anything in this Agreement to the contrary, 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 the Surviving Corporation to terminate the employment of, any Covered Employee following the Effective Time or (ii) require the Surviving Corporation to continue any Company Employee Plan or prevent the amendment, modification or termination thereof after the Effective Time in each case in accordance with the terms of such Company Employee Plan. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be construed as an amendment of any employee benefit plan or policy of the Company, the Parent or any of their respective Affiliates).

Employee Benefit Plan Matters. As of and subsequent With respect to the Effective Time, Parent shall: (a) cause the Surviving Corporation to assume and honor the Management Retention Agreements, employee bonus plans and other retention plans and agreements listed in Section 7.05(a) of the Company Disclosure Schedule; (b) for a period of twelve months following the Effective Time, Parent shall or shall cause the Surviving Corporation to either (i) provide the employees of the Company and or its Subsidiaries immediately before the Effective Time who are employed continue employment with Parent, the Surviving Corporation or any Subsidiary of Parent or the Surviving Corporation immediately prior to following the Effective Time (the “Covered Continuing Employees”), Parent shall cause the service of each such Continuing Employee to be recognized for purposes of eligibility to participate, levels of benefits (but not for benefit accruals under any defined benefit pension plan) who remain employed during such period by and vesting under each compensation, retirement, vacation, fringe or other welfare benefit plan, program or arrangement of Parent, the Surviving Corporation or any of their respective Subsidiaries Subsidiaries, but not including any defined benefit pension, nonqualified deferred compensation, post-termination welfare or equity-based compensation plans, programs, agreements or arrangements in which any Continuing Employee is or becomes eligible to participate in the year in which the Effective Time occurs (collectively, the “Parent Benefit Plans”), but solely to the extent service was credited to such employee for such purposes under a comparable Company Employee Plan immediately prior to the Closing Date and to the extent such credit would not result in a duplication of benefits or compensation. For a period of not less than twelve (12) months after the Closing Date (or, if earlier, until the termination of employment of the relevant employee), Parent shall provide or cause to be provided each Continuing Employee with (i) (A) base pay salary or base hourly rate and (B) cash incentive compensation opportunities, in each case in an amount at least equal to the same level that was provided to each such Continuing Employee immediately prior to the Closing Date, and (ii) additional cash or equity incentives comparable to each such Continuing Employee’s level of equity compensation prior to the Closing Date, and (iii) employee benefits (excluding equity based compensation) which are substantially comparableother than equity-based, in the aggregatedefined benefit pension, post-termination welfare or nonqualified deferred compensation benefits, except to the base pay and benefits extent provided by the Company and its Subsidiaries for in any agreements or arrangements existing as of the date hereof hereof) that are substantially similar in the aggregate to those provided to each such Continuing Employee immediately prior to the Closing Date under the Company Employee Plans set forth in Section 4.16 of the Company Disclosure Schedule. In addition and notwithstanding the foregoing, Parent acknowledges that the Surviving Corporation shall assume liability for the obligations set forth on Schedule 6.07(b), including the Company’s Amended and Restated Change of Control Plan and the other Company employee arrangements and benefits enumerated thereon (which Contracts listed thereon are assumed by operation of Applicable Law), and shall honor and comply with the requirements of such obligations in accordance with their applicable terms. With respect to each Parent Benefit Plan that is a health benefit plan in which any Continuing Employee is or (ii) provide becomes eligible to participate in the plan year in which the Effective Time occurs, Parent shall use or cause the Surviving Corporation to provide Covered Employees who remain employed during such period by Parent, the Surviving Corporation or their respective Subsidiaries with base pay and benefits (excluding equity based compensation) that are substantially comparable, in the aggregate, to those provided to similarly situated employees of Parent