Common use of Employment and Employee Benefits Clause in Contracts

Employment and Employee Benefits. Pursuant to the Merger Agreement, except as otherwise provided in an individual employment agreement or any collective bargaining agreement, for a period of two years following the Effective Time, the Surviving Corporation will provide compensation (including salary, cash bonus, commissions, and other incentives, but not including equity incentives) and benefits to each individual who is employed by the Company or a Company Subsidiary as of the Effective Time (each, a “Company Employee”) that are no less favorable in the aggregate than the levels of such compensation and benefits provided to such Company Employees by the Company immediately before the Effective Time, provided, however, that such compensation and benefits provided by the Company immediately before the Effective Time will be determined exclusive of any right to purchase Shares or equity incentive awards or cash bonuses awarded under the Company’s profit-sharing plan. The Merger Agreement provides that, as of and after the Effective Time, the Surviving Corporation will credit each non-union Company Employee for purposes of eligibility, vesting and benefit accrual for all of the Company Employee’s service with the Company and the Company’s Subsidiaries and their respective predecessor entities, if any, under any and all employee compensation and incentive plans, and under any and 37 Table of Contents all benefit plans, programs, policies and arrangements (including vacation and leave of absence policies), maintained for the benefit of Company Employees as of and after the Effective Time by the Surviving Corporation or its Affiliates (each, a “Surviving Corporation Plan”) to the extent such service was recognized for such purpose by the Company Plan (but not for purposes of benefit accrual under a defined benefit pension plan or long-term incentive plan or to the extent that such credit would result in a duplication of benefits). With respect to each Surviving Corporation Plan that is a “welfare benefit plan” (as defined in Section 3(1) of ERISA), the Surviving Corporation will: (i) cause there to be waived any pre-existing condition or eligibility limitations except to the extent such limitations as to preexisting conditions or eligibility were applicable to a Company Employee under a Company Plan that is a welfare benefit plan and (ii) give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed or reimbursable to, Company Employees under similar Company Plans for the calendar year in which the Effective Time occurs. Without limiting the foregoing, the Surviving Corporation shall permit each Company Employee who satisfied the eligibility requirements of the Company’s 401(k) plan to participate in the 401(k) plan of the Surviving Corporation immediately following the Effective Time. The Merger Agreement further provides that, upon the termination of employment from Parent or its Subsidiaries (or their successors) of a Company Employee (i) who is not employed pursuant to a collective bargaining agreement and (ii) who would have been entitled to post-retirement medical and life insurance benefits under the programs of the Company and the Company Subsidiaries as in effect as of the date hereof if the employment of such individual with the Company and the Company Subsidiaries terminated as of the date hereof (such Company Employee, a “Currently Eligible Retiree”) or within eighteen months of the date hereof (such Company Employee, a “Future Eligible Retiree”), the Surviving Corporation will provide to each Currently Eligible Retiree and Future Eligible Retiree, upon their respective termination of employment with Parent and its Subsidiaries (or their successors), post-retirement medical and life insurance benefits substantially identical to those provided from time to time to otherwise similarly situated retirees receiving such benefits under the programs of the Company or a Company Subsidiary as of the date hereof (treating service after the Closing with Parent or its Subsidiaries (or their successors) as service with the Company); provided that the foregoing shall not prohibit the amendment or termination of such benefits if such benefits are similarly amended or terminated for all current or former employees of the Company and the Company Subsidiaries or for only current employees who are not Currently Eligible Retirees or Future Eligible Retirees. Pursuant to the Merger Agreement, from and after the Effective Time, the Surviving Corporation will honor, in accordance with its terms and conditions, (i) each collective bargaining agreement to which the Company or any Company Subsidiary is a party, (ii) each existing employment, change in control, severance and termination protection plan, policy or agreement of or between the Company or any Company Subsidiary and any officer, director or employee of the Company that is disclosed on the Company Disclosure Schedule, (iii) all existing obligations and/or accrued benefits under any employee benefit plan, policy, program or arrangement of the Company or any Company Subsidiary that are disclosed on the Company Disclosure Schedule, and (iv) except as otherwise provided in an individual employment agreement, all obligations and/or accrued benefits under all plans, programs or agreements of the Company or any Company Subsidiary that provide for bonuses that are disclosed on the Company Disclosure Schedule. Nothing provided in the Merger Agreement will create any third-party beneficiary rights in any employee or former employee of the Company in respect of continued employment (or resumed employment) with Parent or the Surviving Corporation. Nothing contained in the Merger Agreement will preclude Parent or the Surviving Corporation from terminating the employment of any Company Employee or changing the terms and conditions of employment applicable to any Company Employee at any time and for any reason to the extent permitted by applicable Law. Nothing contained in the Merger Agreement will (i) amend, or be deemed to amend, any Company Plan, (ii) provide any Person not a party to the Merger Agreement with any right, benefit or remedy with regard to any Company Plan or a right to enforce any provision of the Merger Agreement, or (iii) except as provided in the Merger Agreement, limit in any way the Surviving Corporation’s ability to amend or terminate any Company Plan at any time in accordance with its terms and applicable law.

Employment and Employee Benefits. Pursuant to the Merger Agreement, except as otherwise provided in an individual employment agreement Xxxxx has agreed that it will, or any collective bargaining agreementwill cause the Surviving Corporation to, for a period of two years one year following the Closing, provide to each employee of CoLucid who continues employment with Lilly or the Surviving Corporation during such one-year period (a “Continuing Employee”): (i) the same salary or hourly wage rate provided to such Continuing Employee immediately prior to the Effective Time, ; (ii) the Surviving Corporation will provide compensation same short-term (including salary, cash bonus, commissions, and other incentives, but not including equity incentivesannual or more frequent) and benefits target bonus opportunity provided to each individual who is employed by the Company or a Company Subsidiary as of such Continuing Employee immediately prior to the Effective Time Time; and (eachiii) benefits (excluding equity and equity-based awards and change in control plans, a “Company Employee”programs or arrangements) that are no less favorable in the aggregate than the levels of such compensation and benefits substantially comparable to those provided to such Company Employees by the Company immediately before the Effective Time, provided, however, that such compensation and benefits provided by the Company immediately before the Effective Time will be determined exclusive of any right to purchase Shares or equity incentive awards or cash bonuses awarded Continuing Employee under the Company’s profit-sharing plan. The Merger Agreement provides that, as of and after the Effective Time, the Surviving Corporation will credit each non-union Company Employee for purposes of eligibility, vesting and benefit accrual for all of the Company Employee’s service with the Company and the Company’s Subsidiaries and their respective predecessor entities, if any, under any and all employee compensation and incentive plans, and under any and 37 Table of Contents all benefit plans, programs, policies policies, agreements and arrangements (including vacation and leave of absence policies), maintained for the benefit of Company Employees as of and after the Effective Time by the Surviving Corporation or its Affiliates (each, a “Surviving Corporation Plan”) CoLucid in effect immediately prior to the extent such service was recognized for such purpose by the Company Plan (but not for purposes of benefit accrual under a defined benefit pension plan or long-term incentive plan or to the extent that such credit would result in a duplication of benefits). With respect to each Surviving Corporation Plan that is a “welfare benefit plan” (as defined in Section 3(1) of ERISA), the Surviving Corporation will: (i) cause there to be waived any pre-existing condition or eligibility limitations except to the extent such limitations as to preexisting conditions or eligibility were applicable to a Company Employee under a Company Plan that is a welfare benefit plan and (ii) give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed or reimbursable to, Company Employees under similar Company Plans for the calendar year in which the Effective Time occurs. Without limiting the foregoing, the Surviving Corporation shall permit each Company Employee who satisfied the eligibility requirements of the Company’s 401(k) plan to participate in the 401(k) plan of the Surviving Corporation immediately following the Effective Time. The Nothing contained in the Merger Agreement further provides that, upon will be construed as precluding the termination of employment Surviving Corporation from Parent or its Subsidiaries (or their successors) of a Company Employee (i) who is not employed pursuant to a collective bargaining agreement and (ii) who would have been entitled to post-retirement medical and life insurance benefits under the programs of the Company and the Company Subsidiaries as in effect as of the date hereof if terminating the employment of such individual with the Company and the Company Subsidiaries terminated as of the date hereof (such Company Employee, a “Currently Eligible Retiree”) or within eighteen months of the date hereof (such Company Employee, a “Future Eligible Retiree”), the Surviving Corporation will provide to each Currently Eligible Retiree and Future Eligible Retiree, upon their respective termination of employment with Parent and its Subsidiaries (or their successors), post-retirement medical and life insurance benefits substantially identical to those provided from time to time to otherwise similarly situated retirees receiving such benefits under the programs of the Company or a Company Subsidiary as of the date hereof (treating service after the Closing with Parent or its Subsidiaries (or their