Common use of Purchaser Benefit Plans Clause in Contracts

Purchaser Benefit Plans. (a) From the Closing Date through the first anniversary of the Closing Date, except as may be required by applicable Law or otherwise set forth herein, Purchaser shall provide Purchaser Employees with a level of aggregate employee benefits and compensation that is substantially comparable in the aggregate to the aggregate employee benefits and compensation provided to the Purchaser Employees as of immediately prior to the Closing taking into account all information provided, or made available in the Data Room, by Seller in respect of the Employee Benefit Plans (other than equity-based Employee Benefit Plans). Notwithstanding anything to the contrary in this Section 6.02, effective as of January 1, 2008, Purchaser shall make available to each Purchaser Employee group health coverage that is comparable to the group health coverage made available to the Purchaser Employees immediately prior to the Closing; provided further, that Purchaser shall directly reimburse each Purchaser Employee for (i) any COBRA premium such Purchaser Employee pays to continue group health coverage under a Seller Group Health Plan during the period between the Closing Date and December 31, 2007, less (ii) the monthly amount such Purchaser Employee paid for group health coverage under the applicable Seller Group Health Plan immediately prior to the Closing Date. Seller understands and agrees that Purchaser’s flexible spending plan shall not be effective until January 1, 2008. (b) Purchaser shall cause each plan or program maintained by Purchaser or any of its Affiliates in which a Purchaser Employee will become eligible to participate after the Closing Date in connection with the transactions contemplated by this Agreement to recognize all service of the Purchaser Employees with Seller for purposes of eligibility and vesting and, only with respect to any unused vacation, sick leave or personal days credited by Purchaser pursuant to Section 6.01(c) (but for no other plan or program), benefit accrual.

Purchaser Benefit Plans. (a) From Purchaser will cause all plans and programs of Purchaser and its Affiliates to recognize all service of the Closing Continuing Employees with Seller, the Company or any of its predecessors and Affiliates to the same extent and for the same purposes thereunder as such service was counted under the analogous Employee Plan in effect immediately prior to the Employee Transfer Date, for purposes of eligibility, vesting, benefit accrual and determining the level of vacation and severance benefits under any benefit or compensation plan, program, policy or agreement made available to Continuing Employees on or after the Employee Transfer Date through occurs (excluding any equity or equity-based, defined benefit pension, nonqualified or deferred compensation or retiree welfare benefits) (except that such service will not be counted to the first anniversary extent that it would result in a duplication of benefits or compensation for the same period of service). With respect to any medical, dental or health plan of Purchaser, the Company, or any of their NAI-1502820106v1 respective Affiliates that is made available to Continuing Employees following the Employee Transfer Date (a “Purchaser Group Health Plan”), in the calendar year in which the Employee Transfer Date occurs, Purchaser will use commercially reasonable efforts to cause the Company to not include with respect to any Continuing Employee any restrictions or limitations with respect to pre-existing condition exclusions or any actively-at-work requirements (except to the extent such restrictions or limitations were applicable as of the Employee Transfer Date under any similar plans of Seller, the Company or any of their Affiliates (a “Seller Group Health Plan”)), and any eligible expenses incurred by any Continuing Employee and his or her covered dependents during the portion of the plan year of such Seller Group Health Plan ending on the date such Continuing Employee’s participation in such Purchaser Group Health Plan begins will be taken into account under the Purchaser Group Health Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year as if such analogous amounts had been paid in accordance with such Purchaser Group Health Plan in effect immediately prior to the Employee Transfer Date. (b) Unless otherwise agreed between Seller and Purchaser, or pursuant to any transition welfare benefit coverage agreement between Seller and Purchaser, coverage for all Continuing Employees and their spouses and dependents under the Employee Plans that are sponsored and maintained by Seller will cease to be effective from and after the Employee Transfer Date, and with respect to all such Employee Plans, other with respect to any Company Plans, Seller shall take all actions necessary to amend