and its Subsidiaries; (c) provide all Covered Employees with service credit for purposes of vacation accruals, and for eligibility, participation and vesting in any 401(k) plan of Parent or any of its Subsidiaries for all periods of continuous employment with the Company or its Subsidiaries (or any predecessor entities) prior to the Effective Time, and with Parent, the Surviving Corporation and any of their Subsidiaries or Affiliates on and after the Effective Time; and (d) to the extent permitted by the applicable Parent employee benefit plan, cause any pre-existing conditions or limitations, eligibility waiting periods or required physical examinations under any Parent employee benefit plan to be waived with respect to the Covered Employees and their eligible dependents, to the extent waived under the corresponding plan in which the applicable Covered Employee participated immediately prior to the Effective Time. For the period commencing at the Effective Time and ending on the first anniversary thereof, Parent shall, and shall cause its Subsidiaries to, honor in accordance with their terms as in effect immediately prior to the Effective Time the severance plans maintained by the Company, or any of its Subsidiaries. Unused vacation days accrued by Continuing Employees under the plans and policies of the Company and its Subsidiaries shall carry over to Parent or the Surviving Corporation to the extent administratively practicable, and each such Continuing Employee shall be paid by the Company in cash for any accrued and unused vacation days that Parent determines are not administratively practicable to continue to honor. Nothing in this Section 7.05 is intended to create any third-party beneficiaries to this Agreement. Notwithstanding anything in this Agreement to the contrary, no provision of this Agreement shall be deemed to (i) guarantee employment for any period of time for, or preclude the ability Subsidiary of Parent or the Surviving Corporation to terminate the employment of, any Covered Employee following the Effective Time or use commercially reasonable efforts to cause each such Parent Benefit Plan to (iii) require the Surviving Corporation waive all limitations as to continue any Company Employee Plan or prevent the amendment, modification or termination thereof after the Effective Time in each case in accordance with the terms of such Company Employee Plan. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be construed as an amendment of any employee benefit plan or policy of the Company, the Parent or any of their respective Affiliates.pre-

Employee Benefit Plan Matters. As of and subsequent to the Effective Time, Parent shall: (a) cause the Surviving Corporation to assume and honor the Management Retention Agreements, employee bonus plans and other retention plans and agreements listed in Section 7.05(a) Effective as of the Company Disclosure Schedule; (b) Effective Time and for a period of twelve months following the Effective Timeone (1) year thereafter, Parent shall provide, or shall cause the Surviving Corporation to either provide, to each employee of the Company who continues to be employed by the Company or the Surviving Corporation (the “Affected Employees”), (i) provide a base salary or regular hourly wage, whichever is applicable, and bonus opportunities and sales and service incentive award compensation opportunities (excluding all equity-based compensation) that are substantially comparable in the employees of aggregate to what was provided to such Affected Employee by the Company immediately prior to the Effective Time and its Subsidiaries who are employed (ii) employee benefits (excluding severance, retention, change in control, transaction bonus, and defined benefit pension benefits and retiree health and welfare benefits) that are, in the aggregate, substantially comparable to those provided to such Affected Employee (including all dependents) by the Company immediately prior to the Effective Time (the “Covered Employees”) who remain employed during such period by Parentexcluding severance, the Surviving Corporation or any of their respective Subsidiaries with base pay retention, change in control, transaction bonus, and defined benefit pension benefits (excluding equity based compensation) which are substantially comparable, in the aggregate, to the base pay and benefits provided by the Company retiree health and its Subsidiaries welfare benefits). Effective as of the date hereof Effective Time and thereafter, Parent shall provide, or (ii) provide or shall cause the Surviving Corporation to provide Covered Employees who remain employed during such period by Parentprovide, the Surviving Corporation or their respective Subsidiaries with base pay and benefits (excluding equity based