Common use of Employees; Employee Benefit Matters Clause in Contracts

Employees; Employee Benefit Matters. (a) Following the Closing Date, Purchaser shall maintain or cause to be maintained compensation opportunities, employee pension and welfare plans for the benefit of employees who are actively employed by the Company and its Subsidiaries as of the Closing Date (“Covered Employees”) which, in the aggregate, are generally substantially comparable to those compensation opportunities and other employee, pension and welfare benefits that are made available to similarly situated employees of Purchaser or its Subsidiaries as applicable, provided, that in no event shall any Covered Employee be eligible to participate in any closed or frozen plan of Purchaser or its Subsidiaries; provided, further, that until such time as Purchaser shall cause Covered Employees to participate in the benefit plans that are made available to similarly situated employees of Purchaser or its Subsidiaries, the Covered Employees continued participation in the benefit plans of the Company and its Subsidiaries shall be deemed to satisfy the foregoing provisions of this sentence. Notwithstanding the foregoing, (i) each Covered Employee shall be eligible for severance benefits following the Closing Date solely under Purchaser’s severance plan and (ii) nothing herein shall obligate Purchaser or any of its Subsidiaries to continue the employment of any Covered Employee. (b) For purposes of their participation in the employee benefit plans, arrangements and agreements of Purchaser (the “Purchaser Benefit Plans”), Purchaser shall credit each Covered Employee of Company and each of its Subsidiaries with full credit for all service credited under the Company Benefit Plans (including service with Company prior to the Closing Date and, where applicable, service with prior or predecessor employers to the extent credit is given for such service under the Company Benefit Plans) for purposes of eligibility to participate and receive benefits, for purposes of vesting and, except under defined benefit pension plans, for purposes of benefit accruals; provided that such recognition of service shall not operate to duplicate benefits with respect to Covered Employee and Covered Employees shall receive no credit for service under closed or frozen Purchaser Benefit Plans. With respect to Purchaser welfare benefit plans, Purchaser shall use commercially reasonable efforts to cause any such plan to waive any pre-existing condition exclusions and actively-at-work requirements thereunder with respect to the Covered Employees and their eligible dependents (to the extent waived under the applicable Company welfare benefit plan and, with respect to life insurance coverage, up to the Covered Employee’s current level of insurability) and ensure that any covered expenses incurred on or before the Closing Date (or, if later, the date on which such Covered Employee commences participation in a Purchaser Benefit Plan) shall be taken into account for purposes of satisfying applicable deductible, coinsurance and maximum out-of-pocket provisions after the Closing Date, to the extent that such expenses are taken into account for the benefit of similarly situated employees of Purchaser. (c) Purchaser shall cause Company to honor all written contractual obligations of Company and its Subsidiaries to their respective current and former employees, directors and independent contractors, including, but not limited to, all obligations under employment, severance and consulting plans and arrangements and under all other Company-Only Plans to the extent disclosed on Section 3.11(a) of the Company Disclosure Schedule; provided that nothing herein shall limit the right of Purchaser or any of its Subsidiaries to terminate any particular plan or agreement in accordance with its terms. Notwithstanding the foregoing, for at least the one-year period following the Closing Date, Purchaser shall continue to provide to participating retirees as of the date hereof post-retirement benefits that are substantially comparable to the post-retirement benefits provided under Company-Only Plans as in effect for such retirees as of immediately prior to the Closing Date. (d) Without limiting the generality of the final sentence of Section 10.10, nothing in this Section 6.5, express or implied, is intended to or shall confer upon any other person including without limitation any employee or former employee, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement and no provision of this Section 6.5 shall constitute an amendment of any Company Benefit Plan. (e) Seller shall cause the Board of Directors of the Company (or the appropriate committee thereof) to take the necessary action to amend the Company-Only Plans and any Company sponsored employee benefit trusts or other funding vehicles (the “Company Benefit Trusts”), including without limitation those listed on Schedule 6.5(e) of the Company Disclosure Schedule, or take such other appropriate action, to ensure that for purposes of the Company-Only Plans and the Company Benefit Trusts, the transactions contemplated by this Agreement (either standing alone or together with any other event) will not constitute a “change of control” (or any derivation of such term) and that in no event shall the transactions contemplated by this Agreement (either standing alone or together with any other event) result in (i) the accelerated payment or vesting of any compensation or benefits under any Company-Only Plans, (ii) the right to receive severance or similar benefits under any Company-Only Plans, (iii) the funding of any Company Benefit Trusts, (iv) any limitation on the ability of the Company to amend or terminate any Company-Only Plan or Company Benefit Trust, or (v) any limitation on the Company’s right to receive a reversion of assets. Prior to adoption, Seller shall provide Purchaser with copies of such amendments and/or resolutions and the opportunity to comment on them. Prior to the Closing Date, Seller shall have ratified the amendments required by this Section 6.5(e).

