Common use of Employment and Employee Benefits Clause in Contracts

Employment and Employee Benefits. (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 Closing Date, (y) employee benefit and incentive plans, programs, contracts and arrangements that are substantially similar, in the aggregate, to the Company Benefit Plans (excluding stock-based compensation) provided by the Company and its Subsidiaries to Transferred Employees prior to the Merger Closing Date, and (z) at least the same level of severance payments and benefits as would have been provided under the Company’s severance 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-end audit), the same level of cash incentive bonus opportunity as in effect immediately prior to the Merger Closing Date. From and after the Merger Closing Date, Buyer or one of its Affiliates shall honor, and shall cause the Surviving Corporation and 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-based compensation) as in effect immediately prior to the Merger Closing Date that are applicable to any Employees. Buyer or one of its Affiliates shall recognize the services of the Transferred Employees with the Company and its Subsidiaries prior to the Merger Closing Date as service with Buyer and its 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 welfare benefit 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, and (ii) provide credit to Transferred Employees for any co-payments, deductibles and out-of-pocket expenses paid by such Transferred Employees under the employee benefit plans, programs and arrangements of the Company and its Subsidiaries during the portion of the relevant plan year including the Merger Closing Date.

Employment and Employee Benefits. (a) Buyer shall cause the Surviving Corporation and its Subsidiaries Acquired Company, for a period of not less than 91 days after the Closing Date to provide Employees who continue to be the employment of all or substantially all of the persons actively employed by the Surviving Corporation and its Subsidiaries after Acquired Company as of 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 time immediately prior to the Merger Closing Date(collectively, the "Continuing Employees"), at salary or hourly wage rates (yas the case may be) employee benefit and incentive plans, programs, contracts and arrangements that are substantially similar, in not less than the aggregate, to the Company Benefit Plans (excluding stock-based compensation) provided by the Company and its Subsidiaries to Transferred Employees prior to the Merger Closing Date, and (z) at least the same level of severance payments and benefits as would have been provided under the Company’s severance plans salary or policies as hourly wage rates in effect as of the time immediately prior to the Merger Closing DateClosing; provided that the foregoing shall not be construed to limit the ability of Buyer, the Acquired Company or any of their Affiliates to terminate the employment of any employee (including any Continuing Employee) at any time and (ii) for any or no reason. On or before the period immediately following the Merger Closing Date until December 31Selling Shareholder shall provide Buyer with a list of employee layoffs, 2015 (it being acknowledged that payments related to by location, implemented by the Company’s 2014 fiscal year incentive plans will be paid promptly after completion of Acquired Company in the 2014 fiscal year90-end audit), day period preceding the same level of cash incentive bonus opportunity as in effect immediately prior to the Merger Closing Date. From and after the Merger Closing Date, Buyer or one of its Affiliates shall honor, and shall cause the Surviving Corporation all its and 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-based compensation) as in effect immediately prior to the Merger Closing Date that are applicable to any Employees. Buyer or one of its Affiliates shall recognize the services of the Transferred Employees with the Company and its Subsidiaries prior to the Merger Closing Date as service with Buyer and its Affiliates in connection with any pension or Affiliate's welfare benefit plans and policies (including vacationmedical, paid time off dental, vision, life insurance and holiday policiesshort-term and long-term disability benefit plans) maintained by Buyer or one of its Affiliates in which is made available Continuing Employees are eligible to participate 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 to: (i) waive, or cause its insurance carriers to waive, in the plan year in which the Closing Date occurs waive all limitations as to pre-existing and at-work preexisting conditions, if any, exclusions and waiting periods with respect to participation and coverage requirements applicable to Transferred the Continuing Employees and their covered dependents under any welfare benefit plan such plans (except to the extent such conditions, exclusions or waiting periods would apply under the Acquired Company's or Selling Shareholder's plans as defined in Section 3(1) of ERISA) which is made available existence prior to Transferred Employees following the Merger Closing Date by Buyer or one of its Affiliates, Closing); and (ii) provide each Continuing Employee and his or her covered dependents with credit to Transferred Employees for any co-payments, payments and deductibles and paid prior to Closing in satisfying any applicable deductible or out-of-pocket expenses paid by requirements or limitations under such Transferred Employees under plans in the plan year in which the Closing Date occurs. In connection with the Continuing Employees' participation in any employee benefit plansplan, programs 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 arrangements 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 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, any of the Purchased Subsidiaries, or any 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 any current or former employee of the Company and its Subsidiaries during the portion or any Purchased Subsidiary who (i) as of the relevant 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 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 including or portion thereof ending on the Merger 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 respect to all Continuing Employees for the period 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 ability of the Buyer, the Company, the Purchased Subsidiaries or any of their Affiliates to amend, modify or terminate any benefit plan, program, agreement or arrangement at any time 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 any mail and other communications received by Buyer 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. To the 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) the 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 damage of the Acquired Company arising out of insured incidents occurring on or prior to 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 loss, liability or damage of the Acquired Company properly asserted with the insurance carrier prior to the Closing Date under the Policies arising out of insured incidents occurring prior to the Closing Date. Selling Shareholder shall remain responsible for payments with respect to any applicable deductibles, retentions, self-insurance provisions or any similar payment or reimbursement obligations of Selling Shareholder or any of its Affiliates under the Policies in respect of claims asserted pursuant to Section 9.6(a).