all such Employee Plans to remove the DDS Companies as participating employers, effective as of the Closing Date, except and Seller shall be responsible for and shall perform and discharge, or cause to be performed and discharge, and shall indemnify and hold harmless Purchaser and its Affiliates from and against (1) subject to Purchaser’s reimbursement obligation under Section 7.01(a), all accrued compensation due to any Continuing Employee for the period of their employment with Seller or its Subsidiaries (other than the Company) until the Employee Transfer Date, (2) the sponsorship of and all Liabilities under or with respect to any Employee Plans (other than Company Plans), including those Liabilities incurred or claimed in respect of any Continuing Employees or their covered dependents for benefits or claims made by any current or former employees of the Company prior to the Employee Transfer Date and (3) any Liabilities arising out of any claims made by any current or former employees of Seller or its Subsidiaries (other than the Company) related to such employee’s period of employment or service with Seller or one of its Subsidiaries prior to the Employee Transfer Date. Seller shall retain responsibility for all medical, dental and vision expenses and all other welfare plan expenses incurred by current or former employees of Seller or its Subsidiaries under the Employee Plans (other than a Company Plan) regardless of when incurred or reported. (c) Immediately prior to the Closing, the Company shall (i) transfer the sponsorship of and the assets and liabilities maintained pursuant or with respect to the Spartech Corporation 401(k) Savings & Investment Plan (the “Company Savings Plan”) to Seller and (ii) remove the Company as may be required by applicable Law or otherwise set forth herein, Purchaser shall provide Purchaser Employees with a level of aggregate employee benefits and compensation that is substantially comparable participating employer in the aggregate Company NAI-1502820106v1 Savings Plan, in each case, to the aggregate employee benefits and compensation provided to the Purchaser Employees as of immediately be effective at least one day prior to the Closing taking into account (the “CSP Transfer Date”). Effective as of the CSP Transfer Date, the Seller shall maintain, operate, fund and administer the Company Savings Plan and any related trust, Contract or fund, in material compliance with its terms and any related documents or agreements and in material compliance with all information provided, or made available in the Data Room, by Seller in respect applicable Laws. Effective as of the Employee Benefit Transfer Date, Purchaser will cover (or cause to be covered) each Continuing Employee, other than an Employee of DSS Canada, under one or more tax-qualified defined contribution plans that are intended to qualify under Section 401(a) of the Code (the “Purchaser’s Savings Plans”). In addition, Purchaser will cause one or more Purchaser Savings Plans to accept a direct rollover or an eligible rollover of all or a portion of a distribution of the account balance, including any outstanding loan, from the Company Savings Plan and the PolyOne Corporation Retirement Savings Plan (the “PolyOne Savings Plan”) of each Continuing Employee who is a participant thereunder as a rollover contribution; provided, however, that Purchaser’s Savings Plans will only be required to accept rollovers of outstanding loans during the 180-day period following the Employee Transfer Date. Effective as of the Employee Transfer Date Seller will take all necessary actions to: (1) amend the loan procedures of the Company Savings Plan and the PolyOne Savings Plan, if necessary, to permit U.S. Continuing Employees to continue to make payments of any outstanding loan under such plan during the 180-day period following the Employee Transfer Date; (2) provide full vesting of all amounts credited to account of any U.S. Continuing Employee under the Company Savings Plan and PolyOne Savings Plan or any other retirement plan intended to be qualified under Section 401(a) of the Code , as applicable; and (3) make the matching, profit sharing and any other employer contributions to the Company Savings Plan, PolyOne Savings Plan or any other retirement plan intended to be qualified under Section 401(a) of the Code on behalf of U.S. Continuing Employees, prorated for the portion of the plan year ending on the Employee Transfer Date; provided, however, that such employer contributions to the Company Savings Plan, PolyOne Savings Plan or any other retirement plan intended to be qualified under Section 401(a) of the Code will be made as soon as reasonably practicable following the Employee Transfer Date. Notwithstanding any other provision of this Section 7.02, to the extent that prior to the Closing Date any non-Continuing Employees (or any