Common use of Certain Employee Benefits Clause in Contracts

Certain Employee Benefits. In the event that Acquiror discontinues any Company Benefit Plans for the benefit of Continuing Employees and replaces them with new benefit plans, programs or arrangements or Acquiror Benefit Plans, Acquiror shall, or shall cause its Subsidiaries to, cause each such plan, program or arrangement to treat such Continuing Employee in the same manner as similarly situated employees of Acquiror and treat the prior service with the Company of each Continuing Employee (to the same extent such service is recognized under any analogous plans, programs or arrangements of the Company immediately prior to the Effective Time to the extent such a plan, program or arrangement is in effect immediately prior to the Effective Time) as service rendered to Acquiror or its Subsidiaries, as the case may be, solely for purposes of eligibility to participate and for vesting thereunder (but not for purposes of benefit accruals under a defined benefit plan). To the extent commercially reasonable, Acquiror and its Subsidiaries will cause any and all preexisting condition limitations (to the extent applicable) and eligibility waiting periods, under any health plans maintained or adopted by Acquiror or its Subsidiaries in which Covered Employees are eligible to participate after the Effective Time, to be waived with respect to (a) Continuing Employees who, immediately prior to the Effective Time, participated in a Company- sponsored health plan and (b) their eligible dependents. Acquiror and its Subsidiaries will make commercially reasonable efforts to recognize, for purposes of any annual deductible and out-of-pocket limits under its existing or any new health plans, deductible and out-of-pocket expenses paid by Continuing Employees and their dependents during the calendar year in which the Effective Time occurs under the health plans of the Company and its Subsidiaries. Nothing in this Section 5.11 shall 61 61 prevent Acquiror from amending or terminating any Company Benefit Plans or Acquiror Benefit Plans (or its Subsidiaries) or any other contracts, arrangements, commitments or understandings, in accordance with their terms and applicable law; providing, however, that the arrangements identified in Section 5.11 of the Company Disclosure Schedule shall be administered as described therein. No Continuing Employee who participates in any Acquiror Benefit Plan as of the date of this Agreement shall be adversely affected by the provisions of this section 5.11, other than the preservation of the rights of Acquiror or its Subsidiaries to amend or terminate any Company Benefit Plans or Acquiror Benefit Plans or any other contracts, arrangements, commitments or understandings, as set forth in the immediately preceding sentence.

Certain Employee Benefits. In the event that Acquiror discontinues any Company Benefit Plans for the benefit of Continuing Employees and replaces them with new benefit plans, programs or arrangements or Acquiror Benefit Plans, Acquiror shall, or shall cause its Subsidiaries to, cause each such plan, program or arrangement to treat such Continuing Employee in the same manner (a) As soon as similarly situated employees of Acquiror and treat the prior service with the Company of each Continuing Employee (to the same extent such service is recognized under any analogous plans, programs or arrangements of the Company immediately prior to the Effective Time to the extent such a plan, program or arrangement is in effect immediately prior to the Effective Time) as service rendered to Acquiror or its Subsidiaries, as the case may be, solely for purposes of eligibility to participate and for vesting thereunder (but not for purposes of benefit accruals under a defined benefit plan). To the extent commercially reasonable, Acquiror and its Subsidiaries will cause any and all preexisting condition limitations (to the extent applicable) and eligibility waiting periods, under any health plans maintained or adopted by Acquiror or its Subsidiaries in which Covered Employees are eligible to participate reasonably practicable after the Effective Time, the Acquiror shall cause accruals under the tax-qualified retirement plans and nonqualified retirement plans maintained by the Company and its Subsidiaries to cease. At the time such accruals cease, all affected participants' benefits under the tax-qualified retirement plans shall become fully vested, a partial year employer contribution shall be waived made under the Company ESOP for such partial year on a basis consistent with respect recent past practice for full years, and an employer matching contribution shall be made to the Company's 401(k) Plan for such partial year on the same basis (a) Continuing Employees who, immediately prior and the Company may amend the Company ESOP to the extent necessary to enable such contribution). As promptly as reasonably practicable after the Effective Time, participated in the Acquiror will cause the Company ESOP and the Company's 401(k) plan to be merged with the Acquiror's 401(k) plan; but prior to such merger, all participants (and beneficiaries of deceased participants) under the Company ESOP shall be provided an opportunity to receive immediate lump sum distributions of their entire balances which they may keep or rollover/transfer to personal IRAs or a Company- sponsored health tax-qualified defined contribution retirement plan of the Acquiror (and (b) their eligible dependentsthe Company may amend the Company ESOP