Employees; Employee Benefit Matters. (a) Following With respect to each Business Employee who is employed in connection with the Business immediately before the Closing Date, including any employee who is absent from work by reason of vacation, the Purchaser agrees that as of and immediately after the Closing Date, the Purchaser shall maintain employ such Business Employee in a position that is reasonably comparable to that held with the Seller as disclosed to the Purchaser in the Data Book Information dated July 2002 and that does not result in a significant change in compensation (excluding any retention or other bonus plan payments) or work location. With respect to each Business Employee who is absent from work on the Closing Date by reason of approved leave of absence, short-term disability, or workers' compensation, the Purchaser agrees that when each such Business Employee is available to return to work, fit for duty, within one (1) year after the Closing Date the Purchaser shall offer to employ such Business Employee in a position that is reasonably comparable to that held with the Seller as disclosed to the Purchaser in the Data Book Information dated July 2002 and that does not result in a significant change in compensation (excluding any retention or other bonus plan payments) or work location. The Purchaser shall indemnify and hold harmless the Seller and be responsible for any Claims made by any Business Employees for severance or other benefits based on separation, for any Claims based on breach of contract, and for any other Claims arising out of or in connection with the employment, or the suspension or termination of employment of, any employees, other than any claims related to the Seller's actions before the Closing Date or based solely on the transactions contemplated by this Agreement. (b) On and after the Closing Date, the Purchaser shall credit to each Business Employee the service of such employee with the Seller through the Closing Date to the same extent as if such service had been performed for the Purchaser (i) for all purposes in connection with determining such employee's eligibility for and vesting in all Plans, programs, and arrangements for which such employee is otherwise eligible, including but not limited to, as applicable, the Purchaser's Pension Plan, 401(k) Plan, severance, and sick days, and (ii) for purposes of determining the amount of such employee's benefit under the Purchaser's severance plan. For purposes of the Purchaser's vacation policy, the Purchaser shall credit each Business Employee with no less than the number of years of service necessary to ensure that (i) each Business Employee has the same number of annual vacation days for 2002 (taking into account days used by each Business Employee while employed by the Seller) under the Purchaser's vacation policy as under the Seller's vacation policy, and (ii) each Business Employee does not require a greater number of years of service to reach the next higher increment of vacation days under the Purchaser's vacation policy than would have been required under the Seller's vacation policy. Vacation earned by Business Employees in 2001 to be taken in 2002, and which is unused as of the Closing Date, shall be assumed by the Purchaser provided that: (i) the Seller shall pay the Purchaser an amount equal to the value of such unused vacation on the Closing Date, and (ii) the Purchaser shall pay any Business Employee who terminates employment with Purchaser in 2002 for any reason an amount equal to the value of such Business Employee's unused vacation for 2002. The Purchaser shall have no obligation to pay to any Business Employees any of the value of any vacation accrued in 2002 that is not available for use in that year. Furthermore, the Purchaser shall waive or cause to be maintained compensation opportunitieswaived, employee pension and welfare plans for except to the benefit extent such waiver is prohibited by applicable Law, any waiting period, probationary period, pre-existing condition exclusion, evidence of employees who are actively employed by the Company and its Subsidiaries as insurability requirement, or similar condition with respect to initial participation under any Plan, program, or arrangement of the Closing Date (“Covered Employees”) whichPurchaser to provide health coverage, in the aggregatelife insurance, are generally substantially comparable to those compensation opportunities and disability benefits, or other employee, pension and similar welfare benefits that are made available with respect to similarly situated employees of Purchaser or its Subsidiaries as applicable, provided, that in no event shall any Covered each Business Employee be eligible to participate in any closed or frozen plan of Purchaser or its Subsidiaries; provided, further, that until such time as Purchaser shall cause Covered Employees to participate in who has satisfied the benefit plans that are made available to similarly situated employees of Purchaser or its Subsidiaries, comparable requirements under the Covered Employees continued participation in Seller's comparable Plans before the benefit plans of the Company and its Subsidiaries shall be deemed to satisfy the foregoing provisions of this sentenceClosing Date. Notwithstanding the foregoing, (i) each Covered Employee the Business Employees employed by the Purchaser shall not be eligible for severance medical benefits