Common use of Employee Compensation and Benefit Plans Clause in Contracts

Employee Compensation and Benefit Plans. Notwithstanding anything to the contrary in the Term Sheet or any Definitive Document, all employee compensation and benefit plans, employment agreements, offer letters, award letters or key employee retention agreements (collectively, the “Employee Arrangements”) shall be deemed assumed under the Plan by the Reorganized Company other than any Employee Arrangement entitling employees to Interests or consideration based on the value of Interests that have not vested into Existing Equity Interests as of the Petition Date. If an Employee Arrangement provides in part for an award or potential award of Interests or consideration based on the value of Interests that have not vested into Existing Equity Interests as of the Petition Date, such Employee Arrangement shall be assumed in all respects other than the provisions of such agreement relating to Interest awards. Notwithstanding the foregoing, if an Employee Arrangement provides in part for a payment, premium, or other award upon the occurrence of a “change of control,” “change in control,” or other similar event, then such compensation or benefit plan shall only be assumed to the extent that the Restructuring, including consummation of the Plan, shall not be treated as a change of control, change in control, or other similar event under such compensation or benefit plan. Board of Directors of the Reorganized Company Upon the Effective Date, the Board of the Reorganized Company will consist of nine (9) members, with six (6) directors nominated by holders of the Mandatorily Convertible Preferred Stock, and three (3) directors nominated by the Company (on behalf of the holders of New Common Stock). After the Effective Date and for a period of two years thereafter (the “Initial Period”), the directors will be appointed or elected as follows: (a) Six (6) members of the Board will be nominated and elected by a majority of the holders of the Mandatorily Convertible Preferred Stock (and, for purposes of such nomination determination, such majority will be deemed to include any shares of Common Stock previously issued upon conversion of the Mandatorily Convertible Preferred Stock and continued to be held by a holder that evidences continuous ownership) (the “Preferred Stock Designees”); (b) three (3) members of the Board will be nominated by the Company Designees and elected by the holders of New Common Stock (the “Company Designees”). After the Initial Period, the holders of the Mandatorily Preferred Stock shall be entitled to nominate such numbers of directors as is proportional to their voting interest on as converted basis (which will be set forth in the Company’s organizational documents). At such time as the Company is no longer entitled to appoint the Company Designees, such director positions previously allocated to the Company shall be elected by the holders of New Common Stock, the outstanding Mandatorily Convertible Preferred Stock on an as-converted basis and any other outstanding Common Stock voting together as a single class. The Board will be classified with directors serving for three-year staggered terms. Company Designees will serve in the class up for reelection at the second annual meeting after the Effective Date. Preferred Stock Designees and Company Designees, as applicable, may only be removed for cause. Vacancies in seats held by Preferred Stock Designees shall be filled by remaining Preferred Stock Designees and vacancies in seats held by Company Designees shall be filled by remaining Company Designees. To the extent a nominating committee exists, it will include at least two (2) Company Designees during the Company Board Designee Period. The new governance structure of the Reorganized Company and its Board and committees will be set forth in the amended organizational documents of the Reorganized Company. For the first 18 months after the Effective Date, any sale of all or substantially all of the business of the Company or its assets, or any change of control transaction, changes to Board composition or structure (including the size of the Board) and amendments to organizational documents affecting these rights must be approved by at least seven (7) of nine (9) directors. Charter; Bylaws The charter, bylaws, limited liability company agreements and other organizational documents of each Reorganized Company’s corporate entity will (i) be amended or amended and restated by the Reorganized Company consistent with section 1123(a)(6) of the Bankruptcy Code, if applicable, and otherwise in accordance with the Plan, and the Restructuring Support Agreements, (ii) be in form and substance reasonably acceptable to the Requisite Senior Noteholders, and (iii) notwithstanding anything to the contrary, provide that the Mandatorily Convertible Preferred Stock shall vote with New Common Stock on an as-converted basis as to all matters; provided, that during the Initial Period, the Mandatorily Convertible Preferred Stock shall (a) not vote on as-converted basis with respect the election of directors, during which time the holders of the Mandatorily Convertible Preferred Stock will have the right to nominate the Senior Notes Designees, and the holders of the New Common Stock will have the right to nominate the Company Designees, and (b) not be entitled to vote to amend certain provisions of the bylaws and/or certificate of incorporation in any manner that adversely impacts the Board representation rights of the holders of the New Common Stock or the Company Designees during the Initial Period (e.g., removal directors, nomination/election rights, etc.).