to the extent necessary to enable such distribution). Coincident with the aforesaid cessation of accruals, the Acquiror shall cause employees covered by those discontinued plans to become covered by the tax-qualified retirement plans and the nonqualified defined benefit excess plan maintained by the Acquiror for the benefit of its employees. The Acquiror shall cause each such plan to recognize service with the Company and its Subsidiaries will make commercially reasonable efforts to recognize, before the Effective Time for purposes of any annual deductible determining eligibility to participate in the plans and out-of-pocket limits vesting in accrued benefits under the plans as if service with the Company and its existing or any new health plans, deductible and out-of-pocket expenses paid by Continuing Employees and their dependents during the calendar year in which Subsidiaries before the Effective Time occurs were service with the Acquiror. The Acquiror shall not be obligated to recognize such service for the purpose of determining the accrual of benefits under such plans. The Acquiror shall establish qualified plans, nonqualified plans or cash compensation arrangements (or a combination thereof) to provide to certain selected employees a benefit approximately equal to the amount, if any, of (1) the estimated amount of employer-provided benefits that these certain selected employees will receive under the health Acquiror's replacement plans, minus (2) the estimated amount of employer-provided benefits that these certain selected employees might have received under the discontinued plans of the Company and its Subsidiaries. Nothing Subsidiaries if those plans had continued in this Section 5.11 shall 61 61 prevent Acquiror from amending or terminating any Company Benefit Plans or Acquiror Benefit Plans (or its Subsidiaries) or any other contracts, arrangements, commitments or understandings, in accordance with their terms and applicable law; providing, however, that the arrangements identified in Section 5.11 of the Company Disclosure Schedule shall be administered as described therein. No Continuing Employee who participates in any Acquiror Benefit Plan as of the date of this Agreement shall be adversely affected by the provisions of this section 5.11, other than the preservation of the rights of Acquiror or its Subsidiaries to amend or terminate any Company Benefit Plans or Acquiror Benefit Plans or any other contracts, arrangements, commitments or understandings, as set forth in the immediately preceding sentenceeffect.

Certain Employee Benefits. In As soon as practicable after the event ------------------------- execution of this Agreement, Company and Parent shall confer and work together in good faith to agree upon mutually acceptable employee benefit and compensation arrangements in accordance with this Section 5.17 (and terminate certain Company Employee Plans as defined in Section 2.14(a)(ii) immediately prior to the Effective Time if appropriate). For a period of at least one year following the Effective Time, Parent shall provide (or cause to be provided) benefits to any person who was employed by Company or its subsidiaries immediately prior to the Effective Time and subsequently employed by Parent or its subsidiaries ("Company Employees") that Acquiror discontinues any Company Benefit Plans for the benefit of Continuing Employees and replaces them with new benefit plans, programs or arrangements or Acquiror Benefit Plans, Acquiror shall, or shall cause its Subsidiaries to, cause each such plan, program or arrangement to treat such Continuing Employee are either no less favorable in the same manner as similarly aggregate to the benefits provided to similarly-situated employees of Acquiror and treat Parent or are generally equivalent to the benefits provided under the Company Employee Plans in existence immediately prior to the Effective Time. After the Effective Time, Parent shall grant (or cause to be granted) to each Company Employee credit for all service with the Company of each Continuing Employee (to the same extent such service is recognized under any analogous plans, programs or arrangements of the Company immediately prior to the Effective Time to the same extent as if such service had been service with Parent for (i) all eligibility and vesting purposes under all employee benefit plans, policies, programs and arrangements of Parent and any of its subsidiaries that cover a Company Employee, (ii) vacation accrual purposes after the Effective Time, and (iii) purposes of satisfying any preexisting condition exclusion or actively-at-work requirement that would otherwise apply to such Company Employee under any medical, dental or other welfare benefit plans, policies, programs and arrangements of Parent and any of its subsidiaries that employ a Company Employee, to the extent that this clause (iii) does not violate the applicable plan, policy, program or arrangement is in effect immediately arrangement. In addition, Company agrees that it and its subsidiaries shall terminate any and all group severance, separation, retention and salary continuation plans, programs or arrangements (other than contractual agreements disclosed on the Company Disclosure Letter) prior to the Effective Time) as service rendered to Acquiror or its Subsidiaries, as the case may be, solely for purposes of eligibility to participate and for vesting thereunder (but not for purposes of benefit accruals under a defined benefit plan). To the extent commercially reasonable, Acquiror