successors) as service with the Company); provided that the foregoing shall not prohibit the amendment or termination of such benefits if such benefits are similarly amended or terminated any Continuing Employee for all current or former employees of the Company and the Company Subsidiaries or for only current employees who are not Currently Eligible Retirees or Future Eligible Retireesany lawful reason. Pursuant to the Merger Agreement, from and after the Effective Time, Lilly has agreed that it will honor and will cause the Surviving Corporation to honor all employee benefit plans of CoLucid (excluding the Equity Plans and the ESPP that will honor, be terminated at or prior to the Effective Time in accordance with its the Merger Agreement), in each case in accordance with their terms and conditionsas in effect immediately before the Effective Time, (i) each collective bargaining agreement to which the Company or any Company Subsidiary is a party, (ii) each existing employment, change in control, severance and termination protection plan, policy or agreement of or between the Company or any Company Subsidiary and any officer, director or employee of the Company except that is disclosed on the Company Disclosure Schedule, (iii) all existing obligations and/or accrued benefits under any employee benefit plan, policy, program or arrangement of the Company or any Company Subsidiary that are disclosed on the Company Disclosure Schedule, and (iv) except as otherwise provided in an individual employment agreement, all obligations and/or accrued benefits under all plans, programs or agreements of the Company or any Company Subsidiary that provide for bonuses that are disclosed on the Company Disclosure Schedule. Nothing provided in the Merger Agreement will create any third-party beneficiary rights in any employee does not prevent the amendment or former employee of the Company in respect of continued employment (or resumed employment) with Parent or the Surviving Corporation. Nothing contained in the Merger Agreement will preclude Parent or the Surviving Corporation from terminating the employment termination of any Company Employee specific employee benefit plan or changing the terms and conditions of employment applicable to any Company Employee at any time and for any reason to the extent permitted by applicable Law. Nothing contained in the Merger Agreement will (i) amend, or be deemed to amend, any Company Plan, (ii) provide any Person not a party to the Merger Agreement with any right, benefit or remedy with regard to any Company Plan or a right to enforce any provision of the Merger Agreement, or (iii) except as provided in the Merger Agreement, limit in any way the Surviving Corporation’s ability to amend or terminate any Company Plan at any time contract in accordance with its the terms thereof. The Merger Agreement provides that for purposes of vesting, participation, eligibility for vacation pay and applicable law.level of benefits under the employee benefit plans of Lilly providing benefits to any Continuing Employees after the

Employment and Employee Benefits. Pursuant (a) 0xx Xxxxxx shall establish and adopt, effective January 1, 2019, a safe harbor 401(k) plan meeting the requirements of Code Section 401(k)(12)(B) and 401(m)(11) (the “8th Avenue Savings Investment Plan”) and require, provided that there is no qualification error with respect to the Merger Agreement, except as otherwise provided in an individual employment agreement or any collective bargaining agreement, for a period of two years following the Effective Time, the Surviving Corporation will provide compensation Post Savings Investment Plan (including salary, cash bonus, commissions, and other incentives, but not including equity incentives) and benefits to each individual who is employed by the Company or a Company Subsidiary as of the Effective Time (each, a “Company EmployeePost SIP”) that are no less favorable in has not been remedied through the aggregate than Employee Plans Compliance Resolution System, that the levels trust that funds the 8th Avenue Savings Investment Plan shall accept a direct trust-to-trust transfer of the account balances of such compensation and benefits provided eligible Company employees from the trust that funds the Post SIP subject to such Company Employees by the Company immediately before the Effective Time, provided, however, that such compensation and benefits provided by the Company immediately before the Effective Time will be determined exclusive “anti-cutback” rules of any right to purchase Shares or equity incentive awards or cash bonuses awarded under the Company’s profit-sharing plan. The Merger Agreement provides that, as of and after the Effective Time, the Surviving Corporation will credit each non-union Company Employee for purposes of eligibility, vesting and benefit accrual for all Section 411(d)(6) of the Company Employee’s service with the Company and the Company’s Subsidiaries and their respective predecessor entities, if any, under any and all employee compensation and incentive plans, and under any and 37 Table of Contents all benefit plans, programs, policies and arrangements (including vacation and leave of absence policies), maintained for the benefit of Company Employees as of and after the Effective Time by the Surviving Corporation or its Affiliates (each, a “Surviving Corporation Plan”) to the extent such service was recognized for such purpose by the Company Plan (but not for purposes of benefit accrual under a defined benefit pension plan or long-term incentive plan or to the extent that such credit would result in a duplication of benefits). With respect to each Surviving Corporation Plan that is a “welfare benefit plan” (as defined in Section 3(1) of ERISA), the Surviving Corporation will: (i) cause there to be waived any pre-existing condition or eligibility limitations except to the extent such limitations as to preexisting conditions or eligibility were applicable to a Company Employee under a Company Plan that is a welfare benefit plan and (ii) give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed or reimbursable to, Company Employees under similar Company Plans for the calendar year in which the Effective Time occursCode. Without limiting the foregoing, 0xx Xxxxxx shall ensure that the Surviving Corporation terms of the 8th Avenue Savings Investment Plan proposed to be adopted in accordance with the immediately preceding sentence may not differ significantly from those of the Post SIP to the extent that: (i) the difference in such terms would result in the service provider(s) selected for the 0xx Xxxxxx Savings Investment Plan not being able to establish the plan and accept contributions into the accounts for the 8th Avenue Savings Investment Plan effective January 1, 2019, as determined by such service provider(s); or (ii) the difference in such proposed terms would pose a risk, in the reasonable assessment of Post, that the Post SIP may fail any applicable nondiscrimination testing under the Code. As soon as feasibly possible and without unreasonable delay 0xx Xxxxxx shall submit an application to the IRS seeking a favorable determination or opinion letter from the IRS that the 8th Avenue Savings and Investment Plan is tax-qualified under Section 401(a) of the Code. Upon the adoption of the 8th Avenue Savings Investment Plan, 8th Avenue shall permit each and facilitate the participation of eligible Company Employee who satisfied the eligibility requirements employees, who, as of the Company’s 401(k) plan December 31, 2018, were eligible to participate in the 401(k) plan of the Surviving Corporation immediately following the Effective Time. The Merger Agreement further provides that, upon the termination of employment from Parent or its Subsidiaries (or their successors) of a Company Employee (i) who is not employed pursuant to a collective bargaining agreement and (ii) who would have been entitled to post-retirement medical and life insurance benefits under the programs of the Company and the Company Subsidiaries as in effect as of the date hereof if the employment of such individual with the Company and the Company Subsidiaries terminated as of the date hereof (such Company Employee, a “Currently Eligible Retiree”) or within eighteen months of the date hereof (such Company Employee, a “Future Eligible Retiree”), the Surviving Corporation will provide to each Currently Eligible Retiree and Future Eligible Retiree, upon their respective termination of employment with Parent and its Subsidiaries (or their successors), post-retirement medical and life insurance benefits substantially identical to those provided from time to time to otherwise similarly situated retirees receiving such benefits under the programs of the Company or a Company Subsidiary as of the date hereof (treating service after the Closing with Parent or its Subsidiaries (or their successors) as service with the Company); provided that the foregoing shall not prohibit the amendment or termination of such benefits if such benefits are similarly amended or terminated for all current or former employees of the Company and the Company Subsidiaries or for only current employees who are not Currently Eligible Retirees or Future Eligible Retirees. Pursuant to the Merger Agreement, from and after the Effective Time, the Surviving Corporation will honor, in accordance with its terms and conditions, (i) each collective bargaining agreement to which the Company or any Company Subsidiary is a party, (ii) each existing employment, change in control, severance and termination protection plan, policy or agreement of or between the Company or any Company Subsidiary and any officer, director or employee of the Company that is disclosed on the Company Disclosure Schedule, (iii) all existing obligations and/or accrued benefits under any employee benefit plan, policy, program or arrangement of the Company or any Company Subsidiary that are disclosed on the Company Disclosure Schedule, and (iv) except as otherwise provided in an individual employment agreement, all obligations and/or accrued benefits under all plans, programs or agreements of the Company or any Company Subsidiary that provide for bonuses that are disclosed on the Company Disclosure Schedule. Nothing provided in the Merger Agreement will create any third-party beneficiary rights in any employee or former employee of the Company in respect of continued employment (or resumed employment) with Parent or the Surviving Corporation. Nothing contained in the Merger Agreement will preclude Parent or the Surviving Corporation from terminating the employment of any Company Employee or changing the terms and conditions of employment applicable to any Company Employee at any time and for any reason to the extent permitted by applicable Law. Nothing contained in the Merger Agreement will (i) amend, or be deemed to amend, any Company Plan, (ii) provide any Person not a party to the Merger Agreement with any right, benefit or remedy with regard to any Company Plan or a right to enforce any provision of the Merger Agreement, or (iii) except as provided in the Merger Agreement, limit in any way the Surviving Corporation’s ability to amend or terminate any Company Plan at any time in accordance with its terms and applicable lawPost SIP.