following with the Purchaser until October 1, 2002. On and after the Closing Date solely under Purchaser’s severance plan and (ii) nothing herein shall obligate Purchaser or any of its Subsidiaries to continue the employment of any Covered Employee. (b) For purposes of their participation in the employee benefit plansuntil September 30, arrangements and agreements of Purchaser (the “Purchaser Benefit Plans”), Purchaser shall credit each Covered Employee of Company and each of its Subsidiaries with full credit for all service credited under the Company Benefit Plans (including service with Company prior to the Closing Date and, where applicable, service with prior or predecessor employers to the extent credit is given for such service under the Company Benefit Plans) for purposes of eligibility to participate and receive benefits, for purposes of vesting and, except under defined benefit pension plans, for purposes of benefit accruals; provided that such recognition of service shall not operate to duplicate benefits with respect to Covered Employee and Covered Employees shall receive no credit for service under closed or frozen Purchaser Benefit Plans. With respect to Purchaser welfare benefit plans, Purchaser shall use commercially reasonable efforts to cause any such plan to waive any pre-existing condition exclusions and actively-at-work requirements thereunder with respect to the Covered Employees and their eligible dependents (to the extent waived under the applicable Company welfare benefit plan and, with respect to life insurance coverage, up to the Covered Employee’s current level of insurability) and ensure that any covered expenses incurred on or before the Closing Date (or, if later2002, the date on which such Covered Employee commences participation in a Purchaser Benefit Plan) shall be taken into account for purposes of satisfying applicable deductible, coinsurance and maximum out-of-pocket provisions after the Closing Date, to the extent that such expenses are taken into account for the benefit of similarly situated employees of Purchaser. (c) Purchaser shall cause Company to honor all written contractual obligations of Company and its Subsidiaries to their respective current and former employees, directors and independent contractors, including, but not limited to, all obligations under employment, severance and consulting plans and arrangements and under all other Company-Only Plans to the extent disclosed on Section 3.11(a) of the Company Disclosure Schedule; provided that nothing herein shall limit the right of Purchaser or any of its Subsidiaries to terminate any particular plan or agreement in accordance with its terms. Notwithstanding the foregoing, for at least the one-year period following the Closing Date, Purchaser Seller shall continue to provide medical coverage under the Agway Inc. Medical/Dental Plan to Business Employees who were participating retirees in such plan as of the date hereof post-retirement benefits that are substantially comparable to the post-retirement benefits provided under Company-Only Plans as in effect for such retirees as of immediately prior to the Closing Date. (dc) Without limiting the generality of the final sentence of Section 10.10, nothing Except as otherwise specifically provided in this Section 6.55.4, express or implied, is intended to or the Seller shall confer upon any retain liability for all salary and other person including without limitation any employee or former employee, any right, benefit or remedy compensation and benefits of any nature whatsoever under or kind due to any Business Employee arising out of employment by reason of this Agreement and no provision of this Section 6.5 shall constitute an amendment of any Company Benefit Plan. (e) the Seller shall cause the Board of Directors of the Company (or the appropriate committee thereof) to take the necessary action to amend the Company-Only Plans and any Company sponsored employee benefit trusts or other funding vehicles (the “Company Benefit Trusts”), including without limitation those listed on Schedule 6.5(e) of the Company Disclosure Schedule, or take such other appropriate action, to ensure that for purposes of the Company-Only Plans and the Company Benefit Trusts, the transactions contemplated by this Agreement (either standing alone or together with any other event) will not constitute a “change of control” (or any derivation of such term) and that in no event shall the transactions contemplated by this Agreement (either standing alone or together with any other event) result in (i) the accelerated payment or vesting of any compensation or benefits under any Company-Only Plans, (ii) the right to receive severance or similar benefits under any Company-Only Plans, (iii) the funding of any Company Benefit Trusts, (iv) any limitation on the ability of the Company to amend or terminate any Company-Only Plan or Company Benefit Trust, or (v) any limitation on the Company’s right to receive a reversion of assets. Prior to adoption, Seller shall provide Purchaser with copies of such amendments and/or resolutions and the opportunity to comment on them. Prior to before the Closing Date, Seller and the Purchaser shall have ratified assume liability for all salary and other compensation and benefits of any kind earned on or after the amendments required Closing Date by this Section 6.5(e)any Business Employee arising out of employment by the Purchaser.