compensation) that are substantially comparable, in the aggregate, to those provided to similarly situated employees of Parent and its Subsidiaries; (c) provide all Covered Employees with service credit for purposes of vacation accruals, and for eligibility, participation and vesting in any 401(k) plan of Parent or any of its Subsidiaries for all periods of continuous employment with the Company (including, without limitation, any current or its Subsidiaries (former Affiliate of the Company or any predecessor entitiesof the Company) prior to and any other periods of service recognized under any Company Benefit Plan shall be taken into account for purposes of determining, as applicable, the Effective Timeeligibility for participation of each Affected Employee in, the vesting of rights and benefits by each Affected Employee under, and with Parentthe determination of level or amount of benefits payable to or accrued by each Affected Employee under all employee benefit plans maintained or contributed to by Parent or an Affiliate of Parent for the benefit of the Affected Employees, the Surviving Corporation other than defined benefit pension plans, severance plans and any of their Subsidiaries or Affiliates on retiree health and after the Effective Timewelfare plans; and (d) provided, that no such service credit shall be recognized to the extent permitted by the applicable Parent employee benefit plan, cause any pre-existing conditions or limitations, eligibility waiting periods or required physical examinations under any Parent employee benefit plan to be waived that it would result in a duplication of benefits with respect to the Covered Employees and their eligible dependents, to the extent waived under the corresponding plan in which the applicable Covered Employee participated immediately prior to the same period of services. Effective Time. For the period commencing at as of the Effective Time and ending on the first anniversary thereofthereafter, Parent shall, and shall cause its Subsidiaries the Surviving Corporation to, honor use commercially reasonable efforts to (x) reduce any period of limitation on health benefits coverage of Affected Employees due to pre-existing conditions (or actively at work or similar requirements) under the applicable health benefits plan of Parent or an Affiliate of Parent, (y) waive any and all eligibility waiting periods and evidence of insurability requirements with respect to such Affected Employees to the extent that any applicable eligibility waiting periods or evidence of insurability requirements under similar health benefit plans were waived or satisfied (or deemed to be satisfied) with respect to the Affected Employees under such health benefit plans and (z) credit each Affected Employee with all deductible payments, co-payments, and other out-of-pocket payments paid by such employee under the health benefit plans of the Company or its Affiliates prior to the Closing Date during the year in accordance with their terms as in effect which the Closing occurs for the purpose of determining the extent to which any such employee has satisfied his or her deductible and whether he or she has reached the out-of-pocket maximum under any health benefit plan of Parent or an Affiliate of Parent for such year. Neither the Merger nor any other transaction contemplated hereby shall affect any Affected Employee’s accrual of, or right to take, any accrued but unused personal, sick or vacation policies applicable to such Affected Employee immediately prior to the Effective Time the severance plans maintained by the Company, or any of its Subsidiaries. Unused vacation days accrued by Continuing Employees under the plans and policies of the Company and its Subsidiaries shall carry over to Parent or the Surviving Corporation to the extent administratively practicable, and each such Continuing Employee shall be paid by the Company in cash for any accrued and unused vacation days that Parent determines are not administratively practicable to continue to honor. Nothing in this Section 7.05 is intended to create any third-party beneficiaries to this Agreement. Notwithstanding anything in this Agreement to the contrary, 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 the Surviving Corporation to terminate the employment of, any Covered Employee following the Effective Time or (ii) require the Surviving Corporation to continue any Company Employee Plan or prevent the amendment, modification or termination thereof after the Effective Time in each case in accordance with the terms of such Company Employee Plan. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be construed as an amendment of any employee benefit plan or policy of the Company, the Parent or any of their respective AffiliatesTime.

