Common use of Employment and Benefit Plans Clause in Contracts

Employment and Benefit Plans. (a) Following the Effective Time, ---------------------------- the Parent shall cause the Company and/or The Prudential Insurance Company of America ("PICA") to provide each then current employee of the Company who was an employee of the Company as of the Effective Time ("Company Employee") with benefits under employee benefit plans (as such term is defined in Section 3(3) of ERISA ("Benefit Plans")), that are similar to the benefits received by (i) similarly situated Company Employees under Benefit Plans sponsored by the Company immediately prior to the Effective Time subject to the terms and conditions of such Company Benefit Plans, as in effect from time to time, or (ii) similarly situated employees of the Parent under Benefit Plans sponsored by PICA on or after the Effective Time, subject to the terms and conditions of such PICA Benefit Plans, as in effect from time to time. Active service with the Company prior to the Effective Time shall be recognized for purposes of determining eligibility to participate in and vesting of benefits under (but not for purposes of determining benefit accrual under or eligibility to receive post-retirement welfare benefits under) the Benefit Plans of the Company or PICA on or after the Effective Time; provided, that active service with the Company -------- prior to the Effective Time shall not be recognized if such recognition of service would result in a duplication of benefits under the Benefit Plans of the Company or PICA. Nothing in this Agreement shall be construed as limiting in any way (i) the right of the Parent or the Company (as the case may be) to - terminate the employment of any Company Employee after the Effective Time or (ii) the right of PICA or the Company (as the case may be) to amend or terminate -- any Benefit Plan of PICA or the Company (including, without limitation, to change the level of benefits provided thereunder or the requirements for eligibility to participate thereunder) in accordance with the terms thereunder. (b) Following the acquisition of Shares pursuant to the Offer, and prior to the Effective Time, the Company shall take, by action of the Company's Board of Directors (or an appropriate committee thereof), all actions reasonably necessary and appropriate, in the opinion of the Purchaser, to ensure that any Company Employee who commences participation, on or after the Effective Time, in any Benefit Plan of PICA does not receive duplicate benefits under any Benefit Plan of the Company.

Employment and Benefit Plans. (a) Following the Effective Time, ---------------------------- the Parent shall cause the Company and/or The Prudential Insurance Company of America ("PICA") to provide each then current employee of the Company who was an employee of the Company as of the Effective Time ("Company Employee") with benefits under employee benefit plans (as such term is defined in Section 3(3) of ERISA ("Benefit Plans")), that are similar to the benefits received by (i) similarly situated Company Employees under Benefit Plans sponsored by the Company immediately prior to the Effective Time subject to the terms and conditions of such Company Benefit Plans, as in effect from time to time, or (ii) similarly situated employees of the Parent under Benefit Plans sponsored by PICA on or after the Effective Time, subject to the terms and conditions of such PICA Benefit Plans, as in effect from time to time. Active service with the Company prior to the Effective Time shall be recognized for purposes of determining eligibility to participate in and vesting of benefits under (but not for purposes of determining benefit accrual under or eligibility to receive post-retirement welfare benefits under) the Benefit Plans of the Company or PICA on or after the Effective Time; providedPROVIDED, that active service with the Company -------- prior to the Effective Time shall not be recognized if such recognition of service would result in a duplication of benefits under the Benefit Plans of the Company or PICA. Nothing in this Agreement shall be construed as limiting in any way (i) the right of the Parent or the Company (as the case may be) to - terminate the employment of any Company Employee after the Effective Time or (ii) the right of PICA or the Company (as the case may be) to amend or terminate -- any Benefit Plan of PICA or the Company (including, without limitation, to change the level of benefits provided thereunder or the requirements for eligibility to participate thereunder) in accordance with the terms thereunder. (b) Following the acquisition of Shares pursuant to the Offer, and prior to the Effective Time, the Company shall take, by action of the Company's Board of Directors (or an appropriate committee thereof), all actions reasonably necessary and appropriate, in the opinion of the Purchaser, to ensure that any Company Employee who commences participation, on or after the Effective Time, in any Benefit Plan of PICA does not receive duplicate benefits under any Benefit Plan of the Company.

