Common use of Absence of Changes in Benefit Plans; ERISA Compliance Clause in Contracts

Absence of Changes in Benefit Plans; ERISA Compliance. (i) Except as disclosed in the Acquiror SEC Documents filed with the SEC prior to the date hereof or in SCHEDULE 3.2.10(I) to the Acquiror Disclosure Letter and except as permitted by Section 4.2 (for the purpose of this sentence, as if SECTION 4.2 had been in effect since December 31, 1996), since the date of the most recent audited financial statements included in the Acquiror SEC Documents filed with the SEC prior to the date hereof, there has not been any adoption or amendment by Acquiror or any Acquiror Subsidiary, or any Person affiliated with Acquiror under Section 414 (b), (c), (m) or (o) of the Code (each, an "ERISA Affiliate of the Acquiror") of any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other employee benefit plan, arrangement or understanding (whether or not legally binding or oral or in writing) providing benefits to any current or former employee, officer or director of Acquiror, any Acquiror Subsidiary, or any ERISA Affiliate of the Acquiror (collectively, "Acquiror Benefit Plans"). No Acquiror Benefit Plan is subject to Title IV of ERISA or to Section 412 of the Code or Section 302 of ERISA. True and correct copies of each of the following have been made available to the Company: (i) the most recent annual report (Form 5500), if any, relating to each Acquiror Benefit Plan filed with the IRS, (ii) each Acquiror Benefit Plan, (iii) the trust agreement, if any, relating to each Acquiror Benefit Plan, (iv) the most recent summary plan description for each Acquiror Benefit Plan for which a summary plan description is required by ERISA and (v) the most recent determination letter, if any, issued by the IRS with respect to any Acquiror Benefit Plan qualified under Section 401 of the Code. As to any Acquiror Benefit Plan intended to be qualified under Section 401 of the Code, such Acquiror Benefit Plan satisfies in form the requirements of such Section and there has been no termination or partial termination of such Acquiror Benefit Plan within the meaning of Section 411(d)(3) of the Code. As to any such terminated Acquiror Benefit Plan intended to have been qualified under Section 401 of the Code, such terminated Acquiror Benefit Plan received a favorable determination letter from the IRS with respect to its termination. There are no actions, suits or claims pending (other than routine claims for benefits) or, to the Knowledge of Acquiror, threatened against, or with respect to, any of the Acquiror Benefit Plans or their assets that could reasonably be expected to have a Material Adverse Effect. To the Knowledge of Acquiror, there is no matter pending before the IRS, the United States Department of Labor or the PBGC with respect to any of the Acquiror Benefit Plans. All contributions required to be made to such Acquiror Benefit Plans pursuant to their terms and provisions have been timely made. Except as set forth in SCHEDULE 3.2.10(I) to the Acquiror Disclosure Letter, neither Acquiror nor any Acquiror Subsidiary is a party to or is bound by any severance agreement, program or policy. True and correct copies of all employment agreements with officers of Acquiror and the Acquiror Subsidiaries, and all vacation, overtime and other compensation policies of Acquiror and the Acquiror Subsidiaries relating to their employees have been made available to the Company. (ii) Except as described in the Acquiror SEC Documents or in SCHEDULE 3.2.10(II) to the Acquiror Disclosure Letter or as would not have an Acquiror Material Adverse Effect, (A) all Acquiror Benefit Plans, including any such plan that is an "employee benefit plan" as defined in Section 3(3) of ERISA, are in compliance with all applicable requirements of law, including ERISA and the Code, and (B) other than claims for benefits in the normal course of business, 19 25 neither Acquiror, any Acquiror Subsidiary nor any ERISA Affiliate of the Acquiror has any liabilities or obligations with respect to any Acquiror Benefit Plans, whether accrued, contingent or otherwise, nor to the Knowledge of Acquiror are any such liabilities or obligations expected to be incurred. Except as set forth in SCHEDULE 3.2.10(II) to the Acquiror Disclosure Letter, the execution of, and performance of the Transactions will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Acquiror Benefit Plan, policy, arrangement or agreement or any trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee or director of Acquiror, any Acquiror Subsidiary, or any ERISA Affiliate of the Acquiror. 3.2.11

Absence of Changes in Benefit Plans; ERISA Compliance. (i) Except as disclosed in the Acquiror Company SEC Documents filed with the SEC prior to the date hereof or in SCHEDULE 3.2.10(I3.1.11(I) to the Acquiror Company Disclosure Letter and except as permitted by Section 4.2 (for the purpose of this sentence, as if SECTION 4.2 had been in effect since December 31, 1996)Letter, since the date of the most recent audited financial statements included in the Acquiror Company SEC Documents filed with the SEC prior to the date hereof, there has not been any adoption or amendment by Acquiror or the Company, any Acquiror Subsidiary, Company Subsidiary or any Person affiliated with Acquiror the Company under Section 414 (b414(b), (c), (m) or (o) of the Code (each, an "ERISA Affiliate of the AcquirorCompany") of any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization, medical or other employee benefit plan, arrangement or understanding (whether or not legally binding binding, or oral or in writing) providing benefits to any current or former employee, officer or director of