Employment and Employee Benefits. (a) Buyer shall covenants and agrees to provide, or cause the Surviving Corporation Company and its Subsidiaries to provide Employees provide, to each employee of the Company or its Subsidiaries immediately prior to the Closing who continue to be employed by remains an employee of the Surviving Corporation and Company or its Subsidiaries after following the Merger Closing (each, a “Company Employee”) (i) for a period of one (1) year following the Closing Date (the “Transferred EmployeesContinuation Period”), (iA) for an annual base salary or annual base wage rate that is no less favorable than the period of twelve (12) months annual base salary or annual base wage rate provided to such Company Employee immediately following prior to the Merger 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) at least the same level of base salary Surviving Company and hourly wages as 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 Merger Closing DateDate until such Company Employee begins participating in the corresponding plan, program or arrangement of Buyer and (y) employee benefit and incentive plans, programs, contracts and arrangements that are substantially similar, in the aggregate, to the Company Benefit Plans (excluding stock-based compensation) provided by Employees to commence participation in Buyer’s defined contribution plan as soon as reasonably practicable following the Company and its Subsidiaries to Transferred Employees prior to the Merger Closing Date, and (z) at least the same level of severance payments and benefits as would have been provided under the Company’s severance plans or policies as in effect immediately prior to the Merger Closing Date; Date and (ii) for the period immediately following 2014 performance period, cash target incentive compensation opportunities (for the Merger Closing Date until December 31avoidance for doubt, 2015 excluding equity incentives) that are no less favorable than the cash target incentive compensation opportunities (it being acknowledged that payments related for the avoidance of doubt, excluding equity incentives) provided to the Company’s 2014 fiscal year incentive plans will be paid promptly after completion of the 2014 fiscal year-end audit), the same level of cash incentive bonus opportunity as in effect such Company Employee immediately prior to the Merger Closing Date. From and after In addition, during the Merger Closing DateContinuation Period, Buyer shall provide, or one of its Affiliates shall honor, and shall cause the Surviving Corporation Company and its Subsidiaries to honorprovide, to each Company Employee whose employment is terminated without “cause” (determined in accordance with their termsthe discretion of Buyer, all employmentthe Surviving Company or a Subsidiary thereof, retention and severance agreements and all severance, incentive and bonus plans, programs and arrangements (excluding with respect to stock-based compensationas applicable) as in effect immediately prior to the Merger Closing Date that are applicable to any Employees. Buyer or one of its Affiliates shall recognize the services of the Transferred Employees with the Company and its Subsidiaries prior to the Merger Closing Date as service with Buyer and its 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 welfare benefit 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, and (ii) provide credit to Transferred Employees for any co-payments, deductibles and out-of-pocket expenses paid by such Transferred Employees under the employee benefit plans, programs and arrangements of the Company and its Subsidiaries during the portion of Continuation Period, the relevant plan year including the Merger Closing Datecash severance benefits described on Schedule 8.10(a).