Employment and Benefit Plans. (a) Following the Effective Time, ---------------------------- the Parent shall cause the Company and/or The Prudential Insurance Company of America ("PICA") to provide Purchaser agrees that each then current employee Key Employee and Managing Director of the Company who was an employee of continues employment with the Company as after the Closing Date shall be employed at the same rate of the Effective Time ("Company Employee") with benefits under employee benefit plans (as such term is defined in Section 3(3) of ERISA ("Benefit Plans")), that are similar to the benefits received by (i) similarly situated Company Employees under Benefit Plans sponsored by the Company salary provided immediately prior to the Effective Time subject Closing Date and shall be considered for a reasonable salary increase in the normal course of business on or about July 1, 2009. Except as specifically provided otherwise in this Section, Continuing Employees shall be eligible for benefits and incentive programs comparable to those made available by Purchaser to similarly situated employees of Purchaser, at a cost and on terms and conditions comparable to those provided to similarly situated employees of Purchaser; provided, however, that continuance on a transitional basis of the Company’s existing medical, dental, vision and Code Section 125 plans at the same cost and in accordance with the terms and conditions of such Company Benefit Plans, as plans in effect from time as of Closing shall not be deemed to timeviolate the terms of this Section. Nothing in this Agreement (i) shall require Purchaser or the Company to continue to employ any particular Company Employee following the Closing Date, or (ii) similarly situated employees except as specifically provided otherwise herein, shall alter or limit Purchaser’s ability to amend, modify, or terminate any benefit plan, program, agreement, or arrangement. (b) Immediately prior to Closing, the Company shall pay or cause to be paid to each employee of the Parent under Benefit Plans sponsored Company all vacation leave that has been accrued and unused by PICA on or such employees as of the Closing Date. On and after the Effective TimeClosing Date, subject to Continuing Employees shall accrue paid time off under the terms and conditions of such PICA Benefit Plans, Purchaser’s paid time off program (as in effect the same may be modified from time to time. Active service with the Company prior to the Effective Time shall be recognized for purposes of determining eligibility to participate in and vesting of benefits under (but not for purposes of determining benefit accrual under or eligibility to receive post-retirement welfare benefits under) the Benefit Plans of the Company or PICA on or after the Effective Time); provided, however, that active service with for the Company -------- portion of the calendar year 2009 on and after the Closing, in no event shall any Continuing Employee receive fewer days of paid time off (on an annualized basis) under such program than the number of days of paid time off such individual would have been entitled to under the Company’s vacation pay program as in effect immediately prior to Closing. In addition, for the Effective Time shall not be recognized if such recognition portion of service would result in a duplication of benefits under the Benefit Plans of the Company or PICA. Nothing in this Agreement shall be construed as limiting in any way (i) the right of the Parent or the Company (as the case may be) to - terminate the employment of any Company Employee calendar year 2009 on and after the Effective Time or (ii) the right of PICA or the Company (as the case may be) to amend or terminate -- any Benefit Plan of PICA or the Company (including, without limitation, to change the level of benefits provided thereunder or the requirements for eligibility to participate thereunder) in accordance with the terms thereunder. (b) Following the acquisition of Shares pursuant to the Offer, and prior to the Effective TimeClosing, the Company shall takemaintain seven (7) paid holidays, the identity of which shall be determined in good faith by action of the Company's Board of Directors (or an appropriate committee thereof), all actions reasonably necessary and appropriate, in the opinion of the Purchaser, to ensure that any Company Employee who commences participation, on or after the Effective Time, in any Benefit Plan of PICA does not receive duplicate benefits under any Benefit Plan of the Company. (c) Prior to the Closing, the Company shall transfer and assign plan sponsorship of the Profit Sharing Plan to Praesideo Management, LLC. Contemporaneous with such transfer and assignment of plan sponsorship of the Profit Sharing Plan, the Company shall also (i) resign as plan administrator of the Profit Sharing Plan and (ii) terminate itself as a party from any and all contracts, agreements, programs or arrangements with Rocky Mountain Employee Benefits, Inc. or any other person relating to services being performed with respect to the Profit Sharing Plan (each a “