and its Subsidiaries will cause any and all preexisting condition limitations (to the extent applicable) and eligibility waiting periods, under any health plans maintained or adopted by Acquiror or its Subsidiaries in which Covered Employees are eligible to participate after the Effective Time, to be waived with respect to (a) Continuing Employees who, immediately prior to the Effective Time, participated in a Company- sponsored health plan and (b) their eligible dependents. Acquiror and its Subsidiaries will make commercially reasonable efforts to recognize, for purposes of any annual deductible and out-of-pocket limits under its existing or any new health plans, deductible and out-of-pocket expenses paid by Continuing Employees and their dependents during the calendar year in which the Effective Time occurs under the health plans of the Company and its Subsidiaries. Nothing in this Section 5.11 shall 61 61 prevent Acquiror from amending or terminating any Company Benefit Plans or Acquiror Benefit Plans (or its Subsidiaries) or any other contracts, arrangements, commitments or understandings, in accordance with their terms and applicable law; providing, however, that the arrangements identified in Section 5.11 of the Company Disclosure Schedule shall be administered as described therein. No Continuing Employee who participates in any Acquiror Benefit Plan as of the date of this Agreement shall be adversely affected by the provisions of this section 5.11, other than the preservation of the rights of Acquiror or its Subsidiaries to amend or terminate any Company Benefit Plans or Acquiror Benefit Plans or any other contracts, arrangements, commitments or understandings, as set forth in the immediately preceding sentence.

Certain Employee Benefits. In At the event that Effective Time, Acquiror discontinues will provide employees of the Company who as of the Effective Time become employed by Acquiror or any Company Benefit Plans for of its Subsidiaries, including the benefit of Continuing Employees and replaces them Surviving Corporation (the "Covered Employees") with new the employee benefit plans, programs and arrangements maintained by or arrangements contributed to Acquiror or its Subsidiaries and in which Covered Employees are eligible to participate after the Effective Time, substantially as and on the terms set forth on Schedule 5.11 hereto. In lieu thereof, Acquiror may elect to continue in effect the Company Benefit Plans with respect to the Surviving Corporation. Except as set forth on Schedule 5.11, for purposes of all Acquiror Plans, Acquiror shall, or shall cause its Subsidiaries to, cause each such plan, program or arrangement to treat such Continuing Employee in the same manner as similarly situated employees of Acquiror and treat the prior service with the Company of each Continuing Covered Employee (to the same extent such service is recognized under any analogous plans, programs or arrangements of the Company immediately prior to the Effective Time to the extent such a plan, program or arrangement is in effect immediately prior to the Effective Time) as service rendered to Acquiror or its Subsidiaries, as the case may be, solely for purposes of eligibility to participate and for vesting thereunder (but not for purposes of benefit accruals under a defined benefit planaccruals). To the extent commercially reasonable, Acquiror and its Subsidiaries will cause any and all preexisting pre-existing condition limitations (to the extent applicablesuch limitations did not apply to a pre-existing condition under the Company Benefit Plans) and eligibility waiting periods, under any health plans maintained or adopted by Acquiror or its Subsidiaries in which Covered Employees are eligible to participate after the Effective Time, to be waived with respect to (a) Continuing Covered Employees who, immediately prior to the Effective Time, participated in a Company- Company-sponsored health plan and (b) their eligible dependents. Acquiror and its Subsidiaries will make commercially reasonable efforts to recognize, for Exhibit 2.6-41 purposes of any annual deductible and out-of-pocket limits under its existing or any new health plans, deductible and out-of-pocket expenses paid by Continuing Covered Employees and their dependents during the calendar year in which the Effective Time occurs under the health plans of the Company Company. Acquiror and its SubsidiariesSubsidiaries shall honor, pursuant to the terms of the applicable benefit plans, and to the extent consistent with applicable law, all accrued employee benefit obligations to current and former employees of the Company under such plans. Nothing in this Section 5.11 shall 61 61 prevent Acquiror from amending or terminating any Company Benefit Plans or benefit plans of Acquiror Benefit Plans (or its Subsidiaries) or any other contracts, arrangements, commitments or understandings, in accordance with their terms and applicable law; providing, however, that the arrangements identified in Section 5.11 of the Company Disclosure Schedule shall be administered as described therein. No Continuing Employee who participates in any Acquiror Benefit Plan as of the date of this Agreement shall be adversely affected by the provisions of this section 5.11, other than the preservation of the rights of Acquiror or its Subsidiaries to amend or terminate any Company Benefit Plans or Acquiror Benefit Plans or any other contracts, arrangements, commitments or understandings, as set forth in the immediately preceding sentence.