Employee Compensation and Benefit Plans. Notwithstanding anything to Each of the contrary Buyer's employee benefit plans (as defined in the Term Sheet Section 3(3) of ERISA) under which Buyer has or may have any Definitive Documentobligation ("Buyer ERISA Plans"), and all employment contracts, all other employee compensation arrangements, all severance agreements and all other bonus, deferred compensation, pension, retirement, profit sharing, stock option, stock purchase, stock appreciation and other employee benefit plans, employment agreementsfunded or unfunded, offer lettersunder which Buyer has or may have any obligation ("non-ERISA Plans," and, award letters or key employee retention agreements (collectivelytogether with Buyer ERISA Plan, the “Employee Arrangements”"Buyer Benefit Plans") shall has been administered, in all material respects, in compliance with its terms and the requirements of applicable law. Buyer does not have and has not had any Buyer Benefit Plans which are subject to Title IV of ERISA. Neither Buyer nor any of its affiliates, its employees, directors or agents, or any fiduciary, has violated Section 406 of ERISA or engaged in any "Prohibited Transaction" (as defined in Section 4975(c)(1) of the Code) with respect to any Buyer ERISA Plan. Except as set forth on the SCHEDULE 3.6, the Schedule of Plan Liabilities, each Buyer ERISA Plan that is intended to be deemed assumed qualified under Section 401 and related provisions of the Code is the subject of a determination letter from the Internal Revenue Service to the effect that it is so qualified under the Plan by the Reorganized Company other than any Employee Arrangement entitling employees to Interests or consideration based on the value of Interests that have not vested into Existing Equity Interests as Code and its related funding vehicle is tax-exempt, under Section 501 of the Petition DateCode. If an Employee Arrangement provides No matter is pending relating to any Buyer Benefit Plan before any court or governmental agency. Neither Buyer, nor any of its affiliates is, or has ever been, obligated to contribute to a multiemployer plan (as defined in part for an award or potential award Section 3(37) of Interests or consideration based on ERISA). Except as required pursuant to the value Consolidated Omnibus Budget Reconciliation Act of Interests that have not vested into Existing Equity Interests as 1985 and Section 4980B of the Petition DateCode or as reflected on SCHEDULE 3.6 delivered pursuant hereto, such Employee Arrangement shall be assumed in all respects neither Buyer, nor any other than the provisions of such agreement relating to Interest awards. Notwithstanding the foregoing, if an Employee Arrangement provides in part for a payment, premium, or other award upon the occurrence of a “change of control,” “change in control,” or other similar event, then such compensation or benefit plan shall only be assumed to the extent that the Restructuring, including consummation of the Plan, shall not be treated as a change of control, change in control, or other similar event under such compensation or benefit plan. Board of Directors of the Reorganized Company Upon the Effective Date, the Board of the Reorganized Company will consist of nine (9) members, with six (6) directors nominated by holders of the Mandatorily Convertible Preferred Stock, and three (3) directors nominated by the Company (party on behalf of the holders of New Common Stock). After the Effective Date and for a period of two years thereafter (the “Initial Period”)Buyer, the directors will be appointed has any obligation or elected as follows: (a) Six (6) commitment to provide health, disability, or life insurance or similar welfare benefits to former employees or members of the Board will be nominated and elected by a majority of the holders of the Mandatorily Convertible Preferred Stock (and, for purposes of such nomination determination, such majority will be deemed to include any shares of Common Stock previously issued upon conversion of the Mandatorily Convertible Preferred Stock and continued to be held by a holder that evidences continuous ownership) (the “Preferred Stock Designees”); (b) three (3) members of the Board will be nominated by the Company Designees and elected by the holders of New Common Stock (the “Company Designees”). After the Initial Period, the holders of the Mandatorily Preferred Stock shall be entitled to nominate such numbers of directors as is proportional to their voting interest on as converted basis (which will be set forth in the Company’s organizational documents). At such time as the Company is no longer entitled to appoint the Company Designees, such director positions previously allocated to the Company shall be elected by the holders of New Common Stock, the outstanding Mandatorily Convertible Preferred Stock on an as-converted basis and any other outstanding Common Stock voting together as a single class. The Board will be classified with directors serving for three-year staggered terms. Company Designees will serve in the class up for reelection at the second annual meeting after the Effective Date. Preferred Stock Designees and Company Designees, as applicable, may only be removed for cause. Vacancies in seats held by Preferred Stock Designees shall be filled by remaining Preferred Stock Designees and vacancies in seats held by Company Designees shall be filled by remaining Company Designees. To the extent a nominating committee exists, it will include at least two (2) Company Designees during the Company Board Designee Period. The new governance structure of the Reorganized Company and its Board and committees will be set forth in the amended organizational documents of the Reorganized Company. For the first 18 months after the Effective Date, any sale of all or substantially all of the business of the Company or its assets, or any change of control transaction, changes to Board composition or structure (including the size of the Board) and amendments to organizational documents affecting these rights must be approved by at least seven (7) of nine (9) directors. Charter; Bylaws The charter, bylaws, limited liability company agreements and other organizational documents of each Reorganized Company’s corporate entity will (i) be amended or amended and restated by the Reorganized Company consistent with section 1123(a)(6) of the Bankruptcy Code, if applicable, and otherwise in accordance with the Plan, and the Restructuring Support Agreements, (ii) be in form and substance reasonably acceptable to the Requisite Senior Noteholders, and (iii) notwithstanding anything to the contrary, provide that the Mandatorily Convertible Preferred Stock shall vote with New Common Stock on an as-converted basis as to all matters; provided, that during the Initial Period, the Mandatorily Convertible Preferred Stock shall (a) not vote on as-converted basis with respect the election of directors, during which time the holders of the Mandatorily Convertible Preferred Stock will have the right to nominate the Senior Notes Designees, and the holders of the New Common Stock will have the right to nominate the Company Designees, and (b) not be entitled to vote to amend certain provisions of the bylaws and/or certificate of incorporation in any manner that adversely impacts the Board representation rights of the holders of the New Common Stock or the Company Designees during the Initial Period (e.g., removal directors, nomination/election rights, etcfamilies.).