Employees; Employee Benefit Matters. (a) Following the Closing Date, Purchaser and Purchaser II shall maintain or cause provide to be maintained compensation opportunities, employee pension Retained Employees (as defined below) of CCM and welfare plans for the benefit of employees who are actively employed by the Company and its their Subsidiaries as of following the Closing Date (“Covered Employees”i) which, in the aggregate, are generally substantially comparable to those compensation opportunities and other employee, pension and welfare employee benefits that are made available no less favorable in the aggregate than the employee benefits provided to similarly similarly-situated employees of Purchaser or its Subsidiaries as applicable, provided, from time to time and (ii) base salaries and incentive compensation opportunities that in are no event shall any Covered Employee be eligible to participate in any closed or frozen plan of Purchaser or its Subsidiaries; provided, further, that until such time as Purchaser shall cause Covered Employees to participate less favorable in the benefit plans that are made available aggregate to similarly the base salaries and incentive compensation opportunities provided to similarly-situated employees of Purchaser or its Subsidiariesfrom time to time. (b) Sellers shall take all action necessary to ensure that each employee of CCM, the Covered Employees continued participation Company and their Subsidiaries who is not identified on Section 6.5(b) of the Disclosure Schedule and such other employees as Purchaser identifies to Sellers within two weeks of the date hereof, which in the benefit aggregate shall not be fewer than 125 employees and shall not be significantly different in category allocations than those set forth in Section 6.5(b) of the Disclosure Schedule (subject to such deletions as may be made by Purchaser without any substantive change to such category allocations and without decreasing such aggregate number of employees), is no longer employed by CCM, the Company or their respective Subsidiaries as of immediately prior to the Closing (such terminated employees, the "Non-Retained Employees"). Sellers shall cause each Non-Retained Employee to execute a release of all claims against CCM, the Company and their Subsidiaries to the extent such a release of claims is a condition for severance benefits under the applicable Business Employee Benefit Plan or Company Employee Benefit Plan under an agreement between the Sellers and such Non-Retained Employee and Sellers shall use reasonable efforts to seek a release of Purchaser and its Affiliates of such claims, provided that Sellers shall not be required to take any action or fail to take any action if doing so would be adverse to Sellers or any of its Affiliates following the Closing. Sellers shall retain all severance obligations under the Business Employee Benefit Plans and Company Employee Benefit Plans except to the extent Purchaser has any responsibility for the Schwab Soundview 2004 Severance Plan, subject to Section 6.5(j). Purchaser shall be responsible for all severance obligations related to any Retained Employees that arise as a result of the conduct of the Business or the Company Business or the conduct of the Purchaser or Purchaser II or any of their Affiliates following the Closing under Purchaser's applicable plans as in effect as of the date hereof. For purposes of this Agreement, "severance" shall include any notice or pay required to be provided in accordance with the WARN Act Workers Adjustment and Retraining Notification Act of 1988 (the WARN Act ) or any similar state or local statute. Purchaser shall use reasonable efforts to seek from each Retained Employee who is terminated by Purchaser prior to the one year anniversary of the Closing and is entitled to severance under Purchaser's severance plans a release of Sellers from any obligation to pay severance to such employees in respect of such termination, provided that Purchaser shall not be required to take any action or fail to take any action if doing so would be adverse to Purchaser or any of its Affiliates. (c) Purchaser shall indemnify and hold Sellers and their Affiliates harmless from and against all claims, reasonable expenses (including reasonable attorneys' fees), losses and liabilities relating to (A) the Retained Employees' (as defined below) employment with the Purchaser, Purchaser II and their Affiliates on or after the Closing Date to the extent arising as a result of the conduct of the business or the employment of the Retained Employees following the Closing; and (B) Purchaser's or Purchaser II's failure to comply with all applicable Laws and Regulations in connection with the employee selection process resulting in the selection of the Non-Retained Employees to the extent (i) such Non-Retained Employees are employees of CCM or any of its Subsidiaries (and not of the Company and its Subsidiaries shall be deemed to satisfy the foregoing provisions of this sentence. Notwithstanding the foregoingSubsidiaries), (i) each Covered Employee shall be eligible for severance benefits following the Closing Date solely under Purchaser’s severance plan and (ii) nothing herein shall obligate such selection is not the result of the assignment by Sellers or the Business or the Company Business prior to the Closing of categories of people to accounts on a basis that would cause Purchaser inadvertently to violate applicable Laws and Regulations; and (iii) with respect to employees who have accounts, such selection is not based on quantitative data. Sellers acknowledge that as of the date hereof Purchaser and Purchaser II have not received any employment