Common use of Benefit Plans; Employees and Employment Practices Clause in Contracts

Benefit Plans; Employees and Employment Practices. (a) Except as disclosed in the Powertel Filed SEC Documents or Item 2.12(a) of the Powertel Letter, or to the extent required by law or required to maintain compliance with provisions of the Code, neither Powertel nor any of the Powertel Subsidiaries has adopted or amended in any material respect any ERISA Benefit Plan of Powertel since the date of the most recent audited financial statements included in the Powertel Filed SEC Documents. Except as set forth in Item 2.12(a) of the Powertel Letter, Powertel does not have any commitment to create, adopt or contribute to any Powertel Benefit Plan. Except as disclosed in Item 2.12(a) of the Powertel Letter or in the Powertel Filed SEC Documents, as of the date of this Agreement, there exist no material employment, consulting, severance, bonus, incentive or termination agreements between Powertel or any of the Powertel Subsidiaries and any current or former employee, officer or director of Powertel or any of the Powertel Subsidiaries. (b) Item 2.12(b) of the Powertel Letter contains a list of all the Powertel Benefit Plans. None of Powertel, any of the Powertel Subsidiaries, any officer of Powertel or any of the Powertel Subsidiaries or any of the ERISA Benefit Plans has on or before the date of this Agreement engaged in a "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any ERISA Benefit Plan that could reasonably be expected to subject Powertel, any of the Powertel Subsidiaries or any officer of Powertel or any of the Powertel Subsidiaries to any Tax on prohibited transactions imposed by Section 4975 of the Code or to any liability under Section 502(i) or (l) of ERISA where such Tax or liability has or would be reasonably expected to have a Material Adverse Effect on Powertel. No ERISA Benefit Plan has incurred any "accumulated funding deficiency" (as defined in Section 412 of the Code or Part 3 of Title I of ERISA), whether or not waived. Neither Powertel nor any of the Powertel Subsidiaries has incurred and none of such entities reasonably expects to incur, any material liability to the PBGC with respect to any ERISA Benefit Plan. No assets of Powertel or any of the Powertel Subsidiaries are subject to Liens arising under ERISA or the Code on account of any ERISA Benefit Plan, neither Powertel nor any of the Powertel Subsidiaries has been required to provide any security under Sections 401(a)(29) or 412(f) of the Code, or under Section 307 of ERISA, and, to Powertel's knowledge, no event has occurred that could give rise to any such Lien or a requirement to provide any such security. Except as disclosed in Item 2.12(b) of the Powertel Letter, none of Powertel, the Powertel Subsidiaries or any ERISA Affiliate has at any time during the five-year period preceding the date hereof contributed to any "multiemployer plan" (as defined in Section 3(37) of ERISA). (c) Except as disclosed in Item 2.12(c) of the Powertel Letter, and except for such matters as could not be reasonably expected to have a Material Adverse Effect on Powertel, to the extent applicable, (i) each ERISA Benefit Plan complies with the requirements of ERISA and the Code, (ii) each ERISA Benefit Plan intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified and nothing has occurred since the date of that determination that could reasonably be expected to adversely affect the qualified status of such plan and its related trust is tax-exempt and has been so since its creation, and (iii) each Powertel Benefit Plan has been maintained, administered and operated in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code, which are applicable to such Powertel Benefit Plans. (d) Except as disclosed in Item 2.12(d) of the Powertel Letter, all material contributions, reserves or premium payments under or to the Powertel Benefit Plans, accrued to the date hereof have been made or provided for. (e) Except as disclosed in Item 2.12(e) of the Powertel Letter, and except for any liability as could not be reasonably expected to have a Material Adverse Effect on Powertel, Powertel has not incurred any liability under Subtitle C or D of Title IV of ERISA with respect to any "single-employer plan" within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by Powertel, or any entity which is considered one employer with Powertel under Section 4001 of ERISA. (f) Except as disclosed in Item 2.12(f) of the Powertel Letter, neither Powertel nor any of the Powertel