Acquirorthe Company, any Acquiror Company Subsidiary, or any ERISA Affiliate of the Acquiror Company (collectively, "Acquiror Company Benefit Plans"). No Acquiror Company Benefit Plan is is, or has been subject to Title IV of ERISA or to Section 412 of the Code or Section 302 of ERISA or provides post-retirement health benefits other than the health benefits required under Section 4980B of the Code or Part 6 of Title I of ERISA. Each Company Benefit Plan is listed in SCHEDULE 3.1.11(I) to the Company Disclosure Letter, including, with respect to terminated Company Benefit Plans, the date of termination. True and correct copies of each of the following have been made available to the CompanyAcquiror: (i) the most recent annual report (Form 5500), if any, relating to each Acquiror such Company Benefit Plan filed with the IRS, (ii) each Acquiror such Company Benefit Plan, (iii) the trust agreement, if any, relating to each Acquiror such Company Benefit Plan, (iv) the most recent summary plan description for each Acquiror such Company Benefit Plan for which a summary plan description is required by ERISA ERISA, and (v) the most recent determination letter, if any, issued by the IRS with respect to any Acquiror such Company Benefit Plan qualified under Section 401 of the Code. As 10 16 Except as set forth in SCHEDULE 3.1.11(I) to the Company Disclosure Letter, as to any Acquiror such Company Benefit Plan intended to be qualified under Section 401 of the Code, such Acquiror Company Benefit Plan satisfies in form the requirements of such Section and there has been no termination or partial termination of such Acquiror Company Benefit Plan within the meaning of Section 411(d)(3) of the Code. As to any such terminated Acquiror Company Benefit Plan intended to have been qualified under Section 401 of the Code, such terminated Acquiror Company Benefit Plan received a favorable determination letter from the IRS with respect to its termination. Except as set forth in SCHEDULE 3.1.11(I) to the Company Disclosure Letter either the Company, a Company Subsidiary or an ERISA Affiliate of the Company has the right, either individually or in the aggregate, unilaterally to terminate any, and each, of the Company Benefit Plans without incurring any additional expense to fund or pay any benefits upon such termination. There are no actions, suits or claims pending (other than routine claims for benefits) or, to the Knowledge of Acquirorthe Company, threatened against, or with respect to, any of the Acquiror such Company Benefit Plans or their assets that could reasonably be expected to have a Material Adverse Effect. To the Knowledge of Acquirorthe Company, there is no matter pending before the IRS, the United States Department of Labor or the PBGC with respect to any of the Acquiror such Company Benefit Plans. All contributions required to be made to such Acquiror Company Benefit Plans pursuant to their terms and provisions have been timely made. Except as set forth in SCHEDULE 3.2.10(I3.1.11(I) to the Acquiror Company Disclosure Letter, neither Acquiror the Company nor any Acquiror Company Subsidiary is a party to or is bound by any severance agreement, program or policy. True and correct copies of all employment agreements with officers of Acquiror the Company and the Acquiror Company Subsidiaries, and all vacation, overtime and other compensation policies of Acquiror the Company and the Acquiror Company Subsidiaries relating to their employees have been made available to the CompanyAcquiror. (ii) Except as described in the Acquiror Company SEC Documents or in SCHEDULE 3.2.10(II3.1.11(II) to the Acquiror Company Disclosure Letter or as would not have an Acquiror a Material Adverse Effect, (A) all Acquiror Company Benefit Plans, including any such plan that is an "employee benefit plan" as defined in Section 3(3) of ERISA, are in compliance with all applicable requirements of law, including ERISA and the Code, and (B) other than claims for benefits and contributions in the normal course of business, 19 25 neither Acquirorthe Company, any Acquiror Company Subsidiary nor any ERISA Affiliate of the Acquiror Company has any liabilities or obligations with respect to any Acquiror such Company Benefit PlansPlan, whether accrued, contingent or otherwise, nor to the Knowledge of Acquiror the Company are any such liabilities or obligations expected to be incurred. Except as set forth in SCHEDULE 3.2.10(II3.1.11(II) to the Acquiror Company Disclosure Letter, or as permitted by SECTION 5.13.2 the execution of, and performance of the Transactions will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Acquiror Company Benefit Plan, policy, arrangement or agreement or any trust or loan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee or director of Acquirorthe Company, any Acquiror Company Subsidiary, or any ERISA Affiliate of the Company. (iii) Except as set forth in SCHEDULE 3.1.11(III) to the Company Disclosure Letter, neither the Company nor any Company Subsidiary has any plans, programs or agreements to which they are parties, or to which they are subject, pursuant to which payments (or acceleration of benefits) may be required upon, or may become payable directly or indirectly as a result of, a change of control of the Company. (iv) No agreements have been made with any Person by, or on behalf of, the Company or any Company Subsidiary with respect to any interpretation of, or the amount or calculation of any benefits payable under, any plans, programs or agreements described in SECTION 3.1.11(III) or in 11 17 SCHEDULE 3.1.11(III) to the Company Disclosure Letter, which agreement is binding on the Company or any Company Subsidiary or would be binding on Acquiror. 3.2.113.1.12