Employee Benefit Plan Matters. As of and subsequent to the Effective Time, Parent shall: (a) cause the Surviving Corporation to assume and honor the Management Retention Agreements, employee bonus plans and other retention plans and agreements listed in Section 7.05(a) Effective as of the Company Disclosure Schedule; (b) Effective Time and for a period of twelve months following the Effective Timeone (1) year thereafter, Parent shall provide, or shall cause the Surviving Corporation to either provide, to each employee of the Company who continues to be employed by the Company or the Surviving Corporation (the “Affected Employees”), (i) provide a base salary or regular hourly wage, whichever is applicable, and bonus opportunities and sales and service incentive award compensation opportunities (excluding all equity-based compensation) that are substantially comparable in the employees of aggregate to what was provided to such Affected Employee by the Company immediately prior to the Effective Time and its Subsidiaries who are employed (ii) employee benefits (excluding severance, retention, change in control, transaction bonus, and defined benefit pension benefits and retiree health and welfare benefits) that are, in the aggregate, substantially comparable to those provided to such Affected Employee (including all dependents) by the Company immediately prior to the Effective Time (the “Covered Employees”) who remain employed during such period by Parentexcluding severance, the Surviving Corporation or any of their respective Subsidiaries with base pay retention, change in control, transaction bonus, and defined benefit pension benefits (excluding equity based compensation) which are substantially comparable, in the aggregate, to the base pay and benefits provided by the Company retiree health and its Subsidiaries welfare benefits). Effective as of the date hereof Effective Time and thereafter, Parent shall provide, or (ii) provide or shall cause the Surviving Corporation to provide Covered Employees who remain employed during such period by Parentprovide, the Surviving Corporation or their respective Subsidiaries with base pay and benefits (excluding equity based compensation) that are substantially comparable, in the aggregate, to those provided to similarly situated employees of Parent and its Subsidiaries; (c) provide all Covered Employees with service credit for purposes of vacation accruals, and for eligibility, participation and vesting in any 401(k) plan of Parent or any of its Subsidiaries for all periods of continuous employment with the Company (including, without limitation, any current or its Subsidiaries (former Affiliate of the Company or any predecessor entitiesof the Company) prior to and any other periods of service recognized under any Company Benefit Plan shall be taken into account for purposes of determining, as applicable, the Effective Timeeligibility for participation of each Affected Employee in, the vesting of rights and benefits by each Affected Employee under, and with Parentthe determination of level or amount of benefits payable to or accrued by each Affected Employee under all employee benefit plans maintained or contributed to by Parent or an Affiliate of Parent for the benefit of the Affected Employees, the Surviving Corporation other than defined benefit pension plans, severance plans and any of their Subsidiaries or Affiliates on retiree health and after the Effective Timewelfare plans; and (d) provided, that no such service credit shall be recognized to the extent permitted by the applicable Parent employee benefit plan, cause any pre-existing conditions or limitations, eligibility waiting periods or required physical examinations under any Parent employee benefit plan to be waived that it would result in a duplication of benefits with respect to the Covered Employees and their eligible dependents, to the extent waived under the corresponding plan in which the applicable Covered Employee participated immediately prior to the same period of services. Effective Time. For the period commencing at as of the Effective Time and ending on the first anniversary thereofthereafter, Parent shall, and shall cause its Subsidiaries the Surviving Corporation to, honor use commercially reasonable efforts to (x) reduce any period of limitation on health benefits coverage of Affected Employees due to pre-existing conditions (or actively at 42 work or similar requirements) under the applicable health benefits plan of Parent or an Affiliate of Parent, (y) waive any and all eligibility waiting periods and evidence of insurability requirements with respect to such Affected Employees to the extent that any applicable eligibility waiting periods or evidence of insurability requirements under similar health benefit plans were waived or satisfied (or deemed to be satisfied) with respect to the Affected Employees under such health benefit plans and (z) credit each Affected Employee with all deductible payments, co-payments, and other out-of-pocket payments paid by such employee under the health benefit plans of the Company or its Affiliates prior to the Closing Date during the year in accordance with their terms as in effect which the Closing occurs for the purpose of determining the extent to which any such employee has satisfied his or her deductible and whether he or she has reached the out-of-pocket maximum under any health benefit plan of Parent or an Affiliate of Parent for such year. Neither the Merger nor any other transaction contemplated hereby shall affect any Affected Employee’s accrual of, or right to take, any accrued but unused personal, sick or vacation policies applicable to such Affected Employee immediately prior to the Effective Time the severance plans maintained by the Company, or any of its Subsidiaries. Unused vacation days accrued by Continuing Employees under the plans and policies of the Company and its Subsidiaries shall carry over to Parent or the Surviving Corporation to the extent administratively practicable, and each such Continuing Employee shall be paid by the Company in cash for any accrued and unused vacation days that Parent determines are not administratively practicable to continue to honor. Nothing in this Section 7.05 is intended to create any third-party beneficiaries to this Agreement. Notwithstanding anything in this Agreement to the contrary, 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 the Surviving Corporation to terminate the employment of, any Covered Employee following the Effective Time or (ii) require the Surviving Corporation to continue any Company Employee Plan or prevent the amendment, modification or termination thereof after the Effective Time in each case in accordance with the terms of such Company Employee Plan. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be construed as an amendment of any employee benefit plan or policy of the Company, the Parent or any of their respective AffiliatesTime.