spouses or dependents thereof) participate in, or any other entity other than the Company is a participating employer of, any Company Plans (but excluding the Company Savings Plan), effective no later than the day prior to the Closing Date, such employees and entities shall cease participating in the Company Plans (but excluding the Company Savings Plan), and Seller or its Affiliates (other than equitythe DSS Companies) shall take all necessary action to cause the Company to amend such Company Plans to remove the non-based Continuing Employees (or spouses and dependents thereof) as participants and all other entities other than the Company as participating employers, and Seller or its Affiliates (other than the DSS Companies) shall enroll such employees in Employee Benefit Plans sponsored by the Seller (and, for the avoidance of doubt, excluding the Company Plans). Notwithstanding anything NAI-1502820106v1 (d) Purchaser will credit each Continuing Employee with the unused, accrued vacation, sick leave or personal days to which the Continuing Employee is entitled through the Employee Transfer Date. (e) Effective as of the Employee Transfer Date, Purchaser will maintain or establish a flexible spending account plan (“Purchaser’s Flexible Spending Account Plan”) providing for medical and dependent care flexible spending account arrangements for the benefit of Continuing Employees which will recognize the elections that such Continuing Employees had in effect for purposes of the plan year in which the Employee Transfer Date occurs under the medical and dependent care flexible spending account arrangements under the flexible spending account plan of Seller (“Seller’s Flexible Spending Account Plan”). As soon as practicable after the Employee Transfer Date, Purchaser will cause Purchaser’s Flexible Spending Account Plan to assume the account balances associated with the Continuing Employees’ flexible spending accounts under Seller’s Flexible Spending Account Plan. After the Employee Transfer Date, Purchaser’s Flexible Spending Account Plan will be responsible for reimbursement of all previously unreimbursed reimbursable medical claims incurred by Continuing Employees in Seller’s plan year in which the Employee Transfer Date occurs. With respect to any Continuing Employees who have account balances under the Seller’s Flexible Spending Account Plan, as soon as reasonably practicable following the Employee Transfer Date, or after the end of any welfare benefit transition coverage period, Seller’s will transfer to Purchaser, the Company or any of their respective Affiliates, assets equal to the contrary total account balances outstanding, along with any records or information necessary to administer the Purchaser’s Flexible Spending Account Plan. (f) Purchaser will have the sole responsibility after the Employee Transfer Date for “continuation coverage” benefits provided after the Employee Transfer Date for all Continuing Employees and “qualified beneficiaries” of Continuing Employees for whom a “qualifying event” occurred after the Employee Transfer Date, except that Seller will assume or retain such responsibility or obligations with respect to U.S. Continuing Employees and other qualified beneficiaries: (1) who are enrolled in this Section 6.02, effective as of January 1, 2008, Purchaser shall make available to each Purchaser Employee group health coverage that is comparable to the group health coverage made available to the Purchaser Employees immediately prior to the Closing; provided further, that Purchaser shall directly reimburse each Purchaser Employee for (i) any COBRA premium such Purchaser Employee pays to continue group health continuation coverage under a Seller Group Health Plan during as of the period between the Closing Employee Transfer Date and December 31, 2007, less or (iiB) the monthly amount such Purchaser Employee paid for group health coverage under the applicable Seller Group Health Plan immediately with respect to whom a qualifying event occurred on or prior to the Closing Employee Transfer Date. Seller understands The terms “continuation coverage,” “qualified beneficiaries” and agrees that Purchaser’s flexible spending plan shall not be effective until January 1, 2008. (b) Purchaser shall cause each plan or program maintained by Purchaser or any of its Affiliates in which a Purchaser Employee “qualifying event” will become eligible have the meanings ascribed to participate after the Closing Date in connection with the transactions contemplated by this Agreement to recognize all service them under section 4980B of the Purchaser Employees with Seller for purposes Code and sections 601-608 of eligibility and vesting and, only with respect to any unused vacation, sick leave or personal days credited by Purchaser pursuant to Section 6.01(c) (but for no other plan or program), benefit accrualERISA.