Employment and Employee Benefits. (a) Buyer shall cause 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 its 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 to provide 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 who continue to be employed as of and after the Effective Time by the Surviving Corporation and or its Subsidiaries after the Merger Closing Date Affiliates (the each, a “Transferred EmployeesSurviving Corporation Plan”), (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 Closing Date, (y) employee benefit and incentive plans, programs, contracts and arrangements that are substantially similar, in the aggregate, to the Company Benefit Plans (excluding stock-based compensation) provided extent such service was recognized for such purpose by the Company and its Subsidiaries to Transferred Employees prior to the Merger Closing Date, and Plan (z) at least the same level of severance payments and benefits as would have been provided under the Company’s severance 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-end audit), the same level of cash incentive bonus opportunity as in effect immediately prior to the Merger Closing Date. From and after the Merger Closing Date, Buyer or one of its Affiliates shall honor, and shall cause the Surviving Corporation and 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-based compensation) as in effect immediately prior to the Merger Closing Date that are applicable to any Employees. Buyer or one of its Affiliates shall recognize the services of the Transferred Employees with the Company and its Subsidiaries prior to the Merger Closing Date as service with Buyer and its 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 but not for purposes of any waiting period, vesting, eligibility and benefit entitlementaccrual 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). 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 With respect to participation and coverage requirements applicable to Transferred Employees under any each Surviving Corporation Plan that is a “welfare benefit plan plan” (as defined in Section 3(1) of ERISA), the Surviving Corporation will: (i) which 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 made available to Transferred Employees following the Merger Closing Date by Buyer or one of its Affiliates, a welfare benefit plan and (ii) provide credit to Transferred Employees for give effect, in determining any co-payments, deductibles deductible and maximum out-of-pocket expenses limitations, to claims incurred and amounts paid by such Transferred by, and amounts reimbursed or reimbursable to, Company Employees under similar Company Plans for the employee benefit planscalendar 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 and arrangements 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 during (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 portion programs of the relevant plan year including 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 Closing DateAgreement, 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. (a) Buyer 0xx Xxxxxx shall cause establish and adopt, effective January 1, 2019, a safe harbor 401(k) plan meeting the Surviving Corporation requirements of Code Section 401(k)(12)(B) and its Subsidiaries to provide Employees who continue to be employed by the Surviving Corporation and its Subsidiaries after the Merger Closing Date 401(m)(11) (the “Transferred Employees8th Avenue Savings Investment Plan”)) and require, provided that there is no qualification error with respect to the Post Savings Investment Plan (“Post SIP”) that has not been remedied through the Employee Plans Compliance Resolution System, that the trust that funds the 8th Avenue Savings Investment Plan shall accept a direct trust-to-trust transfer of the account balances of such eligible Company employees from the trust that funds the Post SIP subject to the “anti-cutback” rules of Section 411(d)(6) of the Code. Without limiting the foregoing, 0xx Xxxxxx shall ensure that the 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 period of twelve 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 (12ii) months immediately following the Merger Closing Date, (x) at least the same level of base salary and hourly wages as difference in effect immediately prior to the Merger Closing Date, (y) employee benefit and incentive plans, programs, contracts and arrangements that are substantially similarsuch proposed terms would pose a risk, in the aggregatereasonable 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 and facilitate the participation of eligible Company Benefit Plans (excluding stock-based compensation) provided by the Company and its Subsidiaries to Transferred Employees prior to the Merger Closing Dateemployees, and (z) at least the same level who, as of severance payments and benefits as would have been provided under the Company’s severance 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 2018, were eligible to participate in the Company’s 2014 fiscal year incentive plans will be paid promptly after completion of the 2014 fiscal year-end audit), the same level of cash incentive bonus opportunity as in effect immediately prior to the Merger Closing Date. From and after the Merger Closing Date, Buyer or one of its Affiliates shall honor, and shall cause the Surviving Corporation and 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-based compensation) as in effect immediately prior to the Merger Closing Date that are applicable to any Employees. Buyer or one of its Affiliates shall recognize the services of the Transferred Employees with the Company and its Subsidiaries prior to the Merger Closing Date as service with Buyer and its 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 welfare benefit 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, and (ii) provide credit to Transferred Employees for any co-payments, deductibles and out-of-pocket expenses paid by such Transferred Employees under the employee benefit plans, programs and arrangements of the Company and its Subsidiaries during the portion of the relevant plan year including the Merger Closing DatePost SIP.