Employee Benefit Plan Matters. As of and subsequent Parent will provide to the Effective Time, Parent shall: (a) cause the Surviving Corporation to assume and honor the Management Retention Agreements, each employee bonus plans and other retention plans and agreements listed in Section 7.05(a) of the Company Disclosure Schedule; who continues to be employed by Parent or any subsidiary of Parent (bincluding the Surviving Corporation) (i) annual base salary or base wages for a period of one (1) year following the Merger (or any earlier termination of employment) and (ii) benefits (including severance benefits) for a period of twelve six (6) months following the Effective TimeMerger (or any earlier termination of employment) that are, in each case, no less favorable than the annual base salary or base wages and benefits provided to such employee by the Company immediately prior to the Merger. Parent shall or shall cause has also agreed to, following the Surviving Corporation to either (i) provide the employees Merger, honor all employment, severance and change of control arrangements entered into between the Company and its Subsidiaries who are employed immediately prior to the Effective Time (the “Covered Employees”) who remain employed during such period by Parent, the Surviving Corporation or any of their respective Subsidiaries with base pay and benefits (excluding equity based compensation) which are substantially comparable, in the aggregate, to the base pay and benefits provided by the Company and its Subsidiaries as of the date hereof or (ii) provide or cause the Surviving Corporation to provide Covered Employees who remain employed during such period by Parent, the Surviving Corporation or their respective Subsidiaries with base pay and benefits (excluding equity based compensation) that are substantially comparable, in the aggregate, to those provided to similarly situated employees of Parent and its Subsidiaries; (c) provide all Covered Employees with service credit for purposes of vacation accruals, and for eligibility, participation and vesting in any 401(k) plan of Parent or any of its Subsidiaries for all periods of continuous employees. Prior employment with the Company or its Subsidiaries (or any predecessor entities) prior to the Effective Time, and with Parent, the Surviving Corporation and any of their Subsidiaries or Affiliates on and after the Effective Time; and (d) to the extent permitted by the applicable Parent employee benefit plan, cause any pre-existing conditions or limitations, eligibility waiting periods or required physical examinations under any Parent employee benefit plan to be waived with respect to the Covered Employees and their eligible dependentswill, to the extent waived under the corresponding plan in which the applicable Covered Employee participated immediately prior to the Effective Time. For the period commencing at the Effective Time and ending on the first anniversary thereof, Parent shall, and shall cause its Subsidiaries to, honor in accordance with their terms as in effect immediately prior to the Effective Time the severance plans maintained recognized by the Company, be taken into account in determining the eligibility for participation and levels of benefits (but not benefit accrual under any defined benefit plan or vesting under any plan) under all employee benefit plans maintained by Parent and any subsidiary of Parent for the benefit of the employees who continue to be employed after the Merger, except to the extent doing so would result in duplication of benefits. Parent has agreed to use its Subsidiaries. Unused vacation days accrued by Continuing Employees commercially reasonable efforts to waive any and all eligibility waiting periods for all health and welfare benefit plans and all pre-existing condition exclusions and actively-at-work requirements to the extent such conditions were inapplicable or waived under the comparable benefit plans and policies of the Company. Additionally, Xxxxxx has agreed to credit each employee with all deductible payments, out-of-pocket or other co-payments paid by such employee under the health benefit plans of the Company and its Subsidiaries shall carry over to Parent or the Surviving Corporation prior to the extent administratively practicable, Merger during the year in which the Merger occurs for the purpose of determining deductible and each such Continuing Employee