Purchaser Benefit Plans. (a) From the Closing Date through the first anniversary of the Closing Dateuntil March 31, except as may be required by applicable Law or otherwise set forth herein2010, Purchaser shall will (or will cause the Company to) provide Purchaser non-union Company Employees with a level of aggregate health, dental, life and long-term disability that are substantially comparable (individually and not in the aggregate) to such employee benefits and compensation that is substantially comparable in maintained by the aggregate Company for its active employees with respect to the aggregate employee benefits and compensation provided to the Purchaser such Company Employees as of immediately prior to the Closing taking into account all information provided, or made available in the Data Room, by Seller in Date and at comparable employee contribution percentages. With respect of the Employee Benefit Plans (other than equity-based Employee Benefit Plans). Notwithstanding anything to the contrary in this Section 6.02, effective as of January 1, 2008, Purchaser shall make available to each Purchaser Employee group health coverage that is comparable to the group health coverage made available to the Purchaser Employees immediately prior to the Closing; provided further, that Purchaser shall directly reimburse each Purchaser Employee for Company Employee: (i) Purchaser will (or will cause the Company to) waive pre-existing condition requirements, evidence of insurability provisions, waiting period requirements or any COBRA premium similar provisions under any employee benefit plan or compensation arrangements maintained or sponsored by or contributed to by Purchaser or the Company for such Purchaser Company Employee pays to continue group health coverage under a Seller Group Health Plan during the period between after the Closing Date and December 31Date, 2007, less (ii) to the monthly amount such Purchaser Employee paid same extent waived for group health coverage Company Employees who are current participants under the applicable Seller Group Health Plan immediately Parent's employee benefit plans prior to the Closing Date. Seller understands . (ii) Purchaser will (or will cause the Company to) apply toward any deductible requirements and agrees that Purchaser’s flexible spending out-of-pocket maximum limits under its employee welfare benefit plans any similar amounts paid (or accrued) by each Company Employee under Parent's Employee Benefit Plans (which are welfare plans under ERISA Section 3(1)) during the current plan shall not be effective until January 1, 2008year. (b) Purchaser shall will (or will cause each plan or program maintained by Purchaser the Company to) recognize for purposes of participation, eligibility and vesting (but not for purposes of benefit accrual) under its employee benefit plans, the service of any Company Employee with the Company or any of its Affiliates in prior to the Closing Date. (c) Purchaser or the Company, as applicable, will be responsible for satisfying obligations under ERISA Section 601 et seq. and Code Section 4980B to provide continuation coverage to any Company Employee with respect to any "qualifying event" which a occurs on or after the Closing Date. (d) Purchaser Employee or the Company, as applicable, will become eligible be responsible for all workers' compensation benefits payable to participate Company Employees with respect to injuries to Company Employees that occur after the Closing Date in connection or, with respect to injuries which relate to an event(s) or circumstance(s) that straddle(s) the transactions contemplated by this Agreement to recognize all service Closing Date, if the date of the original claim relating to such injury is on or after the Closing Date, regardless of the date of injury. (e) Purchaser or the Company, as applicable, will cause the tax-qualified defined contribution plan established or maintained by Purchaser ("Purchaser's Savings Plan") to accept eligible rollover distributions (as defined in Code Section 402(c)(4)) from Company Employees with Seller for purposes of eligibility and vesting and, only with respect to any unused vacationaccount balances distributed to them on or as of the Closing Date by Parent's Employee Benefit Plans. Rollovers of outstanding loans under Parent's Employee Benefit Plans to Purchaser's Savings Plan will be permitted. The distribution and rollover described herein will comply with applicable law and each party will make all filings and take any actions required of such party under applicable law in connection therewith. Until March 31, sick leave or personal days credited 2010, Purchaser's Savings Plan will provide a matching contribution of not less than $1.00 for each $1.00 contributed by Purchaser pursuant each Company Employee up to Section 6.01(cthe first six percent of the Company Employee's annual compensation contributed to Purchaser's Savings Plan; provided, however, that such matching contribution shall be subject to the nondiscrimination requirements of Code Sections 410 and 401(m) (but for no other plan or program), benefit accrualas such requirements are applied generally to Purchaser's Savings Plan.