Employee Compensation and Benefit Plans. Notwithstanding anything (a) Following the Closing and subject to Section 6.4(e), Buyer shall honor, or cause the contrary Company or its Subsidiaries, as applicable, to honor in the Term Sheet or any Definitive Document, all employee compensation and benefit plans, employment agreements, offer letters, award letters or key employee retention agreements (collectively, the “Employee Arrangements”) shall be deemed assumed under the Plan by the Reorganized Company other than any Employee Arrangement entitling employees to Interests or consideration based accordance with their terms as in effect on the value of Interests date hereof or as such terms may be amended in accordance with Section 6.2(vi) hereof those Benefit Plans that have not vested into Existing Equity Interests as are (i) listed on Schedule 3.13(a) of the Petition Date. If an Employee Arrangement provides in part for an award or potential award of Interests or consideration based on the value of Interests that have not vested into Existing Equity Interests as of the Petition Date, such Employee Arrangement shall be assumed in all respects other than the provisions of such agreement relating to Interest awards. Notwithstanding the foregoing, if an Employee Arrangement provides in part for a payment, premium, or other award upon the occurrence of a “change of control,” “change in control,” or other similar event, then such compensation or benefit plan shall only be assumed to the extent that the Restructuring, including consummation of the Plan, shall not be treated as a change of control, change in control, or other similar event under such compensation or benefit plan. Board of Directors of the Reorganized Company Upon the Effective Date, the Board of the Reorganized Company will consist of nine Seller Disclosure Schedule and (9ii) members, with six (6) directors nominated by holders of the Mandatorily Convertible Preferred Stock, and three (3) directors nominated maintained solely by the Company and/or one or more of its Subsidiaries or to which the Company or any of its Subsidiaries is a party; provided that nothing herein shall limit the right of Buyer, the Company and its Subsidiaries to amend or terminate any such Benefit Plan in accordance with its terms. Buyer agrees that it shall, or it shall cause the Company or its Subsidiaries, as applicable, to (i) provide aggregate employee benefits to Employees who are Employees on behalf of the holders of New Common Stock). After the Effective Closing Date and for a period of two years thereafter (at least one year following the “Initial Period”)Closing that, in the directors will be appointed or elected as follows: (aaggregate provide a level of benefits to such Employees during employment that is substantially comparable, in the aggregate, to that provided to such Employees pursuant to the terms of those Benefit Plans listed on Schedule 3.13(a) Six (6) members of the Board Seller Disclosure Schedule as in effect on the date hereof or as such terms may be amended in accordance with Section 6.2(vi) hereof; and (ii) maintain for a period of at least one year following the Closing employee severance plans that will be nominated and elected by provide a majority level of severance benefits to Employees who are Employees on the Closing Date that are no less favorable than those provided to such Employees pursuant to the terms of the holders severance plans that are listed on Schedule 3.13(a) of the Mandatorily Convertible Preferred Stock (andSeller Disclosure Schedule as in effect on the date hereof or as such terms may be amended in accordance with Section 6.2(vi) hereof; provided that nothing herein shall limit the right of Buyer, for purposes of such nomination determination, such majority will be deemed to include any shares of Common Stock previously issued upon conversion of the Mandatorily Convertible Preferred Stock and continued to be held by a holder that evidences continuous ownership) (the “Preferred Stock Designees”); (b) three (3) members of the Board will be nominated by the Company Designees and elected by the holders of New Common Stock (the “Company Designees”). After the Initial Period, the holders of the Mandatorily Preferred Stock shall be entitled to nominate such numbers of directors as is proportional to their voting interest on as converted basis (which will be set forth in the Company’s organizational documents). At such time as the Company is no longer entitled to appoint the Company Designees, such director positions previously allocated to the Company shall be elected by the holders of New Common Stock, the outstanding Mandatorily Convertible Preferred Stock on an as-converted basis and any other outstanding Common Stock voting together as a single class. The Board will be classified with directors serving for three-year staggered terms. Company Designees will serve in the class up for reelection at the second annual meeting after the Effective Date. Preferred Stock Designees and Company Designees, as applicable, may only be removed for cause. Vacancies in seats held by Preferred Stock Designees shall be filled by remaining Preferred Stock Designees and vacancies in seats held by Company Designees shall be filled by remaining Company Designees. To the extent a nominating committee exists, it will include at least two (2) Company Designees during the Company Board Designee Period. The new governance structure of the Reorganized Company and its Board and committees will be set forth in the amended organizational documents of the Reorganized Company. For the first 18 months after the Effective Date, any sale of all or substantially all of the business of the Company or any of its assetsSubsidiaries to terminate the employment of any Employee or, subject to the covenants in this subsection (a), amend or terminate any change of control transaction, changes to Board composition or structure (including the size of the Board) and amendments to organizational documents affecting these rights must be approved by at least seven (7) of nine (9) directors. Charter; Bylaws The charter, bylaws, limited liability company agreements and other organizational documents of each Reorganized Company’s corporate entity will (i) be amended or amended and restated by the Reorganized Company consistent with section 1123(a)(6) of the Bankruptcy Code, if applicable, and otherwise Benefit Plan in accordance with the Plan, and the Restructuring Support Agreements, (ii) be in form and substance reasonably acceptable to the Requisite Senior Noteholders, and (iii) notwithstanding anything to the contrary, provide that the Mandatorily Convertible Preferred Stock shall vote with New Common Stock on an as-converted basis as to all matters; provided, that during the Initial Period, the Mandatorily Convertible Preferred Stock shall (a) not vote on as-converted basis with respect the election of directors, during which time the holders of the Mandatorily Convertible Preferred Stock will have the right to nominate the Senior Notes Designees, and the holders of the New Common Stock will have the right to nominate the Company Designees, and (b) not be entitled to vote to amend certain provisions of the bylaws and/or certificate of incorporation in any manner that adversely impacts the Board representation rights of the holders of the New Common Stock or the Company Designees during the Initial Period (e.g., removal directors, nomination/election rights, etcits terms.).