records or demographic data with respect to any employees of the Company or CCM or any of its Subsidiaries to continue the employment of any Covered Employeetheir Subsidiaries. (bd) For purposes of their participation in the employee benefit plans, arrangements and agreements plans of Purchaser (the “and Purchaser Benefit Plans”)II, Purchaser and Purchaser II shall credit each Covered Employee employee of CCM, the Company and each their Subsidiaries who was identified by Purchaser and Purchaser II as provided in Section 6.5(b) and is an active employee immediately following the Closing or is on short-term disability, military or family leave and return to work at the conclusion of its Subsidiaries such leave (a "Retained Employee") with full credit for all service credited that would have been recognized by Seller or its Affiliates under the Company applicable Business Employee Benefit Plans (including service with or Company prior to Employee Benefit Plans before the Closing Date and, where applicable, service with prior or predecessor employers to the extent credit is given for such service under the Company Benefit Plans) for purposes of eligibility participation, eligibility, vesting, and benefit accrual, except for benefit accrual under any defined benefit or contribution pension plan; it being understood that no Retained Employee shall be permitted to participate and receive benefits, for purposes of vesting and, except under in the Purchaser's frozen defined benefit pension plans, for purposes of benefit accruals; provided that such recognition of service shall not operate to duplicate benefits with respect to Covered Employee and Covered Employees shall receive no credit for service under closed or frozen Purchaser Benefit Plansplan. With respect to Purchaser welfare Purchaser's health and dental benefit plans, Purchaser shall use commercially reasonable efforts to cause any such plan to waive any pre-existing condition exclusions and actively-at-work requirements thereunder under such plans with respect to the Covered Retained Employees and their eligible dependents (to the extent waived under the applicable Company welfare benefit plan and, with respect to life insurance coverage, up to the Covered Employee’s current level of insurabilitycorresponding Business Employee Benefit Plan) and ensure that any covered expenses incurred on or before the Closing Date (or, if later, the date on which such Covered Employee commences participation in a Purchaser Benefit Plan) shall be taken into account for purposes of satisfying applicable deductible, coinsurance and maximum out-of-pocket provisions after the Closing Date, Date to the extent that such expenses are taken into account for the benefit of similarly situated employees of Purchaser. (c) Purchaser . Sellers shall cause Company to honor all written contractual obligations retain any obligation for payment of Company and its Subsidiaries to their respective current and long or short-term disability claims arising from disabilities of any employees or former employees, directors and independent contractors, including, but not limited to, all obligations under employment, severance and consulting plans and arrangements and under all other Company-Only Plans to the extent disclosed on Section 3.11(a) employees of the Business or the Company Disclosure Schedule; provided Business that nothing herein shall limit the right of Purchaser or any of its Subsidiaries to terminate any particular plan or agreement in accordance with its terms. Notwithstanding the foregoing, for at least the one-year period following the Closing Date, Purchaser shall continue to provide to participating retirees as of the date hereof post-retirement benefits that are substantially comparable to the post-retirement benefits provided under Company-Only Plans as in effect for such retirees as of immediately occurred prior to the Closing Date. (d) Without limiting Date in accordance with the generality of the final sentence of Section 10.10, nothing in this Section 6.5, express or implied, is intended to or shall confer upon any other person including without limitation any employee or former employee, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement applicable Business Employee Benefit Plans and no provision of this Section 6.5 shall constitute an amendment of any Company Employee Benefit PlanPlans. (e) Seller Sellers shall cause CCM, the Board of Directors Company and their Subsidiaries to cease to be participating employers in any of the Business Employee Benefit Plans and Company Employee Benefit Plans effective immediately prior to the Closing, subject to the Closing unless such cessation is automatic under the terms of the applicable Business Employee Benefit Plan and Company Employee Benefit Plan. Sellers shall retain (and indemnify, defend and hold harmless Purchaser, Purchaser II and their Affiliates and their respective employees and directors from) all liabilities and obligations whatsoever related to or arising from (i) any employees or former employees of CCM, the Company, or any of their Subsidiaries who are not Retained Employees, including any severance or retention pay, except to the extent otherwise provided in Section 6.5(f) and (ii) any employment agreement entered into prior to the Closing by CCM, the Company or any of their Subsidiaries with any employees of CCM, the Company, or any of their Subsidiaries other than any employment agreement with any Retained Employee that is disclosed in the Disclosure Schedule, and (iii) any other matters for which Sellers have retained responsibility in Sections 6.5 and 6.6 of this Agreement. Prior to the Closing, Sellers