Certain Employee Benefits. In the event that Acquiror discontinues any Company Benefit Plans for the benefit of Continuing Employees and replaces them with new benefit plans, programs or arrangements or Acquiror Benefit Plans, Acquiror shall, or shall cause its Subsidiaries to, cause each such plan, program or arrangement to treat such Continuing Employee in the same manner as similarly situated employees of the Acquiror and treat the prior service with the Company of each Continuing Covered Employee (to the same extent such service is recognized under any analogous plans, programs or arrangements of the Company immediately prior to the Effective Time to the extent such a plan, program or arrangement is in effect immediately prior to the Effective Time) as service rendered to the Acquiror or its Subsidiaries, as the case may be, solely for purposes of eligibility to participate and for vesting thereunder (but not for purposes of benefit accruals under a defined benefit planaccruals). To the extent commercially reasonable, The Acquiror and its Subsidiaries will cause any and all preexisting pre-existing condition limitations (to the extent applicablesuch limitations did not apply to a pre-existing condition under the new plan or Acquiror Benefit Plans) and eligibility waiting periods, under any health plans maintained or adopted by the Acquiror or its Subsidiaries in which Covered Employees are eligible to participate after the Effective Time, to be waived with respect to (a) Continuing Covered Employees who, immediately prior to the Effective Time, participated in a Company- sponsored health plan and (b) their eligible dependents. Acquiror and its Subsidiaries will make commercially reasonable efforts to recognize, for purposes of any annual deductible and out-of-pocket limits under its existing or any new health plans, deductible and out-of-pocket expenses paid by Continuing Employees and their dependents during the calendar year in which the Effective Time occurs under the health plans of the Company and its Subsidiaries. Nothing in this Section 5.11 shall 61 61 prevent Acquiror from amending or terminating any Company Benefit Plans or Acquiror Benefit Plans (or its Subsidiaries) or any other contracts, arrangements, commitments or understandings, in accordance with their terms and applicable law; providing, however, that the arrangements identified in Section 5.11 of the Company Disclosure Schedule shall be administered as described therein. No Continuing Employee who participates in any Acquiror Benefit Plan as of the date of this Agreement shall be adversely affected by the provisions of this section 5.11, other than the preservation of the rights of Acquiror or its Subsidiaries to amend or terminate any Company Benefit Plans or Acquiror Benefit Plans or any other contracts, arrangements, commitments or understandings, as set forth in the immediately preceding sentence.,

Certain Employee Benefits. In The Merger Agreement stipulates that, following the event Effective Time, Parent or Surviving Corporation will provide all employees of the Company at the Effective Time, and whose employment will continue following the Effective Time ("Assumed Employees"), with (i) compensation, employee benefits and terms and conditions of employment that Acquiror discontinues any Company Benefit Plans for the benefit of Continuing Employees and replaces them with new benefit plansare substantially comparable, programs or arrangements or Acquiror Benefit Plans, Acquiror shall, or shall cause its Subsidiaries to, cause each such plan, program or arrangement to treat such Continuing Employee in the same manner as similarly aggregate, to those that the Parent provides to similarly-situated employees of Acquiror Parent, (ii) compensation, employee benefits (other than equity related awards), and treat terms and conditions of employment that are substantially comparable, in the prior service with the Company of each Continuing Employee (aggregate, to the same extent such service is recognized under any analogous plans, programs or arrangements those of the Company immediately prior to the Effective Time to the extent such a plan, program or arrangement is as in effect immediately prior to the Effective TimeTime or (iii) as service rendered to Acquiror or its Subsidiaries, as the case may be, solely for purposes a combination of eligibility to participate and for vesting thereunder clauses (but not for purposes of benefit accruals under a defined benefit plan). To the extent commercially reasonable, Acquiror and its Subsidiaries will cause any and all preexisting condition limitations (to the extent applicablei) and eligibility waiting periods(ii); provided that such compensation, under any health plans maintained or adopted by Acquiror or its Subsidiaries employee benefits (other than equity related awards), and terms and conditions of employment are substantially comparable, in which Covered Employees are eligible to participate after the Effective Timeaggregate, to be waived with respect to (a) Continuing those in effect for the Assumed Employees who, immediately prior to the Effective