Employment and Benefit Plans. (a) Prior to the Closing, the Seller shall, and shall cause its Affiliates, to take commercially reasonable efforts to cause all Business Employees not currently employed by the Company to be transferred to the Company (and Seller shall, and shall cause its Affiliates (other than the Company) to, assign, transfer and convey to the Company the rights and Liabilities (whether arising prior to, on or following the Closing Date) with respect to the employment of such Business Employees); provided, that the Parties understand and agree that it may be impossible or impracticable to effect the transfer of certain Business Employees prior to or at the Closing and that in such instance the transfer of such Business Employees shall be effected as soon as practicable thereafter consistent with and pursuant to Section 6.01(a) of the Disclosure Schedule; provided, that any and all costs associated with any such delay in transferring the Business Employees shall be covered by the Seller. (b) Following the Effective TimeClosing and until the first anniversary of the Closing, ---------------------------- the Parent Purchaser shall cause the Company and/or The Prudential Insurance Company of America ("PICA") to provide each then current employee of the Company individual who was an employee of the Company as of the Effective Time ("Company Employee") with benefits under employee benefit plans (as such term is defined in Section 3(3) of ERISA ("Benefit Plans")), that are similar to the benefits received by (i) similarly situated Company Employees under Benefit Plans sponsored employed by the Company immediately before the Closing and who continues employment (the “Transferred Employees”) with (i) annual base compensation (base salary or base wage, as applicable) that is no less favorable than the annual base compensation (base salary or base wage, as applicable) provided to such Transferred Employee immediately prior to the Closing, (ii) target cash incentive opportunities that are no less favorable than the target cash incentive opportunities provided to such Transferred Employee immediately prior to the Closing, (iii) target equity incentive opportunities that are no less favorable than those provided by the Purchaser to similarly situated employees, and (iv) other employee benefits and compensation (excluding severance payments and severance benefits) that are no less favorable in the aggregate to the other employee benefits and compensation (excluding severance payments and severance benefits) provided to such Transferred Employee immediately prior to the Closing. In addition, upon a termination of a Transferred Employee’s employment other than for cause prior to the first anniversary of the Closing, the Purchaser shall provide the severance payments and benefits as set forth on Section 6.01(b) of the Disclosure Schedule. Further, the Purchaser shall continue the annual bonus program applicable to the Transferred Employees for the remainder of the calendar year in which the Closing occurs and administer it in the ordinary course consistent with past practice and taking into account the determinations made prior to the Closing with respect to such annual bonus program or target amounts thereunder pursuant to Section 6.01(b) of the Disclosure Schedule. (c) The Seller shall, and shall cause its Affiliates (other than the Company) to, assign, transfer and convey to the Company all rights and Liabilities (whether arising prior to, on or following the Closing Date) of the Seller and any of such Affiliates under and in respect of the Seller Plans listed on Section 6.01(c) of the Disclosure Schedule (the “Specified Seller Plans”), and the Company shall, in each case, accept such assignment and assume and agree to discharge all such Liabilities. (d) Without limiting the generality of Section 6.01(b), from and after the Closing, the Purchaser shall honor all obligations under the Company Plans, including the Specified Seller Plans, in each case, in accordance with their terms as in effect immediately prior to the Closing, including with respect to any payments, benefits or rights arising as a result of the consummation of the transactions contemplated by this Agreement (either alone or in combination with any other event); provided, however, that nothing in this Section 6.01(d) shall prevent the Purchaser from amending or terminating such plans or agreements in accordance with their terms or applicable Law. (e) With respect to all plans maintained by the Purchaser (including any vacation, paid time-off and severance plans), for all purposes, including determining eligibility to participate, level of benefits, and vesting (but excluding benefit accruals), each Transferred Employee’s service with the Seller or any of its Subsidiaries (as well as service with any predecessor employer of the Seller or any such Subsidiary, to the extent service with the predecessor employer is recognized by the Seller or such Subsidiary) shall be treated as service with the Purchaser to the extent such service was recognized under the comparable Seller Plan or Company Plan immediately prior to the Closing; provided, however, that such service need not be recognized to the extent that such recognition would result in any duplication of benefits for the same period of service. (f) Effective Time as of the Closing Date, the Transferred Employees shall be eligible to participate in the medical, dental, and health plans that the employees of the applicable Affiliate of the Purchaser participate in immediately prior to the Closing Date. Without limiting the generality of Section 6.01(b), the Purchaser shall use reasonable best efforts to cause to be waived any pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods under any welfare benefit plan maintained by the Purchaser, in which Transferred Employees (and their eligible dependents) will be eligible to participate from and after the Closing, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Plan or Seller Plan immediately prior to the Closing. For the plan year that includes the Closing Date, the Purchaser shall use reasonable best efforts to recognize, or cause to be recognized, the dollar amount of all co-payments, deductibles and similar expenses incurred or paid by each Transferred Employee (and his or her eligible