Employment and Employee Benefits. Pursuant (a) Buyer covenants and agrees to the Merger Agreementprovide, except as otherwise provided in an individual employment agreement or any collective bargaining agreement, for a period of two years following the Effective Time, cause the Surviving Corporation will provide compensation (including salaryCompany and its Subsidiaries to provide, cash bonus, commissions, and other incentives, but not including equity incentives) and benefits to each individual who is employed by employee of the Company or a Company Subsidiary as its Subsidiaries immediately prior to the Closing who remains an employee of the Effective Time Surviving Company or its Subsidiaries following the Closing (each, a “Company Employee”) (i) for a period of one (1) year following the Closing Date (the “Continuation Period”), (A) an annual base salary or annual base wage rate that is no less favorable than the annual base salary or annual base wage rate provided to such Company Employee immediately prior to the Closing Date, and (B) defined contribution and health and welfare benefits (other than severance benefits) that are substantially comparable, in the aggregate, to those provided to similarly-situated employees of Buyer; provided, that, with respect to each Company Employee, Buyer shall be deemed to comply with Section 8.10(a)(i)(B) if Buyer causes (x) the Surviving Company and its Subsidiaries to continue to provide health and welfare benefits (other than severance benefits) under the applicable Company Benefit Plans in effect immediately prior to the Closing Date until such Company Employee begins participating in the corresponding plan, program or arrangement of Buyer and (y) the Company Employees to commence participation in Buyer’s defined contribution plan as soon as reasonably practicable following the Closing Date and (ii) for the 2014 performance period, cash target incentive compensation opportunities (for the avoidance for doubt, excluding equity incentives) that are no less favorable in the aggregate than the levels cash target incentive compensation opportunities (for the avoidance of such compensation and benefits doubt, excluding equity incentives) provided to such Company Employees by Employee immediately prior to the Closing Date. In addition, during the Continuation Period, Buyer shall provide, or shall cause the Surviving Company immediately before and its Subsidiaries to provide, to each Company Employee whose employment is terminated without “cause” (determined in the Effective Time, provided, however, that such compensation and benefits provided by the Company immediately before the Effective Time will be determined exclusive discretion of any right to purchase Shares or equity incentive awards or cash bonuses awarded under the Company’s profit-sharing plan. The Merger Agreement provides that, as of and after the Effective TimeBuyer, the Surviving Corporation will credit each non-union Company Employee for purposes of eligibility, vesting and benefit accrual for all of the Company Employee’s service with the Company and the Company’s Subsidiaries and their respective predecessor entities, if any, under any and all employee compensation and incentive plans, and under any and 37 Table of Contents all benefit plans, programs, policies and arrangements (including vacation and leave of absence policies), maintained for the benefit of Company Employees as of and after the Effective Time by the Surviving Corporation or its Affiliates (each, a “Surviving Corporation Plan”) to the extent such service was recognized for such purpose by the Company Plan (but not for purposes of benefit accrual under a defined benefit pension plan or long-term incentive plan or to the extent that such credit would result in a duplication of benefits). With respect to each Surviving Corporation Plan that is a “welfare benefit plan” (as defined in Section 3(1) of ERISA), the Surviving Corporation will: (i) cause there to be waived any pre-existing condition or eligibility limitations except to the extent such limitations as to preexisting conditions or eligibility were applicable to a Company Employee under a Company Plan that is a welfare benefit plan and (ii) give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed or reimbursable to, Company Employees under similar Company Plans for the calendar year in which the Effective Time occurs. Without limiting the foregoing, the Surviving Corporation shall permit each Company Employee who satisfied the eligibility requirements of the Company’s 401(k) plan to participate in the 401(k) plan of the Surviving Corporation immediately following the Effective Time. The Merger Agreement further provides that, upon the termination of employment from Parent or its Subsidiaries (or their successors) of a Company Employee (i) who is not employed pursuant to a collective bargaining agreement and (ii) who would have been entitled to post-retirement medical and life insurance benefits under the programs of the Company and the Company Subsidiaries as in effect as of the date hereof if the employment of such individual with the Company and the Company Subsidiaries terminated as of the date hereof (such Company Employee, a “Currently Eligible Retiree”) or within eighteen months of the date hereof (such Company Employee, a “Future Eligible Retiree”), the Surviving Corporation will provide to each Currently Eligible Retiree and Future Eligible Retiree, upon their respective termination of employment with Parent and its Subsidiaries (or their successors), post-retirement medical and life insurance benefits substantially identical to those provided from time to time to otherwise similarly situated retirees receiving such benefits under the programs of the Company or a Company Subsidiary thereof, as of applicable) during the date hereof (treating service after the Closing with Parent or its Subsidiaries (or their successors) as service with the Company); provided that the foregoing shall not prohibit the amendment or termination of such benefits if such benefits are similarly amended or terminated for all current or former employees of the Company and the Company Subsidiaries or for only current employees who are not Currently Eligible Retirees or Future Eligible Retirees. Pursuant to the Merger Agreement, from and after the Effective TimeContinuation Period, the Surviving Corporation will honor, in accordance with its terms and conditions, (i) each collective bargaining agreement to which the Company or any Company Subsidiary is a party, (ii) each existing employment, change in control, cash severance and termination protection plan, policy or agreement of or between the Company or any Company Subsidiary and any officer, director or employee of the Company that is disclosed benefits described on the Company Disclosure Schedule, (iii) all existing obligations and/or accrued benefits under any employee benefit plan, policy, program or arrangement of the Company or any Company Subsidiary that are disclosed on the Company Disclosure Schedule, and (iv) except as otherwise provided in an individual employment agreement, all obligations and/or accrued benefits under all plans, programs or agreements of the Company or any Company Subsidiary that provide for bonuses that are disclosed on the Company Disclosure Schedule. Nothing provided in the Merger Agreement will create any third-party beneficiary rights in any employee or former employee of the Company in respect of continued employment (or resumed employment) with Parent or the Surviving Corporation. Nothing contained in the Merger Agreement will preclude Parent or the Surviving Corporation from terminating the employment of any Company Employee or changing the terms and conditions of employment applicable to any Company Employee at any time and for any reason to the extent permitted by applicable Law. Nothing contained in the Merger Agreement will (i) amend, or be deemed to amend, any Company Plan, (ii) provide any Person not a party to the Merger Agreement with any right, benefit or remedy with regard to any Company Plan or a right to enforce any provision of the Merger Agreement, or (iii) except as provided in the Merger Agreement, limit in any way the Surviving Corporation’s ability to amend or terminate any Company Plan at any time in accordance with its terms and applicable lawSchedule 8.10(a).