Time. Following the Effective Time, participated in a Company- sponsored health plan Parent and (b) their eligible dependents. Acquiror and its Subsidiaries the Surviving Corporation will make commercially reasonable also use best efforts to recognize, cause all (i) pre-existing conditions and proof of insurability provisions for purposes of any annual deductible and out-of-pocket limits under its existing or any new health plans, deductible and out-of-pocket expenses paid by Continuing all conditions that all Assumed Employees and their covered dependents during have as of the calendar year in which Closing and (ii) waiting periods under each plan that would otherwise be applicable to newly hired employees to be waived to the Effective Time occurs same extent waived or satisfied under the health plans of the Company and its Subsidiaries. Nothing Plans; provided that nothing in this Section 5.11 sentence shall 61 61 prevent Acquiror limit the ability of Parent or the Surviving Corporation from amending or terminating any Company Benefit Plans employee benefit plan or Acquiror Benefit Plans (arrangement or its Subsidiaries) entering into new or any other contracts, different employee benefit plans or arrangements, commitments provided such plans or understandings, arrangements treat the Assumed Employees in accordance with their terms a substantially similar manner as employees of Parent are treated. Directors' and applicable law; providing, however, Officers' Indemnification and Insurance. The Merger Agreement provides that the arrangements identified in Section 5.11 charter documents of the Company Disclosure Schedule Surviving Corporation shall be administered as described therein. No Continuing Employee contain provisions with respect to indemnification in favor of those persons who participates in any Acquiror Benefit Plan are directors and officers of Esperion as of the date of this the Merger Agreement (the "Indemnified Persons") no less favorable than as provided in Esperion's certificate of incorporation and bylaws (as in effect as of the date of the Merger Agreement) and which shall not be amended, repealed or otherwise modified for a period of six years from the Effective Time. In addition, the Merger Agreement requires that Parent cause the Surviving Corporation to maintain in effect for six years from the Effective Time, the officers' and directors' liability insurance policies maintained by Xxxxxxxx as of the date of the Merger Agreement with respect to matters determined prior to the Effective Time. However, the Surviving Corporation is not required to expend more than an amount per year equal to 150% of the annual premium paid by Esperion for such insurance as of the date of the Agreement. Conditions to the Merger. The Merger Agreement provides that the respective obligations of the parties to complete the Merger are subject to the satisfaction or waiver at or prior to the Effective Time, of the following conditions: - if required by applicable law, the Merger Agreement must be adopted by the affirmative vote of the holders of greater than 50% of the shares of Company Common Stock outstanding on the record date for the meeting of the holders of Company Common Stock to vote on the adoption of the Merger Agreement; - no law having been entered, enacted, promulgated, enforced or issued by any court or other governmental authority or other legal restraint or prohibition, shall be adversely affected in effect preventing or prohibiting consummation of the Merger; and - Merger Sub has accepted for payment and paid for shares of Company Common Stock pursuant to the Offer. Termination of the Merger Agreement. The Merger Agreement provides that it may be terminated: - by mutual written agreement of the parties, duly authorized by the provisions board of this section 5.11directors of each of Parent and the Company; - by any of Parent or the Company if (i) the Offer has not been consummated on or before September 19, 2004 (or December 19, 2004 if the only closing conditions that have not been satisfied or waived are the conditions regarding no injunctions or legal restraints preventing or prohibiting the consummation of the Merger being in effect); provided that the right to terminate the Merger Agreement is not available to any party whose failure to fulfill any obligation under the Merger Agreement has been the cause of, or resulted in, the failure of the Offer to be consummated on or before such date or (ii) there shall be any law that makes consummation of the Offer or the Merger illegal or otherwise prohibited or if any court of competent jurisdiction or a governmental authority has issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the Offer or the Merger and such order, decree, ruling or other action has become final and non-appealable; - by Parent if (i) the Board withdraws, modifies or changes its recommendation of the Merger Agreement, the Offer or the Merger in a manner adverse to Parent or Merger Sub or has resolved to do any of the foregoing or the Board has recommended to the stockholders of the Company any competing transaction or resolved to do