shall out-of-pocket maximums under the health benefit plans of Parent for that year. The Merger Agreement also provides that the Company will terminate its 401(k) retirement plan effective prior to the closing date of the Merger. Rule 14d-10. The Merger Agreement also provides for certain covenants on the part of the Company relating to Rule 14d-10 under the Exchange Act and approvals that are to be paid made by the Company in cash for any accrued and unused vacation days that Parent determines are not administratively practicable Company’s compensation committee with respect to continue to honor. Nothing in this Section 7.05 is intended to create any thirdemployment-party beneficiaries to this Agreement. Notwithstanding anything in this Agreement to the contrary, 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 the Surviving Corporation to terminate the employment of, any Covered Employee following the Effective Time or (ii) require the Surviving Corporation to continue any Company Employee Plan or prevent the amendment, modification or termination thereof related arrangements entered into after the Effective Time in each case in accordance with the terms of such Company Employee Plan. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be construed as an amendment of any employee benefit plan or policy date of the Company, the Parent or any of their respective AffiliatesMerger Agreement.

Employee Benefit Plan Matters. As of and subsequent to the Effective Time, Parent shall: (a) cause the Surviving Corporation to assume and honor the Management Retention Agreements, employee bonus plans and other retention plans and agreements listed in Section 7.05(a) Effective as of the Company Disclosure Schedule; (b) Effective Time and for a period of twelve months following one year thereafter (or, if earlier, the Effective Timedate of a Affected Employee’s termination), Parent shall provide, or shall cause the Surviving Corporation to either (i) provide the employees provide, to each employee of the Company and its Subsidiaries who are continues to be employed immediately prior to by the Effective Time (the “Covered Employees”) who remain employed during such period by ParentCompany, the Surviving Corporation or any of their respective Subsidiaries with Affiliates immediately after the Closing Date (the “Affected Employees”), (i) a base pay salary or regular hourly wage, whichever is applicable, and target short-term cash bonus opportunities and target sales and service cash incentive award compensation opportunities (excluding all deferred compensation, retention, change in control, transaction bonus, equity and equity-based compensation) that are no less favorable in the aggregate to what was provided to such Affected Employee by the Company immediately prior to the Effective Time and (ii) employee benefits (excluding deferred compensation, severance, retention, change in control, transaction bonus, long-term bonus or incentive, equity and equity-based compensationcompensation and defined benefit pension benefits and retiree health and welfare benefits (the “Excluded Benefits”)) which are substantially comparablethat are, in the aggregate, substantially comparable to the base pay and benefits those provided to such Affected Employee (including all dependents) by the Company and its Subsidiaries immediately prior to the Effective Time (excluding the Excluded Benefits under the Company Benefit Plans set forth on Section 4.13(a) of the Company Disclosure Schedule). Effective as of the date hereof Effective Time and thereafter, Parent shall provide, or (ii) provide or shall cause the Surviving Corporation to provide Covered Employees who remain employed during provide, that periods of employment with the Company (including, without limitation, any current or former Affiliate of the Company or any predecessor of the Company) and any other periods of service recognized under any Company Benefit Plan shall be taken into account for purposes of determining, as applicable, the eligibility for participation of each Affected Employee in, the vesting of rights and benefits by each Affected Employee under, and the determination of level or amount of benefits under any paid time off plan payable to or accrued by each Affected Employee under the analogous employee benefit plans maintained or contributed to by Parent or an Affiliate of Parent for the benefit of the Affected