Subsidiaries has any obligation to provide retiree health or welfare benefits for any current or former employee under any Powertel Benefit Plan, except as required by Part 6 of Title I of ERISA or to avoid excise taxes under Section 4980B of the Code, and the terms of the Powertel Benefit Plans permit Powertel to amend or terminate such Powertel Benefit Plans at any time without incurring liability thereunder. (g) Except as disclosed in Item 2.12(g) of the Powertel Letter, Powertel has not engaged in, nor is it a successor or parent corporation to an entity that has engaged in a transaction described in Section 4069 of ERISA. (h) Except as disclosed in Item 2.12(h) of the Powertel Letter, the consummation or announcement of any transaction contemplated by this Agreement will not (either alone or upon the occurrence of any additional or further acts or events) result in any (i) payment (whether of severance pay or otherwise) becoming due from Powertel or any of the Powertel Subsidiaries to any officer, employee, former employee or director thereof or to the trustee under any "rabbi trust" or similar arrangement; (ii) benefit under any Powertel Benefit Plan being established or becoming accelerated, vested or payable; or (iii) "reportable event" (as defined in Section 4043 of ERISA) with respect to any ERISA Benefit Plan subject to Title IV of ERISA. (i) Except as disclosed in Item 2.12(i) of the Powertel Letter, as of the date of this Agreement there are no pending disputes, arbitrations, claims, suits, grievances or, to the knowledge of Powertel, governmental audits involving a Powertel Benefit Plan (other than routine claims for benefits payable under any such Powertel Benefit Plan or routine audits) that would reasonably be expected either individually or in the aggregate, to have a Material Adverse Effect on Powertel. (j) Item 2.12(j) of the Powertel Letter contains a list setting forth the name and current annual salary and other material compensation payable to each Significant Employee, and the profit sharing, bonus or other form of additional cash compensation paid or payable by Powertel or the Powertel Subsidiaries to or for the benefit of each such person for the current fiscal year. Except as set forth in Item 2.12(j) of the Powertel Letter, there are no oral or written contracts, agreements or arrangements obligating Powertel or any of the

Benefit Plans; Employees and Employment Practices. (a) Except as disclosed in the Powertel Filed SEC Documents or Item 2.12(aSCHEDULE 2.12(A) of the Powertel Letter, or to the extent required by law or required to maintain in compliance with provisions of the Code, neither Powertel nor any of the Powertel Subsidiaries has adopted or amended in any material respect any ERISA Benefit Plan of Powertel since the date of the most recent audited financial statements included in the Powertel Filed SEC Documents. Except as set forth in Item 2.12(a) of the Powertel LetterSCHEDULE 2.12(A), Powertel does not have any commitment to create, adopt or contribute to any Powertel Benefit Plan. Except as disclosed in Item 2.12(aSCHEDULE 2.12(A) of the Powertel Letter or in the Powertel Filed SEC Documents, as of the date of this Agreement, there exist no material employment, consulting, severance, bonus, incentive or termination agreements between Powertel or any of the Powertel Subsidiaries and any current or former employee, officer or director of Powertel or any of the Powertel Subsidiaries. (b) Item 2.12(bSCHEDULE 2.12(B) of the Powertel Letter contains a list of all the material Powertel Benefit Plans. None of Powertel, any of the Powertel Subsidiaries, any officer of Powertel or any of the Powertel Subsidiaries or any of the ERISA Benefit Plans has on or before the date of this Agreement engaged in a "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any ERISA Benefit Plan that could reasonably be expected to subject Powertel, any of the Powertel Subsidiaries or any officer of Powertel or any of the Powertel Subsidiaries to any Tax on prohibited transactions imposed by Section 4975 of the Code or to any liability under Section 502(i) or (l) of ERISA where such Tax or liability has or would be reasonably expected to have a Material Adverse Effect on Powertel. No ERISA Benefit Plan has incurred any "accumulated funding deficiency" (as defined in Section 412 of the Code or Part 3 of Title I of or ERISA), whether or not waived. Neither Powertel nor any of the Powertel Subsidiaries has incurred and none of such entities reasonably expects to incur, any material