Purchaser Benefit Plans. (a) From the Closing Date through the first anniversary Purchaser will cause all plans and programs of the Closing Date, except as may be required by applicable Law or otherwise set forth herein, Purchaser shall provide Purchaser Employees with a level of aggregate employee benefits and compensation that is substantially comparable in the aggregate to the aggregate employee benefits and compensation provided to the Purchaser Employees as of immediately prior to the Closing taking into account all information provided, or made available in the Data Room, by Seller in respect of the Employee Benefit Plans (other than equity-based Employee Benefit Plans). Notwithstanding anything to the contrary in this Section 6.02, effective as of January 1, 2008, Purchaser shall make available to each Purchaser Employee group health coverage that is comparable to the group health coverage made available to the Purchaser Employees immediately prior to the Closing; provided further, that Purchaser shall directly reimburse each Purchaser Employee for (i) any COBRA premium such Purchaser Employee pays to continue group health coverage under a Seller Group Health Plan during the period between the Closing Date and December 31, 2007, less (ii) the monthly amount such Purchaser Employee paid for group health coverage under the applicable Seller Group Health Plan immediately prior to the Closing Date. Seller understands and agrees that Purchaser’s flexible spending plan shall not be effective until January 1, 2008. (b) Purchaser shall cause each plan or program maintained by Purchaser or any of its Affiliates in which a Purchaser Employee will become eligible to participate after the Closing Date in connection with the transactions contemplated by this Agreement to recognize all service of the Purchaser Continuing Employees with Seller Seller, the Company or any of its predecessors and Affiliates to the same extent and for the same purposes thereunder as such service was counted under the analogous Employee Plan in effect immediately prior to the Employee Transfer Date, for purposes of eligibility eligibility, vesting, benefit accrual and vesting anddetermining the level of vacation and severance benefits under any benefit or compensation plan, only program, policy or agreement made available to Continuing Employees on or after the Employee Transfer Date occurs (excluding any equity or equity-based, defined benefit pension, nonqualified or deferred compensation or retiree welfare benefits) (except that such service will not be counted to the extent that it would result in a duplication of benefits or compensation for the same period of service). With respect to any medical, dental or health plan of Purchaser, the Company, or any of their -53- NAI-1502820106v1 respective Affiliates that is made available to Continuing Employees following the Employee Transfer Date (a “Purchaser Group Health Plan”), in the calendar year in which the Employee Transfer Date occurs, Purchaser will use commercially reasonable efforts to cause the Company to not include with respect to any unused Continuing Employee any restrictions or limitations with respect to pre-existing condition exclusions or any actively-at-work requirements (except to the extent such restrictions or limitations were applicable as of the Employee Transfer Date under any similar plans of Seller, the Company or any of their Affiliates (a “Seller Group Health Plan”)), and any eligible expenses incurred by any Continuing Employee and his or her covered dependents during the portion of the plan year of such Seller Group Health Plan ending on the date such Continuing Employee’s participation in such Purchaser Group Health Plan begins will be taken into account under the Purchaser Group Health Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year as if such analogous amounts had been paid in accordance with such Purchaser Group Health Plan in effect immediately prior to the Employee Transfer Date. (b) Unless otherwise agreed between Seller and Purchaser, or pursuant to any transition welfare benefit coverage agreement between Seller and Purchaser, coverage for all Continuing Employees and their spouses and dependents under the Employee Plans that are sponsored and maintained by Seller will cease to be effective from and after the Employee Transfer Date, and with respect to all such Employee Plans, other with respect to any Company Plans, Seller shall take all actions necessary to amend all such Employee Plans to remove the DDS Companies as participating employers, effective as of the Closing Date, and Seller shall be responsible for and shall perform and discharge, or cause to be performed and discharge, and shall indemnify and hold harmless Purchaser and its Affiliates from and against (1) subject to Purchaser’s reimbursement obligation under Section 7.01(a), all accrued compensation due to any Continuing Employee for the period of their employment with Seller or its Subsidiaries (other than the Company) until the Employee Transfer Date, (2) the