will terminate the Business Employee Benefit Plans of CCM or any of its Subsidiaries. (f) Following the Closing, Sellers shall retain, and none of CCM, the Company or their Subsidiaries shall have, any liability or obligation arising from or related to the employment, or termination of employment, of any employee (or former employee) who is not a Retained Employee or any liability or obligation under or related to the appropriate committee thereofBusiness Employee Benefit Plans or the Company Employee Benefit Plans, except for (i) to take the necessary action to amend the Company-Only Company Employee Benefit Plans and any Company sponsored employee benefit trusts or other funding vehicles (the “Company Benefit Trusts”), including without limitation those listed specifically identified as such on Schedule 6.5(eSection 3.10(a) of the Disclosure Schedule and (ii) the obligation to reimburse Sellers for any amounts exceeding $550,000 owing as of the Closing to Non-Retained Employees in respect of production-based bonuses earned during the period beginning July 1, 2004 and ending on the Closing Date to the extent such amounts were derived pursuant to the formulas contained in the plans set forth in Section 6.5(f) of the Disclosure Schedule and were derived consistent with past practice it being understood that with respect to any pool allocations, Purchaser shall have the right to review such allocations in advance. Following the Closing, CCM, the Company Disclosure Schedule, or take such other appropriate action, to ensure that for and their respective Subsidiaries shall not have any Controlled Group Liability. For purposes of this Agreement, "Controlled Group Liability" shall mean any liability (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971 of the Company-Only Plans Code, and (iv) as a result of failure to comply with the Company Benefit Trustscontinuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code other than COBRA as set forth below. Sellers shall be responsible for providing or discharging any and all notifications, benefits and liabilities to employees and Governmental Entities required by the WARN Act or by any other applicable Laws and Regulations relating to plant closings or employee separations or other severance pay that are required to be provided before the Closing as a result of the transactions contemplated by this Agreement Agreement. Sellers shall retain all obligations with respect to continued coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (either standing alone or together with "COBRA") (and any other event) will not constitute a “change of control” (or any derivation of such term) similar state Laws and that in no event shall the transactions contemplated by this Agreement (either standing alone or together with any other event) result in (i) the accelerated payment or vesting of any compensation or benefits under any Company-Only PlansRegulations), (ii) the right to receive severance or similar benefits under any Company-Only Plans, (iii) the funding of any Company Benefit Trusts, (iv) any limitation on the ability Section 4980B of the Company to amend or terminate any Company-Only Plan or Company Benefit TrustCode, or (v) any limitation on the Company’s right to receive a reversion and Part 6 of assets. Prior to adoption, Seller shall provide Purchaser with copies Subtitle B of such amendments and/or resolutions Title I of ERISA and the opportunity regulations thereunder for all employees who are not Retained Employees, and Purchaser shall retain all obligations under COBRA with respect to comment on them. Prior to the Closing Date, Seller shall have ratified the amendments required by this Section 6.5(e)Retained Employees.

Employees; Employee Benefit Matters. (a) Following the Closing Date, Purchaser shall maintain or cause to be maintained compensation opportunities, employee pension and welfare benefit plans for the benefit of employees who are actively employed by the Company and its Subsidiaries as of on the Closing Date (“Covered Employees”) which, in the aggregate, are generally substantially comparable to those compensation opportunities and other employee, pension and welfare benefits employee benefit plans that are made available to similarly situated employees of Purchaser or its Subsidiaries (other than the Company and its Subsidiaries), as applicable, ; provided, that in no event shall any Covered Employee be eligible to participate in any closed or frozen plan of Purchaser or its Subsidiaries; provided, further, that until such time as Purchaser shall cause Covered Employees to participate in the benefit plans that are made available to similarly situated employees of Purchaser or its Subsidiaries (other than the Company and its Subsidiaries), the a Covered Employees Employee’s continued participation in the employee benefit plans of the Company and its Subsidiaries shall be deemed to satisfy the foregoing provisions of this sentence. Notwithstanding sentence (it being understood that participation in the foregoing, (i) Purchaser plans may commence at different times with respect to each Covered Employee shall be eligible for severance benefits following the Closing Date solely under Purchaser’s severance plan and (ii) nothing herein shall obligate Purchaser or any of its Subsidiaries to continue the employment of any Covered EmployeePlan). (b) For purposes of their participation in eligibility to participate, vesting and benefit accruals (except benefit accrual under any final average pay defined benefit pension plan) under the employee benefit plans, arrangements and agreements plans of Purchaser and its Subsidiaries providing benefits to any Covered