liability to the PBGC with respect to any ERISA Benefit Plan. No assets of Powertel or any of the Powertel Subsidiaries are subject to Liens liens arising under ERISA or the Code on account of any ERISA Benefit Plan, neither Powertel nor any of the Powertel Subsidiaries has been required to provide any security under Sections 401(a)(29) or 412(f) of the Code, or under Section 307 of ERISA, and, to Powertel's knowledgeKnowledge, no event has occurred that could give rise to any such Lien lien or a requirement to provide any such security. Except as disclosed in Item 2.12(b) of the Powertel LetterSCHEDULE 2.12(B), none of Powertel, the Powertel Subsidiaries or any ERISA Affiliate has at any time during the five-year period preceding the date hereof contributed to any "multiemployer plan" (as defined in Section 3(37) of ERISA). (c) Except as disclosed in Item 2.12(c) of the Powertel LetterSCHEDULE 2.12(C), and except for such matters as could not be reasonably expected to have a Material Adverse Effect on Powertel, to the extent applicable, (i) each ERISA Benefit Plan complies with the requirements of ERISA and the Code, (ii) each ERISA Benefit Plan intended to be qualified under Section 401(a) of the Code has been determined by the Internal Revenue Service to be so qualified and nothing has occurred since the date of that determination that could reasonably be expected to adversely affect the qualified status of such plan and its related trust is tax-exempt and has been so since its creation, and (iii) each Powertel Benefit Plan has been maintained, administered and operated in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code, which are applicable to such Powertel Benefit Plans. (d) Except as disclosed in Item 2.12(d) of the Powertel Letter, all material contributions, reserves or premium payments under or to the Powertel Benefit Plans, accrued to the date hereof have been made or provided for. (e) Except as disclosed in Item 2.12(e) of the Powertel Letter, and except for any liability as could not be reasonably expected to have a Material Adverse Effect on Powertel, Powertel has not incurred any liability under Subtitle C or D of Title IV of ERISA with respect to any "single-employer plan" within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by Powertel, or any entity which is considered one employer with Powertel under Section 4001 of ERISA. (f) Except as disclosed in Item 2.12(f) of the Powertel Letter, neither Powertel nor any of the Powertel Subsidiaries has any obligation to provide retiree health or welfare benefits for any current or former employee under any Powertel Benefit Plan, except as required by Part 6 of Title I of ERISA or to avoid excise taxes under Section 4980B of the Code, and the terms of the Powertel Benefit Plans permit Powertel to amend or terminate such Powertel Benefit Plans at any time without incurring liability thereunder. (g) Except as disclosed in Item 2.12(g) of the Powertel Letter, Powertel has not engaged in, nor is it a successor or parent corporation to an entity that has engaged in a transaction described in Section 4069 of ERISA. (h) Except as disclosed in Item 2.12(h) of the Powertel Letter, the consummation or announcement of any transaction contemplated by this Agreement will not (either alone or upon the occurrence of any additional or further acts or events) result in any (i) payment (whether of severance pay or otherwise) becoming due from Powertel or any of the Powertel Subsidiaries to any officer, employee, former employee or director thereof or to the trustee under any "rabbi trust" or similar arrangement; (ii) benefit under any Powertel Benefit Plan being established or becoming accelerated, vested or payable; or (iii) "reportable event" (as defined in Section 4043 of ERISA) with respect to any ERISA Benefit Plan subject to Title IV of ERISA. (i) Except as disclosed in Item 2.12(i) of the Powertel Letter, as of the date of this Agreement there are no pending disputes, arbitrations, claims, suits, grievances or, to the knowledge of Powertel, governmental audits involving a Powertel Benefit Plan (other than routine claims for benefits payable under any such Powertel Benefit Plan or routine audits) that would reasonably be expected either individually or in the aggregate, to have a Material Adverse Effect on Powertel. (j) Item 2.12(j) of the Powertel Letter contains a list setting forth the name and current annual salary and other material compensation payable to each Significant Employee, and the profit sharing, bonus or other form of additional cash compensation paid or payable by Powertel or the Powertel Subsidiaries to or for the benefit of each such person for the current fiscal year. Except as set forth in Item 2.12(j) of the Powertel Letter, there are no oral or written contracts, agreements or arrangements obligating Powertel or any of theand