Employees, other than defined benefit pension plans, severance plans and retiree health and welfare plans; provided, that no such service credit shall be recognized to the extent that it would result in a duplication of benefits with respect to the same period by Parentof services. Parent shall, and shall cause the Surviving Corporation to, use commercially reasonable efforts to (x) reduce any period of limitation on health benefits coverage of Affected Employees due to pre-existing conditions (or their respective Subsidiaries with base pay and actively at work or similar requirements) under the corresponding health benefits (excluding equity based compensation) that are substantially comparable, in the aggregate, to those provided to similarly situated employees of Parent and its Subsidiaries; (c) provide all Covered Employees with service credit for purposes of vacation accruals, and for eligibility, participation and vesting in any 401(k) plan of Parent or an Affiliate of Parent, (y) waive any and all eligibility waiting periods and evidence of its Subsidiaries for insurability requirements to the extent not applicable under the corresponding plans with respect to such Affected Employees to the extent that any applicable eligibility waiting periods or evidence of insurability requirements under the corresponding health benefit plans were waived or satisfied (or deemed to be satisfied) with respect to the Affected Employees under such health benefit plans and (z) credit each Affected Employee with all periods deductible payments, co-payments, and other out-of-pocket payments paid by such employee under the corresponding health benefit plans of continuous employment with the Company or its Subsidiaries (or any predecessor entities) Affiliates prior to the Effective Time, and with Parent, Closing Date during the Surviving Corporation and any year in which the Closing occurs for the purpose of their Subsidiaries or Affiliates on and after the Effective Time; and (d) to determining the extent permitted by to which any such employee has satisfied his or her deductible and whether he or she has reached the applicable Parent employee benefit plan, cause any preout-existing conditions or limitations, eligibility waiting periods or required physical examinations of-pocket maximum under any Parent employee health benefit plan to be waived with respect to the Covered Employees and their eligible dependentsof Parent or an Affiliate of Parent for such year, in each case, to the extent waived such pre-existing condition limitation or eligibility requirement was met or otherwise not applicable under the corresponding plan in which Company Benefit Plan. Neither the Merger nor any other transaction contemplated hereby shall affect any Affected Employee’s accrual of, or right to take, any accrued but unused personal, sick or vacation time applicable Covered to such Affected Employee participated immediately prior to the Effective Time. For the period commencing at the Effective Time and ending on the first anniversary thereof, Parent shall, and shall cause its Subsidiaries to, honor in accordance with their terms as in effect immediately prior to the Effective Time the severance plans maintained by the Company, or any of its Subsidiaries. Unused vacation days accrued by Continuing Employees under the plans and policies of the Company and its Subsidiaries shall carry over to Parent or the Surviving Corporation to the extent administratively practicable, and each such Continuing Employee shall be paid by the Company in cash for any accrued and unused vacation days that Parent determines are not administratively practicable to continue to honor. Nothing in this Section 7.05 is intended to create any third-party beneficiaries to this Agreement. Notwithstanding anything in this Agreement to the contrary, 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 the Surviving Corporation to terminate the employment of, any Covered Employee following the Effective Time or (ii) require the Surviving Corporation to continue any Company Employee Plan or prevent the amendment, modification or termination thereof after the Effective Time in each case in accordance with the terms of such Company Employee Plan. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be construed as an amendment of any employee benefit plan or policy of the Company, the Parent or any of their respective Affiliates.