Employee Compensation and Benefit Plans. Notwithstanding anything to For a period of one year after the contrary in the Term Sheet or Closing, except for any Definitive Document, all employee compensation and benefit equity incentive plans, employment agreementsthe Buyer shall cause the Surviving Corporation and its Subsidiaries to maintain employee benefit and compensation plans, offer lettersprograms, award letters or key employee retention agreements policies and arrangements (collectively, the “Employee ArrangementsBuyer’s Plans”) which, in the aggregate, will provide compensation and benefits to the employees of the Surviving Corporation and its Subsidiaries substantially similar, in the aggregate, to those provided pursuant to the plans, programs, policies and arrangements of the Company in effect on the date of this Agreement (collectively, the “Company Plans”); provided, that nothing herein shall interfere with the Surviving Corporation’s right or obligation to make such changes to such plans, programs, policies or arrangements as are necessary to conform with applicable Legal Requirements. To the maximum extent permitted by law, for the purposes of any of the Buyer’s Plans for which eligibility or vesting of benefits depends on length of service, and for any benefit for which the amount or level of benefits depends on length of service, the Buyer shall give (or cause to be given) to each employee full credit for past service with the Company or a Subsidiary as of and through the Closing Date under the Company Plans (“Prior Service”). In addition, and without limiting the generality of the foregoing, each employee (a) shall be deemed assumed under the Plan by the Reorganized Company other than any Employee Arrangement entitling employees to Interests or consideration based on the value of Interests that have not vested into Existing Equity Interests as of the Petition Date. If an Employee Arrangement provides in part given credit for an award or potential award of Interests or consideration based on the value of Interests that have not vested into Existing Equity Interests as of the Petition Date, such Employee Arrangement shall be assumed in all respects other than the provisions of such agreement relating to Interest awards. Notwithstanding the foregoing, if an Employee Arrangement provides in part for a payment, premium, or other award upon the occurrence of a “change of control,” “change in control,” or other similar event, then such compensation or benefit plan shall only be assumed to the extent that the Restructuring, including consummation of the Plan, shall not be treated as a change of control, change in control, or other similar event under such compensation or benefit plan. Board of Directors of the Reorganized Company Upon the Effective Date, the Board of the Reorganized Company will consist of nine (9) members, with six (6) directors nominated by holders of the Mandatorily Convertible Preferred Stock, and three (3) directors nominated by the Company (on behalf of the holders of New Common Stock). After the Effective Date and for a period of two years thereafter (the “Initial Period”), the directors will be appointed or elected as follows: (a) Six (6) members of the Board will be nominated and elected by a majority of the holders of the Mandatorily Convertible Preferred Stock (and, Prior Service for purposes of such nomination determinationeligibility to participate, such majority will be deemed to include satisfaction of any shares waiting periods, evidence of Common Stock previously issued upon conversion insurability requirements, or the application of the Mandatorily Convertible Preferred Stock and continued to be held by a holder that evidences continuous ownership) (the “Preferred Stock Designees”); any pre-existing condition limitations, (b) three (3) members of the Board will be nominated by the Company Designees and elected by the holders of New Common Stock (the “Company Designees”). After the Initial Period, the holders of the Mandatorily Preferred Stock shall be entitled to nominate such numbers of directors as is proportional to their voting interest on as converted basis (which will be set forth in the Company’s organizational documents). At such time as the given credit for amounts paid under a corresponding Company is no longer entitled to appoint the Company Designees, such director positions previously allocated to the Company shall be elected by the holders of New Common Stock, the outstanding Mandatorily Convertible Preferred Stock on an as-converted basis and any other outstanding Common Stock voting together as a single class. The Board will be classified with directors serving for three-year staggered terms. Company Designees will serve in the class up for reelection at the second annual meeting after the Effective Date. Preferred Stock Designees and Company Designees, as applicable, may only be removed for cause. Vacancies in seats held by Preferred Stock Designees shall be filled by remaining Preferred Stock Designees and vacancies in seats held by Company Designees shall be filled by remaining Company Designees. To the extent a nominating committee exists, it will include at least two (2) Company Designees Plan during the Company Board Designee Period. The new governance structure same period for purposes of the Reorganized Company applying deductibles, co-payments and its Board and committees will be set forth in the amended organizational documents of the Reorganized Company. For the first 18 months after the Effective Date, any sale of all or substantially all of the business of the Company or its assets, or any change of control transaction, changes to Board composition or structure (including the size of the Board) and amendments to organizational documents affecting these rights must be approved by at least seven (7) of nine (9) directors. Charter; Bylaws The charter, bylaws, limited liability company agreements and other