Employment and Employee Benefits. (a) Buyer shall cause Purchaser covenants and agrees that each employee of the Surviving Corporation and its Company or any of the Subsidiaries immediately prior to provide Employees who continue to be the Closing shall, while employed by during the Surviving Corporation and its Subsidiaries after one (1) year period beginning on the Merger Closing Date (the “Transferred Employees”), (i) for the period of twelve (12) months immediately following the Merger Closing Date, (x) receive at least the same level of base salary and or hourly wages wage rate as in effect provided to such employee immediately prior to the Merger Closing; provided, that Purchaser may adjust such base salary or hourly wage to reasonably reflect any change in responsibilities or based upon such employee’s performance following the Closing. Such individuals who continue their employment with the Company or the Subsidiaries following the Closing DateDate are hereinafter referred to as the “Continuing Employees.” For a period of one (1) year following the Closing Date or such longer period of time required by applicable Law (the “Benefit Period”), (y) Purchaser shall cause the Company and the Subsidiaries to provide Continuing Employees in each country with employee benefit and incentive plans, programs, contracts and arrangements benefits that are substantially similarcomparable, in the aggregate, to those provided to similarly situated employees of the Company Benefit Plans (excluding stock-based compensation) Purchaser or those provided by the Company and its Subsidiaries to Transferred such Continuing Employees prior to the Merger Closing Date, and (z) at least the same level of severance payments and benefits as would have been provided under the Company’s severance 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-end audit), the same level of cash incentive bonus opportunity as in effect immediately prior to the Merger Closing Date. From and after the Merger Closing Date, Buyer 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 than the severance benefits described on Schedule 8.12(a); provided, further, that Purchaser shall retain the sole discretion to amend, restate, merge or one of its Affiliates shall honor, and shall cause terminate any Company Benefit Plan at any time after the Surviving Corporation and 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-based compensation) Closing. Except as in effect immediately prior otherwise required under applicable Law or to the Merger Closing Date that are applicable to any Employees. Buyer or one of its Affiliates shall recognize the services of the Transferred Employees extent expressly set forth in a written agreement with the Company and its Subsidiaries prior to the Merger Closing Date as service with Buyer and its Affiliates in connection with any pension or welfare benefit plans and policies (including vacationa Subsidiary, 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 welfare benefit 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, and (ii) provide credit to Transferred Employees for any co-payments, deductibles and out-of-pocket expenses paid by such Transferred Employees under the employee benefit plans, programs and arrangements employees of the Company and its Subsidiaries during the portion or any of the relevant plan year Subsidiaries, including Continuing Employees, shall be considered to be employed “at will” and nothing shall be construed to limit the Merger Closing Dateability of Purchaser, the Company or any of the Subsidiaries to terminate the employment of any such employee at any time, subject to any applicable severance and related benefits.

Employment and Employee Benefits. (a) Buyer shall Pursuant to the Merger Agreement, Xxxxx has agreed that it will, or will cause the Surviving Corporation and its Subsidiaries to, for a period of one year following the Closing, provide to provide Employees each employee of CoLucid who continue to be employed by continues employment with Lilly or the Surviving Corporation and its Subsidiaries after the Merger Closing Date during such one-year period (the a “Transferred EmployeesContinuing Employee”), ): (i) for the period of twelve (12) months immediately following the Merger Closing Date, (x) at least the same level salary or hourly wage rate provided to such Continuing Employee immediately prior to the Effective Time; (ii) the same short-term (annual or more frequent) target bonus opportunity provided to such Continuing Employee immediately prior to the Effective Time; and (iii) benefits (excluding equity and equity-based awards and change in control plans, programs or arrangements) that are substantially comparable to those provided to such Continuing Employee under the benefit plans, programs, policies, agreements and arrangements of base salary and hourly wages as CoLucid in effect immediately prior to the Effective Time. Nothing contained in the Merger Closing DateAgreement will be construed as precluding the Surviving Corporation from terminating the employment of any Continuing Employee for any lawful reason. Pursuant to the Merger Agreement, (y) from and after the Effective Time, Lilly has agreed that it will honor and will cause the Surviving Corporation to honor all employee benefit and incentive plans, programs, contracts and arrangements that are substantially similar, in the aggregate, to the Company Benefit Plans plans of CoLucid (excluding stock-based compensation) provided by the Company Equity Plans and its Subsidiaries to Transferred Employees the ESPP that will be terminated at or prior to the Effective