Employment and Employee Benefits. Pursuant (a) Purchaser covenants and agrees that each employee of the Company or any of the Subsidiaries immediately prior to the Merger AgreementClosing shall, except while employed during the one (1) year period beginning on the Closing Date, receive at least the same base salary or hourly wage rate as otherwise provided to such employee immediately prior to the Closing; provided, that Purchaser may adjust such base salary or hourly wage to reasonably reflect any change in an individual responsibilities or based upon such employee’s performance following the Closing. Such individuals who continue their employment agreement with the Company or any collective bargaining agreement, for the Subsidiaries following the Closing Date are hereinafter referred to as the “Continuing Employees.” For a period of two years one (1) year following the Effective TimeClosing Date or such longer period of time required by applicable Law (the “Benefit Period”), the Surviving Corporation will provide compensation (including salary, cash bonus, commissions, and other incentives, but not including equity incentives) and benefits to each individual who is employed by Purchaser shall cause the Company or a Company Subsidiary as and the Subsidiaries to provide Continuing Employees in each country with employee benefits that are substantially comparable, in the aggregate, to those provided to similarly situated employees of the Effective Time (eachPurchaser or those provided to such Continuing Employees immediately prior to the Closing Date, a “Company Employee”) as determined by Purchaser in its sole discretion; provided, however, that, for the Benefit Period, each Continuing Employee shall be eligible to receive severance benefits that are no less favorable in the aggregate than the levels of such compensation and severance benefits provided to such Company Employees by the Company immediately before the Effective Time, described on Schedule 8.12(a); provided, howeverfurther, that such compensation and benefits provided by Purchaser shall retain the sole discretion to amend, restate, merge or terminate any Company immediately before the Effective Time will be determined exclusive of Benefit Plan at any right to purchase Shares or equity incentive awards or cash bonuses awarded under the Company’s profit-sharing plan. The Merger Agreement provides that, as of and time after the Effective Time, the Surviving Corporation will credit each non-union Company Employee for purposes of eligibility, vesting and benefit accrual for all of the Company Employee’s service with the Company and the Company’s Subsidiaries and their respective predecessor entities, if any, Closing. Except as otherwise required under any and all employee compensation and incentive plans, and under any and 37 Table of Contents all benefit plans, programs, policies and arrangements (including vacation and leave of absence policies), maintained for the benefit of Company Employees as of and after the Effective Time by the Surviving Corporation or its Affiliates (each, a “Surviving Corporation Plan”) to the extent such service was recognized for such purpose by the Company Plan (but not for purposes of benefit accrual under a defined benefit pension plan or long-term incentive plan applicable Law or to the extent that such credit would result expressly set forth in a duplication of benefits). With respect to each Surviving Corporation Plan that is a “welfare benefit plan” (as defined in Section 3(1) of ERISA), the Surviving Corporation will: (i) cause there to be waived any pre-existing condition or eligibility limitations except to the extent such limitations as to preexisting conditions or eligibility were applicable to a Company Employee under a Company Plan that is a welfare benefit plan and (ii) give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed or reimbursable to, Company Employees under similar Company Plans for the calendar year in which the Effective Time occurs. Without limiting the foregoing, the Surviving Corporation shall permit each Company Employee who satisfied the eligibility requirements of the Company’s 401(k) plan to participate in the 401(k) plan of the Surviving Corporation immediately following the Effective Time. The Merger Agreement further provides that, upon the termination of employment from Parent or its Subsidiaries (or their successors) of a Company Employee (i) who is not employed pursuant to a collective bargaining written agreement and (ii) who would have been entitled to post-retirement medical and life insurance benefits under the programs of the Company and the Company Subsidiaries as in effect as of the date hereof if the employment of such individual with the Company and the Company Subsidiaries terminated as of the date hereof (such Company Employee, a “Currently Eligible Retiree”) or within eighteen months of the date hereof (such Company Employee, a “Future Eligible Retiree”), the Surviving Corporation will provide to each Currently Eligible Retiree and Future Eligible Retiree, upon their respective termination of employment with Parent and its Subsidiaries (or their successors), post-retirement medical and life insurance benefits substantially identical to those provided from time to time to otherwise similarly situated retirees receiving such benefits under the programs of the Company or a Company Subsidiary as of the date hereof (treating service after the Closing with Parent or its Subsidiaries (or their successors) as service with the Company); provided that the foregoing shall not prohibit the amendment or termination of such benefits if such benefits are similarly amended or terminated for all current or former Subsidiary, employees of the Company and the Company Subsidiaries or for only current employees who are not Currently Eligible Retirees or Future Eligible Retirees. Pursuant to the Merger Agreement, from and after the Effective Time, the Surviving Corporation will honor, in accordance with its terms and conditions, (i) each collective bargaining agreement to which the Company or any Company Subsidiary is a party, (ii) each existing employment, change in control, severance and termination protection plan, policy or agreement of or between the Company or any Company Subsidiary and any officer, director or employee of the Company that is disclosed on the Company Disclosure Schedule, (iii) all existing obligations and/or accrued benefits under any employee benefit plan, policy, program or arrangement of the Company or any Company Subsidiary that are disclosed on of the Company Disclosure ScheduleSubsidiaries, including Continuing Employees, shall be considered to be employed “at will” and (iv) except as otherwise provided in an individual employment agreementnothing shall be construed to limit the ability of Purchaser, all obligations and/or accrued benefits under all plans, programs or agreements of the Company or any Company Subsidiary that provide for bonuses that are disclosed on the Company Disclosure Schedule. Nothing provided in the Merger Agreement will create any third-party beneficiary rights in any employee or former employee of the Company in respect of continued employment (or resumed employment) with Parent or the Surviving Corporation. Nothing contained in the Merger Agreement will preclude Parent or the Surviving Corporation from terminating Subsidiaries to terminate the employment of any Company Employee or changing the terms and conditions of employment applicable such employee at any time, subject to any Company Employee at any time applicable severance and for any reason to the extent permitted by applicable Law. Nothing contained in the Merger Agreement will (i) amend, or be deemed to amend, any Company Plan, (ii) provide any Person not a party to the Merger Agreement with any right, benefit or remedy with regard to any Company Plan or a right to enforce any provision of the Merger Agreement, or (iii) except as provided in the Merger Agreement, limit in any way the Surviving Corporation’s ability to amend or terminate any Company Plan at any time in accordance with its terms and applicable lawrelated benefits.