dependents) under a Seller Plan that is a group health plan during the portion of the plan year prior to the Closing Date for purposes of satisfying the corresponding deductible and co-payment limitations under the Purchaser group health plan in which they participate for the applicable plan year. (g) Following the Closing Date, the Purchaser shall cause (and take all actions necessary to cause) an “eligible retirement plan” (within the meaning of Section 401(a)(31) of the Code) of the Purchaser or any of its Affiliates (the “Purchaser 401(k) Plan”) to accept, in accordance with applicable Law, a rollover of the vested account balances (including earnings through the date of transfer) of such Transferred Employees under the applicable “eligible retirement plan” of the Seller (the “Seller 401(k) Plan”), if such rollover is elected in accordance with applicable Law and the terms of the Seller 401(k) Plan and Purchaser 401(k) Plan by such Transferred Employee. To the extent that Transferred Employees have loans under the Seller 401(k) Plan, prior to the Closing Date, the Purchaser will offer reasonable assistance to such Transferred Employees to minimize any hardship with respect to the timely repayment of such loans on or after the Closing Date, including if any Transferred Employee retains his or her vested account balances with the Seller 401(k) Plan, the timely payment to such Transferred Employee of an amount equal to any loan set up fee or loan maintenance fee for the duration of such loan. (h) The Seller agrees and acknowledges that the consummation of the transactions contemplated by this Agreement shall constitute a termination of employment under the equity plans of the Seller. Any outstanding equity award held by Transferred Employees will be treated in accordance with its terms and the terms of the Seller Plan applicable to such award and shall not, for the avoidance of doubt, be an obligation or Liability of the Purchaser, the Company or any of their Affiliates from and after the Closing. (i) From and after the Closing, the Purchaser shall pay, or cause one of its Affiliates (including the Company) to pay, to the applicable Transferred Employees in accordance with and subject to the terms and conditions of such Company Benefit Plansthe Specified Retention Bonus Agreements, as in effect from time to time, or (ii) similarly situated employees the portion of the Parent under Benefit Plans sponsored by PICA on Specified Retention Bonus Amounts payable to such Transferred Employees thereunder. To the extent that a Transferred Employee remains employed with the Purchaser (including the Company) through the retention period or after the Effective Timeapplicable installment payment date, and subject to the terms payment of any portion of the Specified Retention Bonus Amount to the Transferred Employee, the Purchaser may prepare and conditions deliver to the Seller an invoice setting forth the total amount of the Specified Retention Bonus Amount actually paid by the Purchaser (or its Affiliate) to the Transferred Employee, together with reasonably detailed supporting information, and the Seller shall (or cause one of its Affiliates to) pay to the Purchaser, by wire transfer of immediately available funds, within thirty (30) Business Days after receipt thereof, such PICA Benefit Plansamount of Specified Retention Bonus Amount actually paid by the Purchaser (or its Affiliate) to the Transferred Employee; provided that, without the prior written consent of the Seller (not to be unreasonably withheld), the Seller shall not be required to reimburse the Purchaser or any of its Affiliates (including the Company) for any Specified Retention Bonus Amount paid to any Transferred Employee who does not remain employed by the Company for the duration required under his or her applicable Specified Retention Bonus Agreement (including, for the avoidance of doubt, as in effect from time to time. Active service with a result of a resignation or termination of employment by the Company Purchaser or its Affiliates (including the Company) for any reason that occurs prior to the Effective Time shall be recognized for purposes of determining eligibility to participate in and vesting of benefits under (but not for purposes of determining benefit accrual under or eligibility to receive post-retirement welfare benefits under) the Benefit Plans end of the Company retention period or PICA on or after the Effective Time; provided, that active service with the Company -------- prior to the Effective Time shall not be recognized if such recognition of service would result in a duplication of benefits under the Benefit Plans of the Company or PICA. Nothing in this Agreement shall be construed as limiting in any way (i) the right of the Parent or the Company (as the case may be) to - terminate the employment of any Company Employee after the Effective Time or (ii) the right of PICA or the Company (as the case may be) to amend or terminate -- any Benefit Plan of PICA or the Company (including, without limitation, to change the level of benefits provided thereunder or the requirements for eligibility to participate thereunder) in accordance with the terms thereunderapplicable installment date). (b) Following the acquisition of Shares pursuant to the Offer, and prior to the Effective Time, the Company shall take, by action of the Company's Board of Directors (or an appropriate committee thereof), all actions reasonably necessary and appropriate, in the opinion of the Purchaser, to ensure that any Company Employee who commences participation, on or after the Effective Time, in any Benefit Plan of PICA does not receive duplicate benefits under any Benefit Plan of the Company.