organizational documents of each Reorganized Company’s corporate entity will (i) be amended or amended and restated by the Reorganized Company consistent with section 1123(a)(6) of the Bankruptcy Code, if applicable, and otherwise out-of-pocket maximums as though such amounts had been paid in accordance with the Plan, terms and conditions of the Restructuring Support Agreements, (ii) be in form and substance reasonably acceptable to the Requisite Senior NoteholdersBuyer’s Plans, and (iiic) notwithstanding anything shall be eligible to receive under the Buyer’s Plans such periods of vacation leave, sick leave, personal days, holidays and other similar periods of leave as were accrued and available to the contrary, provide that the Mandatorily Convertible Preferred Stock shall vote with New Common Stock on an as-converted basis as to all matters; provided, that during the Initial Period, the Mandatorily Convertible Preferred Stock shall (a) not vote on as-converted basis with respect the election of directors, during which time the holders of the Mandatorily Convertible Preferred Stock will have the right to nominate the Senior Notes Designees, and the holders of the New Common Stock will have the right to nominate employee under the Company Designees, and (b) not be entitled Plans immediately prior to vote to amend certain provisions of the bylaws and/or certificate of incorporation in any manner that adversely impacts the Board representation rights of the holders of the New Common Stock or the Company Designees during the Initial Period (e.g., removal directors, nomination/election rights, etcEffective Time.).

Employee Compensation and Benefit Plans. Notwithstanding anything (a) Following the Closing and subject to Section 6.3(e), Buyer shall honor, or cause the contrary Company or its Subsidiaries, as applicable, to honor in the Term Sheet or any Definitive Document, all employee compensation and benefit plans, employment agreements, offer letters, award letters or key employee retention agreements (collectively, the “Employee Arrangements”) shall be deemed assumed under the Plan by the Reorganized Company other than any Employee Arrangement entitling employees to Interests or consideration based accordance with their terms as in effect on the value of Interests date hereof those Benefit Plans that have not vested into Existing Equity Interests as are (i) listed on Schedule 3.13(a) of the Petition Date. If an Employee Arrangement provides in part for an award or potential award of Interests or consideration based on the value of Interests that have not vested into Existing Equity Interests as of the Petition Date, such Employee Arrangement shall be assumed in all respects other than the provisions of such agreement relating to Interest awards. Notwithstanding the foregoing, if an Employee Arrangement provides in part for a payment, premium, or other award upon the occurrence of a “change of control,” “change in control,” or other similar event, then such compensation or benefit plan shall only be assumed to the extent that the Restructuring, including consummation of the Plan, shall not be treated as a change of control, change in control, or other similar event under such compensation or benefit plan. Board of Directors of the Reorganized Company Upon the Effective Date, the Board of the Reorganized Company will consist of nine Seller Disclosure Schedule and (9ii) members, with six (6) directors nominated by holders of the Mandatorily Convertible Preferred Stock, and three (3) directors nominated maintained solely by the Company and/or one or more of its Subsidiaries or to which the Company or any of its Subsidiaries is a party; provided that nothing herein shall limit the right of Buyer, the Company and its Subsidiaries to amend or terminate any such Benefit Plan in accordance with its terms. Buyer agrees that it shall, or it shall cause the Company or its Subsidiaries, as applicable, to (i) provide aggregate employee benefits (other than defined benefit retirement benefits) to Employees who are Employees on behalf of the holders of New Common Stock). After the Effective Closing Date and for a period of two years thereafter (at least one year following the “Initial Period”)Closing that, in the directors will be appointed or elected as follows: (aaggregate provide a level of benefits to such Employees during employment that is substantially comparable, in the aggregate, to that provided to such Employees pursuant to the terms of those Benefit Plans listed on Schedule 3.13(a) Six (6) members of the Board will be nominated and elected by a majority of the holders of the Mandatorily Convertible Preferred Stock (andSeller First Disclosure Schedule as in effect on July 25, for purposes of 2002 or as such nomination determination, such majority will be deemed to include any shares of Common Stock previously issued upon conversion of the Mandatorily Convertible Preferred Stock and continued to be held by a holder that evidences continuous ownership) (the “Preferred Stock Designees”); (b) three (3) members of the Board will be nominated by the Company Designees and elected by the holders of New Common Stock (the “Company Designees”). After the Initial Period, the holders of the Mandatorily Preferred Stock shall be entitled to nominate such numbers of directors terms were amended in accordance with Section 3.6 hereof as is proportional to their voting interest on as converted basis (which will be set forth in Schedule 3.13(a) of the Company’s organizational documents). At Seller Disclosure Update other than any such time as plans that are defined benefit retirement plans; and (ii) maintain for a period of at least one year following the Company is Closing employee severance plans that will provide a level of severance benefits to Employees who are Employees on the Closing Date that are no longer entitled less favorable than those provided to appoint the Company Designees, such director