sponsorship of and all Liabilities under or with respect to any Employee Plans (other than Company Plans), including those Liabilities incurred or claimed in respect of any Continuing Employees or their covered dependents for benefits or claims made by any current or former employees of the Company prior to the Employee Transfer Date and (3) any Liabilities arising out of any claims made by any current or former employees of Seller or its Subsidiaries (other than the Company) related to such employee’s period of employment or service with Seller or one of its Subsidiaries prior to the Employee Transfer Date. Seller shall retain responsibility for all medical, dental and vision expenses and all other welfare plan expenses incurred by current or former employees of Seller or its Subsidiaries under the Employee Plans (other than a Company Plan) regardless of when incurred or reported. (c) Immediately prior to the Closing, the Company shall (i) transfer the sponsorship of and the assets and liabilities maintained pursuant or with respect to the Spartech Corporation 401(k) Savings & Investment Plan (the “Company Savings Plan”) to Seller and (ii) remove the Company as a participating employer in the Company -54- NAI-1502820106v1 Savings Plan, in each case, to be effective at least one day prior to the Closing (the “CSP Transfer Date”). Effective as of the CSP Transfer Date, the Seller shall maintain, operate, fund and administer the Company Savings Plan and any related trust, Contract or fund, in material compliance with its terms and any related documents or agreements and in material compliance with all applicable Laws. Effective as of the Employee Transfer Date, Purchaser will cover (or cause to be covered) each Continuing Employee, other than an Employee of DSS Canada, under one or more tax-qualified defined contribution plans that are intended to qualify under Section 401(a) of the Code (the “Purchaser’s Savings Plans”). In addition, Purchaser will cause one or more Purchaser Savings Plans to accept a direct rollover or an eligible rollover of all or a portion of a distribution of the account balance, including any outstanding loan, from the Company Savings Plan and the PolyOne Corporation Retirement Savings Plan (the “PolyOne Savings Plan”) of each Continuing Employee who is a participant thereunder as a rollover contribution; provided, however, that Purchaser’s Savings Plans will only be required to accept rollovers of outstanding loans during the 180-day period following the Employee Transfer Date. Effective as of the Employee Transfer Date Seller will take all necessary actions to: (1) amend the loan procedures of the Company Savings Plan and the PolyOne Savings Plan, if necessary, to permit U.S. Continuing Employees to continue to make payments of any outstanding loan under such plan during the 180-day period following the Employee Transfer Date; (2) provide full vesting of all amounts credited to account of any U.S. Continuing Employee under the Company Savings Plan and PolyOne Savings Plan or any other retirement plan intended to be qualified under Section 401(a) of the Code , as applicable; and (3) make the matching, profit sharing and any other employer contributions to the Company Savings Plan, PolyOne Savings Plan or any other retirement plan intended to be qualified under Section 401(a) of the Code on behalf of U.S. Continuing Employees, prorated for the portion of the plan year ending on the Employee Transfer Date; provided, however, that such employer contributions to the Company Savings Plan, PolyOne Savings Plan or any other retirement plan intended to be qualified under Section 401(a) of the Code will be made as soon as reasonably practicable following the Employee Transfer Date. Notwithstanding any other provision of this Section 7.02, to the extent that prior to the Closing Date any non-Continuing Employees (or any spouses or dependents thereof) participate in, or any other entity other than the Company is a participating employer of, any Company Plans (but excluding the Company Savings Plan), effective no later than the day prior to the Closing Date, such employees and entities shall cease participating in the Company Plans (but excluding the Company Savings Plan), and Seller or its Affiliates (other than the DSS Companies) shall take all necessary action to cause the Company to amend such Company Plans to remove the non-Continuing Employees (or spouses and dependents thereof) as participants and all other entities other than the Company as participating employers, and Seller or its Affiliates (other than the DSS Companies) shall enroll such employees in Employee Plans sponsored by the Seller (and, for the avoidance of doubt, excluding the Company Plans). -55- NAI-1502820106v1 (d) Purchaser will credit each Continuing Employee with the unused, accrued vacation, sick leave or personal days credited by Purchaser pursuant to Section 6.01(c) (but for no other plan or program), benefit accrualwhich the Continuing Employee is entitled through the Employee Transfer Date.