Employment and Employee Benefits. Pursuant to Buyer shall cause the Merger Agreement, except as otherwise provided in an individual employment agreement or any collective bargaining agreementAcquired Company, for a period of two years following not less than 91 days after the Effective Time, Closing Date to continue the Surviving Corporation will provide compensation (including salary, cash bonus, commissions, and other incentives, but not including equity incentives) and benefits to each individual who is employment of all or substantially all of the persons actively employed by the Acquired Company or a Company Subsidiary as of the Effective Time time immediately prior to the Closing (eachcollectively, a “Company Employee”the "Continuing Employees"), at salary or hourly wage rates (as the case may be) that are no not less favorable in the aggregate than the levels of such compensation and benefits provided to such Company Employees by the Company immediately before the Effective Time, provided, however, that such compensation and benefits provided by the Company immediately before the Effective Time will be determined exclusive of any right to purchase Shares salary or equity incentive awards or cash bonuses awarded under the Company’s profit-sharing plan. The Merger Agreement provides that, as of and after the Effective Time, the Surviving Corporation will credit each non-union Company Employee for purposes of eligibility, vesting and benefit accrual for all of the Company Employee’s service with the Company and the Company’s Subsidiaries and their respective predecessor entities, if any, under any and all employee compensation and incentive plans, and under any and 37 Table of Contents all benefit plans, programs, policies and arrangements (including vacation and leave of absence policies), maintained for the benefit of Company Employees as of and after the Effective Time by the Surviving Corporation or its Affiliates (each, a “Surviving Corporation Plan”) to the extent such service was recognized for such purpose by the Company Plan (but not for purposes of benefit accrual under a defined benefit pension plan or long-term incentive plan or to the extent that such credit would result in a duplication of benefits). With respect to each Surviving Corporation Plan that is a “welfare benefit plan” (as defined in Section 3(1) of ERISA), the Surviving Corporation will: (i) cause there to be waived any pre-existing condition or eligibility limitations except to the extent such limitations as to preexisting conditions or eligibility were applicable to a Company Employee under a Company Plan that is a welfare benefit plan and (ii) give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed or reimbursable to, Company Employees under similar Company Plans for the calendar year in which the Effective Time occurs. Without limiting the foregoing, the Surviving Corporation shall permit each Company Employee who satisfied the eligibility requirements of the Company’s 401(k) plan to participate in the 401(k) plan of the Surviving Corporation immediately following the Effective Time. The Merger Agreement further provides that, upon the termination of employment from Parent or its Subsidiaries (or their successors) of a Company Employee (i) who is not employed pursuant to a collective bargaining agreement and (ii) who would have been entitled to post-retirement medical and life insurance benefits under the programs of the Company and the Company Subsidiaries as hourly wage rates in effect as of the date hereof if time immediately prior to the employment of such individual with the Company and the Company Subsidiaries terminated as of the date hereof (such Company Employee, a “Currently Eligible Retiree”) or within eighteen months of the date hereof (such Company Employee, a “Future Eligible Retiree”), the Surviving Corporation will provide to each Currently Eligible Retiree and Future Eligible Retiree, upon their respective termination of employment with Parent and its Subsidiaries (or their successors), post-retirement medical and life insurance benefits substantially identical to those provided from time to time to otherwise similarly situated retirees receiving such benefits under the programs of the Company or a Company Subsidiary as of the date hereof (treating service after the Closing with Parent or its Subsidiaries (or their successors) as service with the Company)Closing; provided that the foregoing shall not prohibit be construed to limit the amendment or termination ability of such benefits if such benefits are similarly amended or terminated for all current or former employees of the Company and the Company Subsidiaries or for only current employees who are not Currently Eligible Retirees or Future Eligible Retirees. Pursuant to the Merger Agreement, from and after the Effective TimeBuyer, the Surviving Corporation will honorAcquired Company or any of their Affiliates to terminate the employment of any employee (including any Continuing Employee) at any time and for any or no reason. On or before the Closing Date Selling Shareholder shall provide Buyer with a list of employee layoffs, by location, implemented by the Acquired Company in accordance with the 90-day period preceding the Closing Date. Buyer shall cause all its terms and conditionsits Affiliate's welfare benefit plans (including medical, dental, vision, life insurance and short-term and long-term disability benefit plans) in which Continuing Employees are eligible to participate following the Closing to: (i) each collective bargaining agreement to in the plan year in which the Company Closing Date occurs waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees and their covered dependents under such plans (except to the extent such conditions, exclusions or any Company Subsidiary is a party, waiting periods would apply under the Acquired Company's or Selling Shareholder's plans as in existence prior to the Closing); and (ii) provide each existing employment, change Continuing Employee and his or her covered dependents with credit for any co-payments and deductibles paid prior to Closing in control, severance and termination protection plan, policy satisfying any applicable deductible or agreement of out-of-pocket requirements or between limitations under such plans in the Company or any Company Subsidiary and any officer, director or employee of plan year in which the Company that is disclosed on Closing Date occurs. In connection with the Company Disclosure Schedule, (iii) all existing obligations and/or accrued benefits under Continuing Employees' participation in any employee benefit plan, policy, program or arrangement maintained by Buyer or any of its Affiliates, Buyer shall cause the Continuing Employees to receive credit for all periods of employment or service with the Acquired Company (including service with predecessor employers, where such credit was provided by the Acquired Company) prior to the Closing Date for purposes of determining eligibility service and vesting service, to the extent such credit does not result in a duplication of benefits and to the extent credit as of the Closing Date was recognized under an analogous Company Plan. Buyer shall also cause the Acquired Company to provide the vacation time and sick leave benefits due and accrued to the Continuing Employees as of the Closing Date. Subject to the last sentence of this Section 9.4(d), Selling Shareholder shall assume, retain and be solely responsible for all obligations and liabilities relating to or at any time arising under or in connection with any Company Plan or Company Other Benefit Obligation or any Company Subsidiary that are disclosed on other "employee benefit plan" (as defined in ERISA Section 3(3)) or other benefit plan, program, agreement or arrangement of any kind at any time maintained, sponsored or contributed or required to be contributed to by Selling Shareholder, the Company Disclosure ScheduleCompany, and (iv) except as otherwise provided in an individual employment agreement, all obligations and/or accrued benefits under all plans, programs or agreements any of the Company Purchased Subsidiaries, or any Company Subsidiary ERISA Affiliate, or with respect to which Selling Shareholder, the Company, any of the Purchased Subsidiaries, or any ERISA Affiliate has any current or potential liability or obligation. Selling Shareholder hereby agrees that provide for bonuses that are disclosed on the Company Disclosure Schedule. Nothing provided in the Merger Agreement will create any third-party beneficiary rights in any employee current or former employee of the Company or any Purchased Subsidiary who (i) as of the Closing Date is receiving short-term disability benefits and who subsequently becomes eligible to receive long-term disability benefits, or (ii) as of the Closing Date is receiving long-term disability benefits, shall become eligible or continue to be eligible, as applicable, to receive long-term disability benefits under Selling Shareholder's long-term disability plan unless and until such individual is no longer disabled. After the Closing, Buyer shall assume and be solely responsible for all liabilities and obligations in connection with claims made by or on behalf of Continuing Employees in respect of continued severance pay, salary continuation and similar obligations relating to the termination or alleged termination after the Closing of any Continuing Employee's employment with the Acquired Company, including the stay bonuses and other severance benefits described in the Contracts as set forth in Schedule 3.8(g), except as otherwise specifically agreed between Buyer and any Continuing Employee after the Closing. Selling Shareholder shall, no later than 45 days following the Closing Date, make pro-rated matching contributions to the Hawk Corporation 401(k) Retirement Plan (the "Selling Shareholder 401(k) Plan") on behalf of all Continuing Employees for the plan year or resumed employmentportion thereof ending on the Closing Date, and shall ensure that the vested interest under the Selling Shareholder 401(k) Plan for each Continuing Employee is 100%. Prior to the Closing Date, Selling Shareholder shall: (i) make the 2006 profit sharing contribution to the Selling Shareholder 401(k) Plan for all Continuing Employees; (ii) cause the Company to accrue, but shall have no obligation to cause the Company to make and the Company shall not make, a 2007 profit sharing contribution to the Selling Shareholder 401(k) Plan for all Continuing Employees for the period from January 1, 2007 through the Closing Date; and (iii) cause the Company to accrue, but shall have no obligation to cause the Company to pay and the Company shall not pay, salaried incentive compensation payable with Parent or respect to all Continuing Employees for the Surviving Corporationperiod from January 1, 2007 through the Closing Date. Nothing contained in this Agreement, express or implied: (i) shall be construed to establish, amend, or modify any benefit plan, program, agreement or arrangement; (ii) shall alter or limit the Merger Agreement will preclude Parent ability of the Buyer, the Company, the Purchased Subsidiaries or the Surviving Corporation from terminating the employment any of their Affiliates to amend, modify or terminate any Company Employee benefit plan, program, agreement or changing the terms and conditions of employment applicable to any Company Employee arrangement at any time and assumed, established, sponsored or maintained by any of them; (iii) is intended to confer upon any current or former employee any right to employment or continued employment for any period of time by reason of this Agreement, or any right to a particular term or condition of employment; or (iv) is intended to confer upon any Person (including employees, retirees, or dependents or beneficiaries of employees or retirees) any other rights as a third-party beneficiary of this Agreement. Mail To the extent permitted any mail and other communications received by applicable LawBuyer and addressed or directed to Selling Shareholder or the Acquired Company relating to pre-Closing matters, Buyer hereby agrees to promptly forward such mail or communication to Selling Shareholder. Nothing contained in To the Merger Agreement will extent any mail and other communications received by Selling Shareholder and addressed or directed to Buyer or the Acquired Company relating to post-Closing matters, Selling Shareholder hereby agrees to promptly forward such mail or communication to Buyer or the Acquired Company, as appropriate. Insurance Matters From and after the Closing: (i) amendthe Company and each Purchased Subsidiary will have the right to assert claims (and Selling Shareholder will provide the Acquired Company with commercially reasonable assistance in asserting claims) under the Policies for any loss, liability or be deemed damage of the Acquired Company arising out of insured incidents occurring on or prior to amend, any Company Plan, the Closing Date; and (ii) the Company and each Purchased Subsidiary will have the right to continue to prosecute claims (and Seller will provide the Acquired Company with commercially reasonable assistance in connection therewith) for any Person not a party loss, liability or damage of the Acquired Company properly asserted with the insurance carrier prior to the Merger Agreement Closing Date under the Policies arising out of insured incidents occurring prior to the Closing Date. Selling Shareholder shall remain responsible for payments with any right, benefit or remedy with regard respect to any Company Plan applicable deductibles, retentions, self-insurance provisions or a right any similar payment or reimbursement obligations of Selling Shareholder or any of its Affiliates under the Policies in respect of claims asserted pursuant to enforce any provision of the Merger Agreement, or (iii) except as provided in the Merger Agreement, limit in any way the Surviving Corporation’s ability to amend or terminate any Company Plan at any time in accordance with its terms and applicable lawSection 9.6(a).