positions previously allocated Employees pursuant to the Company shall be elected by the holders of New Common Stock, the outstanding Mandatorily Convertible Preferred Stock on an as-converted basis and any other outstanding Common Stock voting together as a single class. The Board will be classified with directors serving for three-year staggered terms. Company Designees will serve in the class up for reelection at the second annual meeting after the Effective Date. Preferred Stock Designees and Company Designees, as applicable, may only be removed for cause. Vacancies in seats held by Preferred Stock Designees shall be filled by remaining Preferred Stock Designees and vacancies in seats held by Company Designees shall be filled by remaining Company Designees. To the extent a nominating committee exists, it will include at least two (2) Company Designees during the Company Board Designee Period. The new governance structure terms of the Reorganized Company and its Board and committees will be severance plans that are listed on Schedule 3.13(a) of the Seller First Disclosure Schedule as in effect on July 25, 2002 or as such terms were amended in accordance with Section 3.6 hereof as set forth in the amended organizational documents Schedule 3.13(a) of the Reorganized Company. For Seller Disclosure Update; provided that nothing herein shall limit the first 18 months after the Effective Dateright of Buyer, any sale of all or substantially all of the business of the Company or any of its assetsSubsidiaries to terminate the employment of any Employee or, subject to the covenants in this subsection (a), amend or terminate any change of control transaction, changes to Board composition or structure (including the size of the Board) and amendments to organizational documents affecting these rights must be approved by at least seven (7) of nine (9) directors. Charter; Bylaws The charter, bylaws, limited liability company agreements and other organizational documents of each Reorganized Company’s corporate entity will (i) be amended or amended and restated by the Reorganized Company consistent with section 1123(a)(6) of the Bankruptcy Code, if applicable, and otherwise Benefit Plan in accordance with the Plan, and the Restructuring Support Agreements, (ii) be in form and substance reasonably acceptable to the Requisite Senior Noteholders, and (iii) notwithstanding anything to the contrary, provide that the Mandatorily Convertible Preferred Stock shall vote with New Common Stock on an as-converted basis as to all matters; provided, that during the Initial Period, the Mandatorily Convertible Preferred Stock shall (a) not vote on as-converted basis with respect the election of directors, during which time the holders of the Mandatorily Convertible Preferred Stock will have the right to nominate the Senior Notes Designees, and the holders of the New Common Stock will have the right to nominate the Company Designees, and (b) not be entitled to vote to amend certain provisions of the bylaws and/or certificate of incorporation in any manner that adversely impacts the Board representation rights of the holders of the New Common Stock or the Company Designees during the Initial Period (e.g., removal directors, nomination/election rights, etcits terms.).

Employee Compensation and Benefit Plans. Notwithstanding anything to the contrary in the Term Sheet or any Definitive Document, all employee compensation and benefit plans, employment agreements, offer letters, award letters or key employee retention agreements (collectively, the “Employee Arrangements”) shall be deemed assumed under the Plan by the Reorganized Company other than any Employee Arrangement entitling employees to Interests or consideration based on the value of Interests that have not vested into Existing Equity Interests as of the Petition Date. If an Employee Arrangement provides in part for an award or potential award of Interests or consideration based on the value of Interests that have not vested into Existing Equity Interests as of the Petition Date, such Employee Arrangement shall be assumed in all respects other than the provisions of such agreement relating to Interest awards. Notwithstanding the foregoing, if an Employee Arrangement provides in part for a payment, premium, or other award upon the occurrence of a “change of control,” “change in control,” or other similar event, then such compensation or benefit plan shall only be assumed to the extent that the Restructuring, including consummation of the Plan, shall not be treated as a change of control, change in control, or other similar event under such compensation or benefit plan. Board of Directors of the Reorganized Company Upon the Effective Date, the Board of the Reorganized Company will consist of nine (9) members, with six (6) directors nominated by holders of the Mandatorily Convertible Preferred Stock, and three (3) directors nominated by the Company (on behalf of the holders of New Common Stock). After the Effective Date and for a period of two years thereafter (the “Initial Period”), the directors will be appointed or elected as follows: (a) Six (6) members of the Board will be nominated and elected by a majority of the holders of the Mandatorily Convertible Preferred Stock (and, for purposes of such nomination determination, such majority will be deemed to include any shares of Common Stock previously issued upon conversion of the Mandatorily Convertible Preferred Stock and continued to be held by a holder that evidences continuous ownership) (the “Preferred Stock Designees”); (b) three (3) members of the Board will be nominated by the Company Designees and elected by the holders of New Common Stock (the “Company Designees”). After the Initial Period, the holders of the Mandatorily Preferred Stock shall be entitled to nominate such numbers of directors as is proportional to their voting interest on as converted basis (which will be set forth in the Company’s