Employee Benefit Plan Matters. (a) As of and subsequent to the Effective Time, Parent shall: (ai) cause the Surviving Corporation to assume and honor the Management Retention Agreementshonor, employee bonus plans, change in control and severance plans and agreements and other retention plans and agreements listed in Section 7.05(a4.17(a) of the Company Disclosure Schedule, provided that nothing herein shall prohibit Parent from amending, suspending or terminating any such plan or arrangement to the extent permitted by its terms and Applicable Law; (bii) for a period of not less than twelve (12) months following after the Effective Time, Parent shall or shall cause the Surviving Corporation to either (i) provide the employees of the Company and or its Subsidiaries who are employed as of immediately prior to the Effective Time who continue to be employed by Parent, the Surviving Corporation and/or its Subsidiaries on and after the Effective Time (the “Covered Employees”) who remain employed during such period by Parentbase compensation, the Surviving Corporation or any of their respective Subsidiaries with base pay incentive opportunities, severance and employee benefits (excluding equity based compensationincluding retirement, group health, life, disability, vacation and severance plans) which that are substantially comparable, not less favorable in the aggregate, aggregate to the base pay and benefits each Covered Employee than were provided by the Company and or its Subsidiaries as of to such Covered Employee immediately prior to the date hereof or (ii) provide or cause the Surviving Corporation to provide Covered Employees who remain employed during such period by Parent, the Surviving Corporation or their respective Subsidiaries with base pay and benefits (excluding equity based compensation) that are substantially comparable, in the aggregate, to those provided to similarly situated employees of Parent and its SubsidiariesEffective Time; (ciii) provide all Covered Employees with service credit for purposes of vacation accruals, and for eligibility, participation participation, vesting and vesting in levels of benefits under any 401(k) plan of employee benefit or compensation plan, program or arrangement adopted, maintained or contributed to by Parent or any of its the Surviving Corporation and/or their Subsidiaries in which Covered Employees are eligible to participate (the “Parent Plans”) for all periods of continuous employment with the Company or its Subsidiaries (or any predecessor entities) prior to the Effective Time to the same extent as such Covered Employee was entitled, before the Effective Time, to credit for such service under any similar Employee Plan in which such Covered Employee participated or was eligible to participate immediately prior to the Effective Time, and with Parent, the Surviving Corporation and any of their Subsidiaries or Affiliates on and after the Effective Time; , provided that the foregoing shall not apply (A) for any purpose under any defined benefit pension plan or retiree welfare plan, (B) for purposes of any Parent Plan under which similarly-situated employees of Parent and its Subsidiaries do not receive credit for prior service, (dC) for purposes of any Parent Plan that is grandfathered or frozen, either with respect to level of benefits or participation, or (D) to the extent permitted by that its application would result in a duplication of benefits with respect to the applicable Parent employee benefit plan, same period of service; (iv) use commercially reasonable efforts to cause any pre-existing conditions or limitations, eligibility waiting periods or required physical examinations under any Parent employee benefit plan Plan to be waived with respect to the Covered Employees and their eligible dependents, to the extent waived under the corresponding plan in which the applicable Covered Employee participated immediately prior to the Effective Time. For ; and (v) use commercially reasonable efforts to give the period commencing at Covered Employees and their eligible dependents credit for the plan year in which the Effective Time (or commencement of participation in a plan of Parent or the Surviving Corporation) occurs towards applicable deductibles and ending on the first anniversary thereof, Parent shall, and shall cause its Subsidiaries to, honor in accordance with their terms as in effect immediately annual out-of-pocket limits for expenses incurred prior to the Effective Time the severance plans maintained by the Company, or any of its Subsidiaries. Unused vacation days accrued by Continuing Employees under the plans and policies of the Company and its Subsidiaries shall carry over to Parent (or the Surviving Corporation to the extent administratively practicable, and each such Continuing Employee shall be paid by the Company date of commencement of participation in cash for any accrued and unused vacation days that Parent determines are not administratively practicable to continue to honor. Nothing in this Section 7.05 is intended to create any third-party beneficiaries to this Agreement. Notwithstanding anything in this Agreement to the contrary, 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 the Surviving Corporation to terminate the employment of, any Covered Employee following the Effective Time or (ii) require the Surviving Corporation to continue any Company Employee Plan or prevent the amendment, modification or termination thereof after the Effective Time in each case in accordance with the terms of such Company Employee Plan. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be construed as an amendment of any employee benefit plan or policy of the Company, the Parent or any of their respective Affiliates).