Employment and Employee Benefits. Pursuant to the Merger Agreement, except as otherwise provided in an individual employment agreement or any collective bargaining agreement, for a period of two years following the Effective Time, the Surviving Corporation will provide compensation (including salary, cash bonus, commissions, and other incentives, but not including equity incentives) and benefits to each individual who is employed by the Company or a Company Subsidiary as of the Effective Time (each, a “Company Employee”) that are no less favorable in the aggregate than the levels of such compensation and benefits provided to such Company Employees by the Company immediately before the Effective Time, provided, however, that such compensation and benefits provided by the Company immediately before the Effective Time will be determined exclusive of any right to purchase Shares or equity incentive awards or cash bonuses awarded under the Company’s profit-sharing plan. The Merger Agreement provides that, as of from and after the Effective Timedate of the closing of the Merger, Parent will use reasonable efforts to cause, subject to certain limitations set forth in the Merger Agreement: • recognition of the service of Continuing Employees for certain purposes including eligibility to participate, levels of benefits (but not for benefit accruals under any defined benefit pension plan) and vesting under each compensation, vacation, fringe or other welfare benefit plan, program or arrangement of Parent, Oracle, the Surviving Corporation will credit each non-union Company or any of their affiliates in which any Continuing Employee for purposes of eligibility, vesting and benefit accrual for all of the Company Employee’s service is or becomes eligible to participate; • with the Company and the Company’s Subsidiaries and their respective predecessor entities, if any, under any and all employee compensation and incentive plans, and under any and 37 Table of Contents all benefit plans, programs, policies and arrangements (including vacation and leave of absence policies), maintained for the benefit of Company Employees as of and after the Effective Time by the Surviving Corporation or its Affiliates (each, a “Surviving Corporation Plan”) to the extent such service was recognized for such purpose by the Company Plan (but not for purposes of benefit accrual under a defined benefit pension plan or long-term incentive plan or to the extent that such credit would result in a duplication of benefits). With respect to each Surviving Corporation Parent Benefit Plan that is a an “employee welfare benefit plan” (as defined in Section 3(1) of ERISA), the Surviving Corporation will: (i) cause there waiver of all limitations as to be waived any pre-existing condition or eligibility limitations except conditions, waiting periods, required physical examinations and exclusions with respect to participation and coverage requirements applicable under such Parent Benefit Plan for such Continuing Employees and their eligible dependents to the same extent such limitations as to preexisting conditions that the foregoing would not have applied or eligibility were applicable to a Company Employee under a Company Plan that is a welfare benefit plan and (ii) give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed or reimbursable to, Company Employees under similar Company Plans for the calendar year in which the Effective Time occurs. Without limiting the foregoing, the Surviving Corporation shall permit each Company Employee who satisfied the eligibility requirements of the Company’s 401(k) plan to participate in the 401(k) plan of the Surviving Corporation immediately following the Effective Time. The Merger Agreement further provides that, upon the termination of employment from Parent or its Subsidiaries (or their successors) of a Company Employee (i) who is not employed pursuant to a collective bargaining agreement and (ii) who would have been entitled to post-retirement medical and life insurance benefits waived under the programs of the Company and the Company Subsidiaries as in effect as of the date hereof if the employment of such individual with the Company and the Company Subsidiaries terminated as of the date hereof (such Company Employee, a “Currently Eligible Retiree”) or within eighteen months of the date hereof (such Company Employee, a “Future Eligible Retiree”), the Surviving Corporation will provide to each Currently Eligible Retiree and Future Eligible Retiree, upon their respective termination of employment with Parent and its Subsidiaries (or their successors), post-retirement medical and life insurance benefits substantially identical to those provided from time to time to otherwise similarly situated retirees receiving such benefits under the programs of the Company or a Company Subsidiary as of the date hereof (treating service after the Closing with Parent or its Subsidiaries (or their successors) as service with the Company); provided that the foregoing shall not prohibit the amendment or termination of such benefits if such benefits are similarly amended or terminated for all current or former employees of the Company and the Company Subsidiaries or for only current employees who are not Currently Eligible Retirees or Future Eligible Retirees. Pursuant to the Merger Agreement, from and after the Effective Time, the Surviving Corporation will honor, in accordance with its terms and conditions, (i) each collective bargaining agreement to which the Company or any Company Subsidiary is a party, (ii) each existing employment, change in control, severance and termination protection plan, policy or agreement of or between the Company or any Company Subsidiary and any officer, director or employee of the Company that is disclosed on the Company Disclosure Schedule, (iii) all existing obligations and/or accrued benefits under any employee benefit plan, policy, program or arrangement of the Company or any Company Subsidiary that are disclosed on the Company Disclosure Schedule, and (iv) except as otherwise provided in an individual employment agreement, all obligations and/or accrued benefits under all plans, programs or agreements of the Company or any Company Subsidiary that provide for bonuses that are disclosed on the Company Disclosure Schedule. Nothing provided in the Merger Agreement will create any third-party beneficiary rights in any employee or former employee of the Company in respect of continued employment (or resumed employment) with Parent or the Surviving Corporation. Nothing contained in the Merger Agreement will preclude Parent or the Surviving Corporation from terminating the employment of any corresponding Company Employee or changing the terms and conditions of employment applicable to any Company Employee at any time and for any reason to the extent permitted by applicable Law. Nothing contained in the Merger Agreement will Plan (i) amend, or be deemed to amend, any Company Plan, (ii) provide any Person not a party to the Merger Agreement with any right, benefit or remedy with regard to any Company Plan or a right to enforce any provision of the Merger Agreement, or (iii) except as provided defined in the Merger Agreement) in which such Continuing Employee was a participant immediately prior to such Continuing Employee’s commencement of participation in such Parent Benefit Plan; and • each Continuing Employee and his or her eligible dependents to be receive credit for any co-payments and deductibles paid in the calendar year that, limit and prior to the date that, such Continuing Employee commences participation in such employee welfare benefit plan of Parent in satisfying any way applicable co-payment or deductible requirements under such Parent Benefit Plan for the Surviving Corporation’s ability applicable calendar year, to amend or terminate the extent that such expenses were recognized for such purposes under the comparable Company Employee Plan. Unless otherwise directed by Xxxxxx, the Company will take all actions necessary to effect the termination of any Company Plan at any time in accordance with its terms and applicable lawsponsored 401(k) savings plan effective as of the business day immediately preceding the Acceptance Time.