organizational documents). At such time as the Company is no longer entitled to appoint the Company Designees, such director positions previously allocated to the Company shall be elected by the holders of New Common Stock, the outstanding Mandatorily Convertible Preferred Stock on an as-converted basis and any other outstanding Common Stock voting together as a single class. The Board will be classified with directors serving for three-year staggered terms. Company Designees will serve in the class up for reelection at the second annual meeting after the Effective Date. Preferred Stock Designees and Company Designees, as applicable, may only be removed for cause. Vacancies in seats held by Preferred Stock Designees shall be filled by remaining Preferred Stock Designees and vacancies in seats held by Company Designees shall be filled by remaining Company Designees. To the extent a nominating committee exists, it will include at least two (2) Company Designees during the Company Board Designee Period. The new governance structure of the Reorganized Company and its Board and committees will be set forth in the amended organizational documents of the Reorganized Company. For the first 18 months after the Effective Date, any sale of all or substantially all of the business of the Company or its assets, or any change of control transaction, changes to Board composition or structure (including the size of the Board) and amendments to organizational documents affecting these rights must be approved by at least seven (7) of nine (9) directors. Charter; Bylaws The charter, bylaws, limited liability company agreements and other organizational documents of each Reorganized Company’s corporate entity will (i) be amended or amended and restated by the Reorganized Company consistent with section 1123(a)(6) of the Bankruptcy Code, if applicable, and otherwise in accordance with the Plan, and the Restructuring Support Agreements, (ii) be in form and substance reasonably acceptable to the Requisite Senior Noteholders, and (iii) notwithstanding anything to the contrary, provide that the Mandatorily Convertible Preferred Stock shall vote with New Common Stock on an as-converted basis as to all matters; provided, that during the Initial Period, the Mandatorily Convertible Preferred Stock shall (a) not vote on as-converted basis with respect the election of directors, during which time the holders of the Mandatorily Convertible Preferred Stock will have the right to nominate the Senior Notes Designees, and the holders of the New Common Stock will have the right to nominate the Company Designees, and (b) not be entitled to vote to amend certain provisions of the bylaws and/or certificate of incorporation in any manner that adversely impacts the Board representation rights of the holders of the New Common Stock or the Company Designees during the Initial Period (e.g., removal directors, nomination/election rights, etc.). Cancellation of Notes, Interest, Instruments, Certificates and other Documents Except as provided herein and in connection with the Credit Agreement, on the Effective Date, all notes, instruments, certificates evidencing debt to, or Interests in, the Company, including, without limitation, the Senior Notes, the Convertible Notes, and Existing Equity Interests, will be cancelled and obligations of the Company thereunder will be discharged. In addition, on the Effective Date, any registration rights or similar agreements with respect to Existing Equity Interests will also be cancelled and any obligations of the Company thereunder will be discharged. Company Guarantees On the Effective Date, all guarantees, indemnities, or other credit support provided by the Company to support its affiliates or subsidiaries shall be reinstated to their position immediately prior to the Petition Date. Vesting of Assets On the Effective Date, pursuant to sections 1141(b) and (c) of the Bankruptcy Code, all assets of the Company’s Estate will vest in the Reorganized Company free and clear of all claims, liens, encumbrances, charges and other interests, except as otherwise provided in the Plan. Compromise and Settlement The Plan will contain provisions for the compromise and settlement of Claims stating that, except as provided herein, the allowance, classification and treatment of Allowed Claims and Interests and their respective distributions take into account and conform to the relative priority and rights of such Claims and Interests in connection with any contractual, legal and equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, section 510 of the Bankruptcy Code or otherwise. Survival of Indemnification Obligations and D&O Insurance Any obligations of the Company pursuant to its corporate charters, bylaws, limited liability company agreements, or other organizational documents to indemnify current and former officers, directors, agents, and/or employees with respect to all present and future actions, suits, and proceedings against the Company or such directors, officers, agents, and/or employees, based upon any act or omission for or on behalf of the Company will not be discharged or impaired by confirmation of the Plan or the occurrence of the Effective Date. All such obligations will be deemed and treated as executory contracts to be assumed by the Company under the Plan and will continue as obligations of the Reorganized Company. In addition, after the Effective Date, the Reorganized Company will not terminate or otherwise reduce the coverage under any directors’ and officers’ insurance policies (including any “tail policy”) in effect as of the Petition Date, and all members, managers, directors and officers of the Company who served in such capacity at any time prior to the Effective Date will be entitled to the full benefits of any such policy for the full term of such policy regardless of whether such members, managers, directors, and/or officers remain in such positions after the Effective Date.