Purchaser Benefit Plans. (a) From Purchaser shall cause all plans and programs of Purchaser and its Affiliates in which Transferred Employees may be eligible to participate after the Closing Date through the first anniversary to recognize all service of the Closing DateTransferred Employees with Seller or any of its predecessors and Affiliates to the same extent as such service was counted under similar benefit plans of Seller or any of its predecessors and Affiliates for purposes of eligibility to participate, vesting and for purposes of determining severance, vacation, sickness and personal days or paid time off provided by Purchaser, except as may that no such credit shall be required by applicable Law given for purposes of determining benefit accruals under any pension, retirement or otherwise set forth hereindeferred compensation plans of Purchaser, and in no event shall any credit be given to the extent it would result in the duplication of benefits for the same period of service. For each self-funded medical, dental or health benefit plan of Purchaser, Purchaser shall provide Purchaser cause there to be waived any pre-existing condition, exclusion, and waiting period with respect to participation and coverage under any such health benefit plan in which such Transferred Employees with a level of aggregate employee benefits and compensation that is substantially comparable in (or the aggregate eligible dependants thereof) may be eligible to the aggregate employee benefits and compensation provided to the Purchaser Employees as of immediately prior to participate after the Closing taking into account all information and give effect, in determining any deductible, coinsurance and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed to, Transferred Employees (or the eligible dependants thereof) during the applicable plan year of the applicable Employee Plan in which such transfer occurs, provided, or made available that Seller provides the necessary data to Purchaser as soon as practicable following Closing; provided, further that such Transferred Employees and dependents were enrolled in the Data Room, by comparable Seller in respect of the Employee Benefit Plans (other than equity-based Employee Benefit Plans). Notwithstanding anything to the contrary in this Section 6.02, effective as of January 1, 2008, Purchaser shall make available to each Purchaser Employee group health coverage that is comparable to the group health coverage made available to the Purchaser Employees immediately prior to the Closing; provided furtherprovided, however, that the foregoing shall not apply to the extent it would result in duplication of benefits. To the extent that Purchaser maintains any fully insured medical, dental or health benefit plan, Purchaser shall directly reimburse each Purchaser Employee for (i) obtain the agreement of any COBRA premium such Purchaser Employee pays to continue group health coverage under a Seller Group Health Plan during the period between the Closing Date and December 31, 2007, less (ii) the monthly amount such Purchaser Employee paid for group health coverage applicable insurance carrier under the applicable Seller Group Health Plan relevant insurance contract for each health benefit plan of Purchaser in which the Transferred Employees become participants to comply with the immediately prior to the Closing Date. Seller understands and agrees that Purchaser’s flexible spending plan shall not be effective until January 1, 2008preceding sentence. (b) Purchaser shall cause (i) credit each plan or program maintained by Purchaser or any of its Affiliates in which a Purchaser Transferred Employee will become eligible to participate after the Closing Date in connection with the transactions contemplated by this Agreement to recognize all service of the Purchaser Employees with Seller for purposes of eligibility and vesting and, only with respect to any unused vacation, sick leave or personal days credited by to which the Transferred Employee is entitled through the Closing Date to the extent that (x) Seller shall have disclosed to Purchaser such unused vacation, sick leave or personal days prior to the Closing Date, and (y) an adjustment in favor of Purchaser is made pursuant to Section 6.01(c1.07 for the aggregate amount of the Liability represented by such unused vacation, sick leave or personal days, and (ii) ensure that such vacation, sick leave or personal days are not subject to forfeiture to the same extent not subject to forfeiture under the applicable Employee Plans as in effect immediately prior to the Closing Date; provided, however, that if Seller shall be required by applicable Law to pay any Transferred Employee the cash value of his or her unused vacation, sick leave or personal days described in this Section 8.02(b) because of a failure of Purchaser to comply with its obligations under this clause (but for no other plan or programb), then Purchaser shall reimburse Seller for the amount so paid by Seller and shall not be required to honor such vacation, sick leave or personal days. (c) Purchaser shall have the sole responsibility for “continuation coverage” benefits for all Transferred Employees and “qualified beneficiaries” of Transferred Employees for whom a “qualifying event” occurs after the Closing Date. Seller shall retain any such responsibility with respect to all Employees (or other employees of Seller and its Affiliates) and their “qualified beneficiaries” who do not become Transferred Employees and for all Transferred Employees and “qualified beneficiaries” of Transferred Employees for whom a “qualifying event” occurs before or on the Closing Date. The terms “continuation coverage,” “qualified beneficiaries” and “qualifying event” shall have the meanings ascribed to them under Section 4980B of the Code and Sections 601-608 of ERISA. (d) Except as specifically set forth in this Agreement: (i) Purchaser shall not be obligated to assume, continue or maintain any of the Employee Plans; (ii) no assets or liabilities of the Employee Plans shall be transferred to, or assumed by, Purchaser or Purchaser’s benefit accrualplans; and (iii) Seller and its Affiliates shall be solely responsible for funding and/or paying any benefits under any of the Employee Plans or any other benefit or compensation plans maintained by Seller or its Affiliates, including any incentive compensation, equity compensation, termination benefits and other employee entitlements accrued or payable under such plans.