Employees after the Closing Date (the “Purchaser Benefit New Plans”), Purchaser shall credit each Covered Employee shall be credited with his or her years of service with the Company and each of its Subsidiaries with full and their respective predecessors before the Closing Date, to the same extent as such Covered Employee was entitled, before the Closing Date, to credit for all such service credited under the any parallel Company Benefit Plans (including service with Company Plan in which such Covered Employee participated immediately prior to the Closing Date and, where applicable, service with prior or predecessor employers Date; provided that the foregoing shall not apply to the extent credit is given for such that its application would result in a duplication of benefits with respect to the same period of service under the Company Benefit Plans) for purposes of eligibility or with respect to participate and receive benefitsany closed or frozen plan. In addition, for purposes of vesting andeach New Plan providing medical, except under defined benefit pension plansdental, for purposes of benefit accruals; provided that such recognition of service shall not operate pharmaceutical and/or vision benefits to duplicate benefits with respect to any Covered Employee and Covered Employees shall receive no credit for service under closed or frozen Purchaser Benefit Plans. With respect to Purchaser welfare benefit plansEmployee, Purchaser shall use commercially reasonable best efforts to cause any such plan to waive any all pre-existing condition exclusions and actively-at-work requirements thereunder with respect of such New Plan to the Covered Employees be waived for such employee and their eligible dependents (to the extent his or her covered dependents, unless such conditions would not have been waived under the applicable comparable Company welfare benefit plan and, with respect Benefit Plan in which such employee participated immediately prior to life insurance coverage, up to the Covered Employee’s current level of insurability) and ensure that any covered expenses incurred on or before the Closing Date (or, if later, and Purchaser shall cause any eligible expenses incurred by such employee and his or her covered dependents during the portion of the plan year of the Company Benefit Plan ending on the date on which such Covered Employee commences employee’s participation in a Purchaser Benefit Plan) shall the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying applicable all deductible, coinsurance and maximum out-of-pocket provisions after requirements applicable to such employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan. (c) Prior to the Closing Date, Seller shall take all action necessary to ensure that effective as of the Closing Date, (i) any employee or other service provider who is employed by the Company or its Subsidiaries as of immediately prior to the Closing Date but who primarily provides services to or with respect to the business of (A) an Excluded Business or (B) Seller or any of its Affiliates other than the Company and its Subsidiaries (collectively, the “Excluded Employees”) is transferred from the Company and its Subsidiaries without any liability to the Company or its Subsidiaries and (ii) any employee or other service provider who is employed by the Seller or its Subsidiaries (other than the Company or its Subsidiaries) as of immediately prior to the Closing Date but who primarily provides services to or with respect to the Business is transferred to the Company or any of its Subsidiaries. From the date hereof through the Closing Date, Seller will not make any employment transfers that would result in a modification to whether a particular service provider is classified as primarily providing services to the Business. (d) Pursuant to the terms of the Transition Services Agreement, the Company or Purchaser, as applicable, will, at Seller’s expense (and at cost), administer the payroll and all HR administrative systems for Excluded Employees and all other employees of Seller and its Affiliates who are located in the United States or Canada and who participate in the employee benefit plans that are administered through the Company’s and its Subsidiaries’ payrolls and HR administrative systems prior to the Closing Date (collectively “Transitional Participants”) and will, at Seller’s expense (and at cost), provide employee benefits coverage to Transitional Participants (for Transitional Participants who are located in Canada, only payroll and HR administrative systems services) that is consistent with such coverage provided to Covered Employees under Section 6.4(a). Seller shall use reasonable best efforts to ensure that the provision of such transitional services ends on or promptly following the Closing Date, it being understood that to the extent that such expenses are taken into account for services continue following the Closing Date, such services will terminate no later than the 60thday following the Closing Date and in no event shall any Transitional Participants participate in any employee benefit plans of similarly situated employees of Purchaser. (c) Purchaser shall cause Company to honor all written contractual obligations of the Company and its Subsidiaries following the Closing Date other than health and welfare plans. Prior to the Closing Date, Seller shall take all actions necessary, including the adoption of plan amendments to ensure that effective as of the Closing Date, the participation of (i) the Excluded Employees and (ii) any former employees or service providers who would be Excluded Employees but for the fact that their respective current and former