Employee Compensation and Benefit Plans. Notwithstanding anything (i) For the eighteen-month period immediately following the Closing Date, Buyer shall, or shall cause its Affiliates to, provide to each Transferred Employee who is not covered by a U.S. collective bargaining agreement (in respect of his or her service after the Closing) (A) base compensation and incentive compensation opportunities that are no less favorable than the base compensation and incentive compensation opportunities as in effect for each such Transferred Employee as of immediately prior to the contrary Closing Date (it being understood that equity compensation shall not be included in determining the Term Sheet or any Definitive Document, all employee level of compensation to be provided) and benefit plans, employment agreements, offer letters, award letters or key employee retention agreements (collectively, the “Employee Arrangements”B) shall be deemed assumed under the Plan by the Reorganized Company other than any Employee Arrangement entitling employees to Interests or consideration based on the value of Interests that have not vested into Existing Equity Interests as of the Petition Date. If an Employee Arrangement provides in part for an award or potential award of Interests or consideration based on the value of Interests that have not vested into Existing Equity Interests as of the Petition Closing Date, welfare and retirement benefits that, in the aggregate, are no less favorable in the aggregate to those in effect for such Transferred Employee Arrangement shall be assumed in all respects other than immediately before the provisions of such agreement relating to Interest awards. Notwithstanding the foregoing, if an Employee Arrangement provides in part for a payment, premium, or other award upon the occurrence of a “change of control,” “change in control,” or other similar event, then such compensation or benefit plan shall only be assumed Closing pursuant to the extent Benefit Plans which have been provided or made available to the Buyer (it being understood that the Restructuring, including consummation of the Plan, retiree welfare benefits shall not be treated as a change included in determining the level of controlbenefits to be provided, change and that no specific type of benefit is required to be provided). Subject to “effects bargaining” obligations, the Transferred Employees will be eligible to participate in controlthe benefit and compensation plans, contracts, policies and arrangements of Buyer or other similar event under such its applicable Affiliates (including the benefit and compensation or benefit plan. Board of Directors plans, contracts, policies and arrangements of the Reorganized Company Upon Transferred Subsidiaries maintained at or after the Effective Date, the Board of the Reorganized Company will consist of nine (9) members, with six (6) directors nominated by holders of the Mandatorily Convertible Preferred Stock, and three (3) directors nominated by the Company (on behalf of the holders of New Common Stock). After the Effective Date and for a period of two years thereafter (the “Initial Period”), the directors will be appointed or elected as follows: (a) Six (6) members of the Board will be nominated and elected by a majority of the holders of the Mandatorily Convertible Preferred Stock (and, for purposes of such nomination determination, such majority will be deemed to include any shares of Common Stock previously issued upon conversion of the Mandatorily Convertible Preferred Stock and continued to be held by a holder that evidences continuous ownershipClosing) (the “Preferred Stock DesigneesBuyer Benefit Plans”); (b) three (3) members effective as of the Board will be nominated by Closing. Buyer shall, or shall cause its Affiliates, to provide severance benefits to any Transferred Employee who is laid-off or terminated during the Company Designees and elected by one-year period immediately following the holders of New Common Stock (the “Company Designees”). After the Initial Period, the holders of the Mandatorily Preferred Stock shall be entitled to nominate such numbers of directors as Closing Date in an amount that is proportional to their voting interest on as converted basis (which will be set forth in the Company’s organizational documents). At such time as the Company is no longer entitled to appoint the Company Designees, such director positions previously allocated equal to the Company shall be elected by the holders greater of New Common Stock, the outstanding Mandatorily Convertible Preferred Stock on an as-converted basis and any other outstanding Common Stock voting together as a single class. The Board will be classified with directors serving for three-year staggered terms. Company Designees will serve in the class up for reelection at the second annual meeting after the Effective Date. Preferred Stock Designees and Company Designees, as applicable, may only be removed for cause. Vacancies in seats held by Preferred Stock Designees shall be filled by remaining Preferred Stock Designees and vacancies in seats held by Company Designees shall be filled by remaining Company Designees. To the extent a nominating committee exists, it will include at least two (2x) Company Designees during the Company Board Designee Period. The new governance structure of the Reorganized Company and its Board and committees will be set forth in the amended organizational documents of the Reorganized Company. For the first 18 months after the Effective Date, any sale of all or substantially all of the business of the Company or its assets, or any change of control transaction, changes to Board composition or structure (including the size of the Board) and amendments to organizational documents affecting these rights must be approved by at least seven (7) of nine (9) directors. Charter; Bylaws The charter, bylaws, limited liability company agreements and other organizational documents of each Reorganized Company’s corporate entity will (i) be amended or amended for U.S. Transferred Employees, to the extent no payments have been made thereunder, the severance benefits (including severance payments and restated by continued health coverage) that the Reorganized Company consistent with section 1123(a)(6) employee would have been entitled to pursuant to the terms of the Bankruptcy Code, if applicable, applicable Benefit Plan in place as of the Closing Date and otherwise in accordance with the Plan, and the Restructuring Support Agreements, (ii) be in form for non-U.S. Transferred Employees, the statutory severance benefits such employee is entitled to under applicable law and substance reasonably acceptable any additional severance benefits such employee is entitled to pursuant to the Requisite Senior Noteholders, terms of any applicable Non-U.S. Benefit Plan in place as of the Closing Date and provided or made available to Seller and (iiiy) notwithstanding anything to the contrary, provide that severance benefits provided under the Mandatorily Convertible Preferred Stock shall vote with New Common Stock on an as-converted basis as to all matters; provided, that during the Initial Period, the Mandatorily Convertible Preferred Stock shall (a) not vote on as-converted basis with respect the election severance arrangements of directors, during which time the holders of the Mandatorily Convertible Preferred Stock will have the right to nominate the Senior Notes Designees, and the holders of the New Common Stock will have the right to nominate the Company Designees, and (b) not be entitled to vote to amend certain provisions of the bylaws and/or certificate of incorporation in any manner that adversely impacts the Board representation rights of the holders of the New Common Stock Buyer or the Company Designees during the Initial Period (e.g., removal directors, nomination/election rights, etcits Affiliates.).