Employment and Benefit Plans. (a) Following If the Effective TimeClosing occurs, ---------------------------- from the Closing Date until the earlier of January 1, 2009 and the first Final Earnout Amount Determination Date on which it is determined that no Earnout Amount is payable, Parent shall will cause the Company and/or The Prudential Insurance Company of America ("PICA") to provide each then current employee of the Company who was an employee of the Company as of the Effective Time ("Company Employee") with benefits under employee benefit plans (as such term is defined in Section 3(3) of ERISA ("Benefit Plans")), that are similar to the benefits received by (i) similarly situated Company Employees under Benefit Plans sponsored Persons employed by the Company immediately prior to the Effective Time subject who continue such employment following the Effective Time (collectively, the "Employees"), except as otherwise consented to by the terms Stockholder Representative, (i) compensation at the general compensation levels prevailing as of the Effective Time and conditions of such Company Benefit Plans, as in effect from time to time, or (ii) benefits that are substantially comparable in the aggregate to the benefits by the benefit plans listed in Section 6.3 of the Company Disclosure Schedule). If the Closing occurs, for all purposes under the employee benefit plans of Parent and its Affiliates providing benefits to any Employee after the Effective Time (the "New Plans"), each Employee will receive credit for his or her service with the Company and its Affiliates before the Effective Time (including predecessor or acquired entities or any other entities for which the Company and its Affiliates have given credit for prior service), for purposes of eligibility, vesting and benefit accrual (but not (i) for purposes of eligibility for subsidized early retirement benefits, (ii) for purposes of benefit accrual under defined benefit pension plans, and (iii) for any new program for which credit for benefit accrual for service prior to the effective date of such program is not given to similarly situated employees of Parent other than the Parent under Benefit Plans sponsored by PICA on or after Employees) to the same extent as such Employee was entitled, before the Effective Time, subject to credit for such service under any similar or comparable Company benefit plan (except to the terms and conditions of extent such PICA Benefit Plans, as in effect from time to time. Active service with the Company prior to the Effective Time shall be recognized for purposes of determining eligibility to participate in and vesting of benefits under (but not for purposes of determining benefit accrual under or eligibility to receive post-retirement welfare benefits under) the Benefit Plans of the Company or PICA on or after the Effective Time; provided, that active service with the Company -------- prior to the Effective Time shall not be recognized if such recognition of service credit would result in a duplication of benefits under accrual of benefits). Notwithstanding the Benefit Plans of the Company or PICA. Nothing in this Agreement shall be construed as limiting in any way (i) the right of the foregoing, if requested by Parent or the Company (as the case may be) to - terminate the employment of any Company Employee after the Effective Time or (ii) the right of PICA or the Company (as the case may be) to amend or terminate -- any Benefit Plan of PICA or the Company (including, without limitation, to change the level of benefits provided thereunder or the requirements for eligibility to participate thereunder) in accordance with the terms thereunder. (b) Following the acquisition of Shares pursuant to the Offer, and at least 5 days prior to the Effective TimeClosing Date, the Company shall take, agrees to adopt board resolutions terminating its 401(k) plan immediately prior to Closing Date. Parent agrees not to make such a request unless materials delivered by action of the Company's Board of Directors (or an appropriate committee thereof), all actions reasonably necessary and appropriate, in the opinion of the Purchaser, to ensure that any Company Employee who commences participation, on or after the Effective Time, in any Benefit Plan signing of PICA does not receive duplicate benefits under any Benefit Plan of the Companythis Agreement evidence previously undisclosed liabilities.