Employment and Employee Benefits. Pursuant (a) Buyer shall cause the Surviving Corporation and its Subsidiaries to provide Employees who continue to be employed by the Surviving Corporation and its Subsidiaries after the Merger Closing Date (the “Transferred Employees”), (i) for the period of twelve (12) months immediately following the Merger Closing Date, (x) at least the same level of base salary and hourly wages as in effect immediately prior to the Merger AgreementClosing Date, except as otherwise provided (y) employee benefit and incentive plans, programs, contracts and arrangements that are substantially similar, in an individual employment agreement or any collective bargaining agreementthe aggregate, for a period of two years following the Effective Time, the Surviving Corporation will provide compensation (including salary, cash bonus, commissions, and other incentives, but not including equity incentives) and benefits to each individual who is employed by the Company or a Company Subsidiary as of the Effective Time Benefit Plans (each, a “Company Employee”excluding stock-based compensation) that are no less favorable in the aggregate than the levels of such compensation and benefits provided to such Company Employees by the Company immediately before the Effective Time, provided, however, that such compensation and benefits provided by the Company immediately before and its Subsidiaries to Transferred Employees prior to the Effective Time will be determined exclusive Merger Closing Date, and (z) at least the same level of any right to purchase Shares or equity incentive awards or cash bonuses awarded severance payments and benefits as would have been provided under the Company’s profitseverance plans or policies as in effect immediately prior to the Merger Closing Date; and (ii) for the period immediately following the Merger Closing Date until December 31, 2015 (it being acknowledged that payments related to the Company’s 2014 fiscal year incentive plans will be paid promptly after completion of the 2014 fiscal year-sharing planend audit), the same level of cash incentive bonus opportunity as in effect immediately prior to the Merger Closing Date. The Merger Agreement provides that, as of From and after the Effective TimeMerger Closing Date, Buyer or one of its Affiliates shall honor, and shall cause the Surviving Corporation will credit each nonand its Subsidiaries to honor, in accordance with their terms, all employment, retention and severance agreements and all severance, incentive and bonus plans, programs and arrangements (excluding with respect to stock-union Company Employee for purposes based compensation) as in effect immediately prior to the Merger Closing Date that are applicable to any Employees. Buyer or one of eligibility, vesting and benefit accrual for all its Affiliates shall recognize the services of the Company Employee’s service Transferred Employees with the Company and its Subsidiaries prior to the Company’s Subsidiaries Merger Closing Date as service with Buyer and their respective predecessor entitiesits Affiliates in connection with any pension or welfare benefit plans and policies (including vacation, paid time off and holiday policies) maintained by Buyer or one of its Affiliates which is made available following the Merger Closing Date by Buyer or one of its Affiliates for purposes of any waiting period, vesting, eligibility and benefit entitlement. Buyer shall make commercially reasonable efforts to (i) waive, or cause its insurance carriers to waive, all limitations as to pre-existing and at-work conditions, if any, with respect to participation and coverage requirements applicable to Transferred Employees under any and all employee compensation and incentive plans, and under any and 37 Table of Contents all benefit plans, programs, policies and arrangements (including vacation and leave of absence policies), maintained for the benefit of Company Employees as of and after the Effective Time by the Surviving Corporation or its Affiliates (each, a “Surviving Corporation Plan”) to the extent such service was recognized for such purpose by the Company Plan (but not for purposes of benefit accrual under a defined benefit pension plan or long-term incentive plan or to the extent that such credit would result in a duplication of benefits). With respect to each Surviving Corporation Plan that is a “welfare benefit plan” plan (as defined in Section 3(1) of ERISA)) which is made available to Transferred Employees following the Merger Closing Date by Buyer or one of its Affiliates, the Surviving Corporation will: (i) cause there to be waived any pre-existing condition or eligibility limitations except to the extent such limitations as to preexisting conditions or eligibility were applicable to a Company Employee under a Company Plan that is a welfare benefit plan and (ii) give effectprovide credit to Transferred Employees for any co-payments, in determining any deductible deductibles and maximum out-of-pocket limitations, to claims incurred and amounts expenses paid by, and amounts reimbursed or reimbursable to, Company by such Transferred Employees under similar Company Plans for the calendar year in which the Effective Time occurs. Without limiting the foregoingemployee benefit plans, the Surviving Corporation shall permit each Company Employee who satisfied the eligibility requirements of the Company’s 401(k) plan to participate in the 401(k) plan of the Surviving Corporation immediately following the Effective Time. The Merger Agreement further provides that, upon the termination of employment from Parent or its Subsidiaries (or their successors) of a Company Employee (i) who is not employed pursuant to a collective bargaining agreement programs and (ii) who would have been entitled to post-retirement medical and life insurance benefits under the programs arrangements of the Company and its Subsidiaries during the Company Subsidiaries as in effect as portion of the date hereof if the employment of such individual with the Company and the Company Subsidiaries terminated as of the date hereof (such Company Employee, a “Currently Eligible Retiree”) or within eighteen months of the date hereof (such Company Employee, a “Future Eligible Retiree”), the Surviving Corporation will provide to each Currently Eligible Retiree and Future Eligible Retiree, upon their respective termination of employment with Parent and its Subsidiaries (or their successors), post-retirement medical and life insurance benefits substantially identical to those provided from time to time to otherwise similarly situated retirees receiving such benefits under the programs of the Company or a Company Subsidiary as of the date hereof (treating service after the Closing with Parent or its Subsidiaries (or their successors) as service with the Company); provided that the foregoing shall not prohibit the amendment or termination of such benefits if such benefits are similarly amended or terminated for all current or former employees of the Company and the Company Subsidiaries or for only current employees who are not Currently Eligible Retirees or Future Eligible Retirees. Pursuant to relevant plan year including the Merger Agreement, from and after the Effective Time, the Surviving Corporation will honor, in accordance with its terms and conditions, (i) each collective bargaining agreement to which the Company or any Company Subsidiary is a party, (ii) each existing employment, change in control, severance and termination protection plan, policy or agreement of or between the Company or any Company Subsidiary and any officer, director or employee of the Company that is disclosed on the Company Disclosure Schedule, (iii) all existing obligations and/or accrued benefits under any employee benefit plan, policy, program or arrangement of the Company or any Company Subsidiary that are disclosed on the Company Disclosure Schedule, and (iv) except as otherwise provided in an individual employment agreement, all obligations and/or accrued benefits under all plans, programs or agreements of the Company or any Company Subsidiary that provide for bonuses that are disclosed on the Company Disclosure Schedule. Nothing provided in the Merger Agreement will create any third-party beneficiary rights in any employee or former employee of the Company in respect of continued employment (or resumed employment) with Parent or the Surviving Corporation. Nothing contained in the Merger Agreement will preclude Parent or the Surviving Corporation from terminating the employment of any Company Employee or changing the terms and conditions of employment applicable to any Company Employee at any time and for any reason to the extent permitted by applicable Law. Nothing contained in the Merger Agreement will (i) amend, or be deemed to amend, any Company Plan, (ii) provide any Person not a party to the Merger Agreement with any right, benefit or remedy with regard to any Company Plan or a right to enforce any provision of the Merger Agreement, or (iii) except as provided in the Merger Agreement, limit in any way the Surviving Corporation’s ability to amend or terminate any Company Plan at any time in accordance with its terms and applicable lawClosing Date.