so, (ii) the Board or any committee thereof has approved or recommended any Superior Proposal, (iii) a tender or exchange offer relating to the Company's securities has been commenced by a person unaffiliated with Parent and the Company has not sent to its security holders pursuant to Rule 14e-2 promulgated under the Exchange Act (within ten (10) business days after such tender or exchange offer is first published, sent or given) a statement disclosing that the Board recommends rejection of such tender or exchange offer or (iv) the Company has violated or breached in any material respect any of its obligations regarding non-solicitation; - by the Company (i) if Xxxxxx Sub has failed to commence the Offer within ten business days following the date of the Merger Agreement; provided that the failure by Xxxxxx Sub to commence the Offer is not due in any way to any action or failure to act on the part of the Company or (ii) in order to enter into a definitive agreement with respect to a Superior Proposal; - by Parent if (i) the Offer has been extended for an aggregate period of at least 15 business days beyond the initial Expiration Date, and (ii) on such extended date of expiration, the Minimum Condition has not been satisfied; - by the Company, if prior to the acceptance for payment of the shares of Company Common Stock under the Offer, (i) Parent has materially breached or failed to perform in any material respect its obligations, covenants or agreements under the Merger Agreement (except to the extent such breach, together with all such breaches, does not and would not be likely to have a material adverse effect on Parent's or Merger Sub's ability to consummate the Offer or the Merger), or (ii) the representations and warranties of Parent contained in the Merger Agreement were not true and correct when made or at the consummation of the Offer as if made at and as of such time (other than representations and warranties which by their terms address matters only as of another specified date, which shall be true and correct only as of such date), except for such failures to be true and correct that do not and would not be likely to have a material adverse effect on Parent's or Merger Sub's ability to consummate the preservation Offer or the Merger (a "Terminating Parent Breach"); or - by Parent, if prior to the acceptance for payment of the rights shares of Acquiror Company Common Stock under the Offer, the Company has breached any representation, warranty, or its Subsidiaries to amend or terminate any Company Benefit Plans or Acquiror Benefit Plans or any other contracts, arrangements, commitments or understandings, as agreement set forth in the immediately preceding sentenceMerger Agreement, which breach is reasonably likely to result in any condition of the Offer not being satisfied on or prior to expiration of the Offer (a "Terminating Company Breach").

Certain Employee Benefits. In At the event that Effective Time, the Acquiror discontinues will provide employees of the Company who as of the Effective Time become employed by the Acquiror or any Company Benefit Plans for of its Subsidiaries (the benefit of Continuing Employees and replaces them "Covered Employees"), with new employee benefit plans, programs and arrangements that in the 39 aggregate are substantially comparable to those currently provided by the Company (other than plans, programs and arrangements involving the potential issuance of securities of the Company) or, at the option of the Acquiror, the Acquiror will maintain such plans, programs and arrangements currently provided by the Company. For purposes of all employee benefit plans, programs and arrangements maintained or arrangements or contributed to by the Acquiror Benefit Plansand its Subsidiaries, the Acquiror shall, or shall cause its Subsidiaries to, cause each such plan, program or arrangement to treat such Continuing Employee in the same manner as similarly situated employees of Acquiror and treat the prior service with the Company of each Continuing Covered Employee (to the same extent such service is recognized under any analogous plans, programs or arrangements of the Company immediately prior to the Effective Time to the extent such a plan, program or arrangement is in effect immediately prior to the Effective Timeeffective date) as service rendered to the Acquiror or its Subsidiaries, as the case may be, solely for purposes of eligibility to participate and for vesting thereunder (but not for purposes of benefit accruals under a defined benefit plan)thereunder. To the extent commercially reasonable, The Acquiror and its Subsidiaries will cause any and all preexisting pre-existing condition limitations (to the extent applicablesuch limitations did not apply to a pre-existing condition under the Compensation Plans) and eligibility waiting periods, periods under any health plans maintained or adopted by Acquiror or its Subsidiaries in which Covered Employees are eligible to participate after the Effective Time, to be waived with respect to (a) Continuing Covered Employees who, immediately prior to the Effective Time, participated in a Company- sponsored