Time in accordance with the Merger Closing DateAgreement), and (z) at least the same level of severance payments and benefits as would have been provided under the Company’s severance plans or policies in each case in accordance with their terms as in effect immediately prior to before the Effective Time, except that the Merger Closing Date; and (ii) for Agreement does not prevent 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 amendment or termination of the 2014 fiscal year-end audit), the same level of cash incentive bonus opportunity as in effect immediately prior to the Merger Closing Date. From and after the Merger Closing Date, Buyer any specific employee benefit plan or one of its Affiliates shall honor, and shall cause the Surviving Corporation and its Subsidiaries to honor, contract 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-based compensation) as in effect immediately prior to the terms thereof. The Merger Closing Date Agreement provides that are applicable to any Employees. Buyer or one of its Affiliates shall recognize the services of the Transferred Employees with the Company and its Subsidiaries prior to the Merger Closing Date as service with Buyer and its 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, participation, eligibility for vacation pay 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 welfare benefit plan (as defined in Section 3(1) level of ERISA) which is made available to Transferred Employees following the Merger Closing Date by Buyer or one of its Affiliates, and (ii) provide credit to Transferred Employees for any co-payments, deductibles and out-of-pocket expenses paid by such Transferred Employees benefits under the employee benefit plans, programs and arrangements plans of the Company and its Subsidiaries during the portion of the relevant plan year including the Merger Closing Date.Lilly providing benefits to any Continuing Employees after the

Employment and Employee Benefits. (a) Buyer Not less than two (2) Business Days after such time (if any) as Purchaser shall cause become 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 Successful Bidder (the “Transferred Employees”as defined in Exhibit A), Purchaser or Manager shall deliver, in writing, an offer of employment to each of the employees (ifull or part time) for of the period Business (other than employees of twelve (12) months the Company but including the so-called "CHIEF EXECUTIVE OFFICERS" of the Facilities), who are active employees of any Seller immediately prior to the Closing, to commence employment with Manager immediately following the Merger Closing Date(it being agreed that Seller staffing levels shall not be increased between the date hereof and the Closing in any material respect), (x) which offer shall be conditioned on the Closing and the applicable employee's continued employment as an active employee of any Seller as of the Closing. Each such offer of employment shall be at least substantively the same level of base salary or hourly wage rate and hourly wages as position in effect immediately prior to the Merger Closing Dateand 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 (ye) 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 benefit 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 incentive plansworkers compensation leave), programsand who, contracts and arrangements that are substantially similarwithin the shorter of the period ending three (3) months following the Closing or the period ending seven (7) days following such vacation, in the aggregateholiday, jury duty or approved leave of absence, presents himself or herself to the Company Benefit Plans Manager as ready, willing and able (excluding stock-based compensationto the Manager's reasonable satisfaction) provided by to commence the Company and its Subsidiaries same active employment with the Manager, shall be deemed to be a Transferred Employee as of the time of such commencement. It is the present intent of Purchaser to continue the employment of a substantial number of the Transferred Employees prior to the Merger Closing Date, and (z) for at least the same level of severance payments and benefits as would have been provided under the Company’s severance plans or policies as in effect immediately prior to the Merger Closing Date; and (ii) for the period immediately one year following the Merger Closing Date until December 31Closing; provided, 2015 (it being acknowledged however, that payments related to the Company’s 2014 fiscal year incentive plans such Transferred Employees will be paid promptly after completion at-will employees of Purchaser or Manager and Purchaser or Manager, as the 2014 fiscal year-end audit)case may be, will retain the same level right to terminate the employment of cash incentive bonus opportunity as in effect immediately prior to the Merger Closing Date. From and after the Merger Closing Date, Buyer any or one of its Affiliates shall honor, and shall cause the Surviving Corporation and 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-based compensation) as in effect immediately prior to the Merger Closing Date that are applicable to any Employees. Buyer or one of its Affiliates shall recognize the services of the Transferred Employees with or without cause and with or without reason at any time following the Company Closing and its Subsidiaries to change any or all of the terms and conditions of employment at any time following the Closing. As of the day before the Closing Date, Sellers shall terminate their employment of all employees of the Business who are employed as of such date (other than the officers referred