Employment and Employee Benefits. Pursuant (a) Not less than two (2) Business Days after such time (if any) as Purchaser shall become the Successful Bidder (as defined in Exhibit A), Purchaser or Manager shall deliver, in writing, an offer of employment to each of the employees (full or part time) of the Business (other than employees of the Company but including the so-called "CHIEF EXECUTIVE OFFICERS" of the Facilities), who are active employees of any Seller immediately prior to the Merger AgreementClosing, except as otherwise provided in an individual to commence employment agreement or any collective bargaining agreement, for a period of two years with Manager immediately following the Effective TimeClosing (it being agreed that Seller staffing levels shall not be increased between the date hereof and the Closing in any material respect), which offer shall be conditioned on the Surviving Corporation will provide compensation (including salary, cash bonus, commissions, Closing and other incentives, but not including equity incentives) and benefits to each individual who is employed by the Company or a Company Subsidiary applicable employee's continued employment as an active employee of any Seller as of the Effective Time Closing. Each such offer of employment shall be at substantively the same salary or hourly wage rate and position in effect immediately prior to the Closing and shall include participation in employee welfare benefit plans of the Manager, including health insurance, comparable to those provided to existing employees of the Manager having like positions and on a basis consistent with paragraph (eache) of this Section. Such individuals who accept such offers by the Closing Date are hereinafter referred as the "TRANSFERRED EMPLOYEES". In addition, each other employee of the Business who, as of the Closing, is on vacation, holiday, jury duty or on an approved leave of absence (including military leave, bereavement leave, disability leave and workers compensation leave), and who, within the shorter of the period ending three (3) months following the Closing or the period ending seven (7) days following such vacation, holiday, jury duty or approved leave of absence, presents himself or herself to the Manager as ready, willing and able (to the Manager's reasonable satisfaction) to commence the same active employment with the Manager, shall be deemed to be a “Company Employee”) that are no less favorable in Transferred Employee as of the aggregate than the levels time of such compensation and benefits provided commencement. It is the present intent of Purchaser to such Company continue the employment of a substantial number of the Transferred Employees by for at least one year following the Company immediately before the Effective Time, Closing; provided, however, that such compensation and benefits provided by the Company immediately before the Effective Time Transferred Employees will be determined exclusive at-will employees of Purchaser or Manager and Purchaser or Manager, as the case may be, will retain the right to terminate the employment of any right to purchase Shares or equity incentive awards or cash bonuses awarded under the Company’s profit-sharing plan. The Merger Agreement provides that, as of and after the Effective Time, the Surviving Corporation will credit each non-union Company Employee for purposes of eligibility, vesting and benefit accrual for all of the Company Employee’s service Transferred Employees with or without cause and with or without reason at any time following the Company Closing and to change any or all of the Company’s Subsidiaries terms and conditions of employment at any time following the Closing. As of the day before the Closing Date, Sellers shall terminate their respective predecessor entities, if any, under any and employment of all employee compensation and incentive plans, and under any and 37 Table employees of Contents all benefit plans, programs, policies and arrangements the Business who are employed as of such date (including vacation and leave of absence policiesother than the officers referred to above), maintained for except any who have rejected the benefit of Company Employees as of and after the Effective Time by the Surviving Corporation or its Affiliates (each, a “Surviving Corporation Plan”) to the extent such service was recognized for such purpose by the Company Plan (but not for purposes of benefit accrual under a defined benefit pension plan or long-term incentive plan or to the extent that such credit would result in a duplication of benefits). With respect to each Surviving Corporation Plan that is a “welfare benefit plan” (as defined in Section 3(1) of ERISA), the Surviving Corporation will: (i) cause there to be waived any pre-existing condition or eligibility limitations except to the extent such limitations as to preexisting conditions or eligibility were applicable to a Company Employee under a Company Plan that is a welfare benefit plan and (ii) give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed or reimbursable to, Company Employees under similar Company Plans for the calendar year in which the Effective Time occurs. Without limiting the foregoing, the Surviving Corporation shall permit each Company Employee who satisfied the eligibility requirements of the Company’s 401(k) plan to participate in the 401(k) plan of the Surviving Corporation immediately following the Effective Time. The Merger Agreement further provides that, upon the termination offer of employment from Parent of Purchaser or its Subsidiaries (or their successors) of a Company Employee (i) who is not employed pursuant to a collective bargaining agreement and (ii) who would have been entitled to post-retirement medical and life insurance benefits under the programs of the Company and the Company Subsidiaries as in effect as of the date hereof if the employment of such individual with the Company and the Company Subsidiaries terminated as of the date hereof (such Company Employee, a “Currently Eligible Retiree”) or within eighteen months of the date hereof (such Company Employee, a “Future Eligible Retiree”), the Surviving Corporation will provide to each Currently Eligible Retiree and Future Eligible Retiree, upon their respective termination of employment with Parent and its Subsidiaries (or their successors), post-retirement medical and life insurance benefits substantially identical to those provided from time to time to otherwise similarly situated retirees receiving such benefits under the programs of the Company or a Company Subsidiary as of the date hereof (treating service after the Closing with Parent or its Subsidiaries (or their successors) as service with the Company)Manager; provided that the foregoing shall not prohibit the amendment or termination of such benefits if such benefits are similarly amended or terminated for all current or former employees of the Company and the Company Subsidiaries or for only current employees who are not Currently Eligible Retirees or Future Eligible Retirees. Pursuant to the Merger Agreement, from and after the Effective Time, the Surviving Corporation will honor, in accordance with its terms and conditions, (i) each collective bargaining agreement limit or restrict the ability of Sellers to which terminate an employee of the Company Business prior to such time or any Company Subsidiary is a party, (ii) each existing employment, change in control, severance and termination protection plan, policy or agreement of or between the Company or create any Company Subsidiary and any officer, director or employee of the Company that is disclosed obligation on the Company Disclosure Schedule, (iii) part of any Seller to continue the employment or offer any new employment position to any such employee who has rejected such offer. Sellers will be responsible for all existing obligations and/or accrued benefits under liabilities and claims relating to any employee benefit plan, policy, program or arrangement of the Company or any Company Subsidiary that are disclosed on the Company Disclosure Schedule, and (iv) except as otherwise provided in an individual employment agreement, all obligations and/or accrued benefits under all plans, programs or agreements of the Company or any Company Subsidiary that provide for bonuses that are disclosed on the Company Disclosure Schedule. Nothing provided in the Merger Agreement will create any third-party beneficiary rights in any employee current or former employee of the Company in respect Sellers or their Affiliates arising on or prior to the time such Person becomes a Transferred Employee (including any liabilities arising under any Benefit Plan or other compensation program, arrangement or agreement of continued employment the Sellers). Sellers will retain liability for all Benefit Plans maintained by the Sellers or their Affiliates and no such Benefit Plans (or resumed employmentany liabilities thereunder) with Parent will be assumed by or the Surviving Corporation. Nothing contained in the Merger Agreement will preclude Parent or the Surviving Corporation from terminating the employment of any Company Employee or changing the terms and conditions of employment applicable to any Company Employee at any time and for any reason transferred to the extent permitted by applicable LawPurchaser. Nothing contained in the Merger Agreement The Manager will (i) amend, or be deemed to amend, any Company Plan, (ii) provide any Person not a party employee benefits for Transferred Employees contemplated by this SECTION 5.12 through benefit plans established or maintained by the Manager. Sellers shall make the employees of the Business available to the Merger Agreement with any rightPurchaser, benefit at reasonable times and in a manner intended not to disrupt ongoing operations, for the purpose of making employment offers to such employees. Purchaser or remedy with regard to any Company Plan or a right to enforce any provision Manager will recognize the accrued and unused vacation, sick days, personal days and similar fringe benefits which were accrued by the Transferred Employee as of the Merger AgreementClosing Date (the "ACCRUED FRINGE BENEFITS"). Sellers shall reimburse Purchaser for all cash payments made with respect to Accrued Fringe Benefits prior to March 31, 2006 (including any regularly provided wage or (iii) except as provided in salary payments made during such fringe benefit period). For this purpose, the Merger Agreement, limit in any way Purchaser shall within 15 days following the Surviving Corporation’s ability end of each month that ends within the period following the Closing and extending through March 2006 furnish the Sellers with a written summary of the costs incurred by Manager during such month with respect to amend or terminate any Company Plan at any time in accordance with its terms and applicable lawthe Accrued Fringe Benefits. Sellers shall remit the amount of such costs to Purchaser within 10 days following the receipt of each such statement.