health plan plan, and (b) their eligible dependents. The Acquiror shall honor, pursuant to the terms of the Previously Disclosed Compensation Plans, and its Subsidiaries will make commercially reasonable efforts to recognizethe extent consistent with applicable law, for purposes of any annual deductible all employee benefit obligations to current and out-of-pocket limits under its existing or any new health plans, deductible and out-of-pocket expenses paid by Continuing Employees and their dependents during the calendar year in which the Effective Time occurs under the health plans former employees of the Company and its Subsidiariesunder such plans. Nothing in this Section 5.11 6.12 shall 61 61 prevent Acquiror from amending or terminating any Compensation Plans of the Company Benefit Plans or the Acquiror Benefit Plans (or its Subsidiaries) or any other contracts, arrangements, commitments or understandings, in accordance with their terms and applicable law; providing, however, that the arrangements identified in Section 5.11 of the Company Disclosure Schedule shall be administered as described therein. No Continuing Employee who participates in any Acquiror Benefit Plan as of the date of this Agreement shall be adversely affected by the provisions of this section 5.11, other than the preservation of the rights of Acquiror or its Subsidiaries to amend or terminate any Company Benefit Plans or Acquiror Benefit Plans or any other contracts, arrangements, commitments or understandings, as set forth in the immediately preceding sentence.

Certain Employee Benefits. In the event that Acquiror discontinues any Company Benefit Plans for the benefit of Continuing Employees and replaces them with new benefit plans, programs or arrangements or Acquiror Benefit Plans, Acquiror shall, or shall cause its Subsidiaries to, cause each such plan, program or arrangement to treat such Continuing Employee in the same manner as similarly situated employees of the Acquiror and treat the prior service with the Company of each Continuing Covered Employee (to the same extent such service is recognized under any analogous plans, programs or arrangements of the Company immediately prior to the Effective Time to the extent such a plan, program or arrangement is in effect immediately prior to the Effective Time) as service rendered to the Acquiror or its Subsidiaries, as the case may be, solely for purposes of eligibility to participate and for vesting thereunder (but not for purposes of benefit accruals under a defined benefit planaccruals). To the extent commercially reasonable, The Acquiror and its Subsidiaries will cause any and all preexisting pre-existing condition limitations (to the extent applicablesuch limitations did not apply to a pre-existing condition under the new plan or Acquiror Benefit Plans) and eligibility waiting periods, under any health plans maintained or adopted by the Acquiror or its Subsidiaries in which Covered Employees are eligible to participate after the Effective Time, to be waived with respect to (a) Continuing Covered Employees who, immediately prior to the Effective Time, participated in a Company- Company-sponsored health plan and (b) their eligible dependents. The Acquiror and its Subsidiaries will make commercially reasonable efforts to recognize, for purposes of any annual deductible and out-of-pocket limits under its existing or any new health plans, deductible and out-of-pocket expenses paid by Continuing Covered Employees and their dependents during the calendar year in which the Effective Time occurs under the health plans of the Company and its Subsidiaries. The Acquiror and its Subsidiaries shall honor, pursuant to the terms of the Previously Disclosed Company Benefit Plans, and to the extent consistent with applicable law, all accrued employee benefit obligations to current and former employees of the Company under such plans. Nothing in this Section 5.11 shall 61 61 prevent Acquiror from amending or terminating any Company Benefit Plans or benefit plans of the Acquiror Benefit Plans (or its Subsidiaries) or any other contracts, arrangements, commitments or understandings, in accordance with their terms and applicable law; providing, however, that the arrangements identified in Section 5.11 of the Company Disclosure Schedule shall be administered as described therein. No Continuing Employee who participates The Acquiror acknowledges that the consummation of the Merger (or, if otherwise provided under the applicable Company Benefit Plan, the approval of the Merger by the Company's shareholders) shall constitute a "Change of Control" or "Change in any Acquiror Control" or "Change of Control not initiated by the Company" for purposes of each Company Benefit Plan as of for which the date of this Agreement shall be adversely affected by the provisions of this section 5.11, other than the preservation of the rights of Acquiror or its Subsidiaries to amend or terminate any Company Benefit Plans or Acquiror Benefit Plans or any other contracts, arrangements, commitments or understandings, as set forth in the immediately preceding sentenceconcept is relevant.