to above), except any who have rejected the offer of employment of Purchaser or Manager; provided that the foregoing shall not (i) limit or restrict the ability of Sellers to terminate an employee of the Business prior to such time or (ii) create any obligation on the 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 liabilities and claims relating to any current or former employee of the Sellers or their Affiliates arising on or prior to the Merger time such Person becomes a Transferred Employee (including any liabilities arising under any Benefit Plan or other compensation program, arrangement or agreement of the Sellers). Sellers will retain liability for all Benefit Plans maintained by the Sellers or their Affiliates and no such Benefit Plans (or any liabilities thereunder) will be assumed by or transferred to the Purchaser. The Manager will provide any 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 Purchaser, 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 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 Closing Date as service with Buyer and its 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 the "ACCRUED FRINGE BENEFITS"). Sellers shall reimburse Purchaser for all cash payments 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 Accrued Fringe Benefits prior to Transferred Employees under March 31, 2006 (including any welfare regularly provided wage or salary payments made during such fringe benefit plan (as defined in Section 3(1) of ERISA) which is made available to Transferred Employees period). For this purpose, the Purchaser shall within 15 days following the Merger end of each month that ends within the period following the Closing Date by Buyer or one of its Affiliates, and (ii) provide credit to Transferred Employees for any co-payments, deductibles and out-of-pocket expenses paid by such Transferred Employees under extending through March 2006 furnish the employee benefit plans, programs and arrangements Sellers with a written summary of the Company and its Subsidiaries costs incurred by Manager during such month with respect to the portion Accrued Fringe Benefits. Sellers shall remit the amount of such costs to Purchaser within 10 days following the relevant plan year including the Merger Closing Datereceipt of each such statement.

Employment and Employee Benefits. The Merger Agreement provides that, from and after the date 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 (abut not for benefit accruals under any defined benefit pension plan) Buyer shall cause and vesting under each compensation, vacation, fringe or other welfare benefit plan, program or arrangement of Parent, Oracle, the Surviving Corporation and its Subsidiaries or any of their affiliates in which any Continuing Employee is or becomes eligible 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 Closing Date, (y) employee benefit and incentive plans, programs, contracts and arrangements that are substantially similar, in the aggregate, to the Company Benefit Plans (excluding stock-based compensation) provided by the Company and its Subsidiaries to Transferred Employees prior to the Merger Closing Date, and (z) at least the same level of severance payments and benefits as would have been provided under the Company’s severance plans or policies as in effect immediately prior to the Merger Closing Dateparticipate; 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-end audit), the same level of cash incentive bonus opportunity as in effect immediately prior to the Merger Closing Date. From and after the Merger Closing Date, Buyer or one of its Affiliates shall honor, and shall cause the Surviving Corporation and 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-based compensation) as in effect immediately prior to the Merger Closing Date each Parent Benefit Plan that are applicable to any Employees. Buyer or one of its Affiliates shall recognize the services of the Transferred Employees with the Company and its Subsidiaries prior to the Merger Closing Date as service with Buyer and its Affiliates in connection with any pension or is an “employee 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 welfare benefit plan plan” (as defined in Section 3(1) of ERISA) which is made available ), the waiver of all limitations as to Transferred pre-existing 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 following and their eligible dependents to the same extent that the foregoing would not have applied or would have been waived under the corresponding Company Employee Plan (as defined in the Merger Closing Date by Buyer 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 one of its Affiliates, and (ii) provide her eligible dependents to be receive credit to Transferred Employees for any co-paymentspayments and deductibles paid in the calendar year that, deductibles and outprior to the date that, such Continuing Employee commences participation in such employee welfare benefit plan of Parent in satisfying any applicable co-of-pocket payment or deductible requirements under such Parent Benefit Plan for the applicable calendar year, to the extent that such expenses paid by were recognized for such Transferred Employees purposes under the employee benefit planscomparable Company Employee Plan. Unless otherwise directed by Xxxxxx, programs and arrangements the Company will take all actions necessary to effect the termination of any Company sponsored 401(k) savings plan effective as of the Company and its Subsidiaries during business day immediately preceding the portion of the relevant plan year including the Merger Closing DateAcceptance Time.