employees, directors and independent contractors, including, but not limited to, all obligations under employment, severance and consulting plans and arrangements and under all other employment or services were previously terminated (the “Former Excluded Employees”) in any Company-Only Plans terminates and all liabilities under such Plans in respect of the Excluded Employees and the Former Excluded Employees shall be transferred to, and be the sole responsibility of, Seller and its Affiliates (other than the Company and its Subsidiaries); provided that this sentence shall not apply to (i) participation in respect of benefits accrued by Excluded Employees or Former Excluded Employees in Company-Only Plans that are “qualified” under Section 401 of the Code and (ii) liabilities under Company-Only Plans that are healthcare plans incurred by Excluded Employees prior to the Closing Date to the extent disclosed fully accrued on the Closing Balance Sheet. For purposes of clause (ii) a medical, dental, vision and/or prescription drug benefit shall be considered incurred on the date when the services are rendered, the supplies are provided or medication is prescribed, and not when the condition arose. (e) For purposes of determining cash severance payments under the Buyer severance plan applicable to Covered Employees whose employment terminates prior to the first anniversary of the Closing Date, the cash severance payments payable to such Covered Employees shall be determined in accordance with the applicable cash severance formula used under the severance plan applicable to the Company or the Subsidiary employing such Covered Employee immediately prior to the Closing Date (which Company or Subsidiary severance plan is set forth on Section 3.11(a) of the Disclosure Schedules and a copy of which has been provided to Buyer). (f) Prior to the Closing Date, the parties will mutually develop and agree to the performance criteria to replace Company Disclosure Schedule; provided that nothing herein ROEC (return on economic capital) currently used to measure payment entitlement under the Company’s Long Term Incentive Plan. Such replacement criteria shall preserve, to the extent possible, the degree of incentive currently inhering in open performance periods under the current practices of such plan. The Seller will use good faith efforts to cause outstanding equity-based awards held by Covered Employees to fully vest on the Closing Date. (g) Nothing in this Section 6.4 shall be construed to limit the right of Purchaser or any of its Subsidiaries to terminate any particular plan or agreement in accordance with its terms. Notwithstanding the foregoing(including, for at least the one-year period following the Closing Date, Purchaser shall continue the Company and its Subsidiaries) to provide amend or terminate any Company Benefit Plan or other employee benefit plan, to participating retirees as the extent such amendment or termination is permitted by the terms of the date hereof post-retirement benefits that are substantially comparable applicable plan, nor shall anything in this Section 6.4 be construed to require the post-retirement benefits provided under Company-Only Plans as in effect Purchaser or any of its Subsidiaries (including, following the Closing Date, the Company and its Subsidiaries) to retain the employment of any particular Covered Employee for such retirees as any fixed period of immediately prior to time following the Closing Date. (dh) Without limiting the generality of Section 10.9, the final sentence provisions of Section 10.10, nothing in this Section 6.56.4 are solely for the benefit of the parties to this Agreement, express or implied, is intended to or shall confer upon any other person including without limitation any employee and no current or former employee, director or independent contractor or any rightother individual associated therewith shall be regarded for any purpose as a third-party beneficiary of the Agreement, benefit or remedy of any nature whatsoever under or by reason of this Agreement and no provision of this Section 6.5 nothing herein shall constitute be construed as an amendment of to any Company Benefit Plan. (e) Seller shall cause the Board of Directors of the Company (Plan or the appropriate committee thereof) to take the necessary action to amend the Company-Only Plans and any Company sponsored other employee benefit trusts or other funding vehicles (the “Company Benefit Trusts”), including without limitation those listed on Schedule 6.5(e) of the Company Disclosure Schedule, or take such other appropriate action, to ensure that plan for purposes of the Company-Only Plans and the Company Benefit Trusts, the transactions contemplated by this Agreement (either standing alone or together with any other event) will not constitute a “change of control” (or any derivation of such term) and that in no event shall the transactions contemplated by this Agreement (either standing alone or together with any other event) result in (i) the accelerated payment or vesting of any compensation or benefits under any Company-Only Plans, (ii) the right to receive severance or similar benefits under any Company-Only Plans, (iii) the funding of any Company Benefit Trusts, (iv) any limitation on the ability of the Company to amend or terminate any Company-Only Plan or Company Benefit Trust, or (v) any limitation on the Company’s right to receive a reversion of assets. Prior to adoption, Seller shall provide Purchaser with copies of such amendments and/or resolutions and the opportunity to comment on them. Prior to the Closing Date, Seller shall have ratified the amendments required by this Section 6.5(e)purpose.