Benefit Plans; Employees and Employment Practices. (a) Except as disclosed in the Powertel Company Filed SEC Documents or Item 2.12(a3.12 (a) of the Powertel Company Letter, or to neither the extent required by law or required to maintain compliance with provisions of the Code, neither Powertel Company nor any of the Powertel its Subsidiaries has adopted or amended in any material respect any Company ERISA Benefit Plan of Powertel since the date of the most recent audited financial statements included in the Powertel Company Filed SEC Documents. Except as set forth in Item 2.12(a3.12(a) of the Powertel Company Letter, Powertel the Company does not have any commitment to create, adopt or contribute to any Powertel Benefit Planadditional plan covering any active, former or retired employees of the Company. Except as disclosed in Item 2.12(a3.12(a) of the Powertel Company Letter or in the Powertel Company Filed SEC Documents, as of the date of this Agreement, there exist no material employment, consulting, severance, bonus, incentive or termination agreements between Powertel the Company or any of the Powertel its Subsidiaries and any current or former employee, officer or director of Powertel the Company or any of the Powertel its Subsidiaries. (b) Item 2.12(b3.12(b) of the Powertel Company Letter contains a list of all ERISA Benefit Plans sponsored by the Powertel Benefit PlansCompany or its ERISA Affiliates. None of Powertelthe Company, any of the Powertel its Subsidiaries, any officer of Powertel the Company or any of the Powertel its Subsidiaries or any of the ERISA Benefit Plans has on or before the date of this Agreement engaged in a "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any ERISA Benefit Plan that could reasonably be expected to subject Powertelthe Company, any of the Powertel its Subsidiaries or any officer of Powertel the Company or any of the Powertel its Subsidiaries to any material Tax on prohibited transactions imposed by Section 4975 of the Code or to any material liability under Section 502(i) or (l) of ERISA where such the Tax or liability has or that would be reasonably expected to occur would have a Material Adverse Effect on Powertel. No ERISA Benefit Plan has incurred any "accumulated funding deficiency" (as defined in Section 412 of the Code or Part 3 of Title I of ERISA), whether or not waived. Neither Powertel nor any of the Powertel Subsidiaries has incurred and none of such entities reasonably expects to incur, any material liability to the PBGC with respect to any ERISA Benefit Plan. No assets of Powertel or any of the Powertel Subsidiaries are subject to Liens arising under ERISA or the Code on account of any ERISA Benefit Plan, neither Powertel nor any of the Powertel Subsidiaries has been required to provide any security under Sections 401(a)(29) or 412(f) of the Code, or under Section 307 of ERISA, and, to Powertel's knowledge, no event has occurred that could give rise to any such Lien or a requirement to provide any such securityCompany. Except as disclosed in Item 2.12(b3.12(b) of the Powertel Company Letter, none of Powertelthe Company, the Powertel its Subsidiaries or any ERISA Affiliate has at any time during the five-year period preceding the date hereof contributed to any "multiemployer plan" (as defined in Section 3(37) of ERISA). (c) Except as disclosed in Item 2.12(c3.12(c) of the Powertel Company Letter, and except for such matters as could not be reasonably expected to have a Material Adverse Effect on Powertelthe Company, to the extent applicable, (i) each Company ERISA Benefit Plan complies with the requirements of ERISA and the Code, (ii) each Company ERISA Benefit Plan intended to be qualified under Section 401(a401 (a) of the Code has been determined by the Internal Revenue Service to be so qualified and nothing has occurred since the date of that determination that could reasonably be expected to adversely affect the qualified status of such plan and its related trust is tax-exempt and has been so since its creation, and (iii) each Powertel Company ERISA Benefit Plan has been maintained, maintained and administered and operated in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code, which are applicable to such Powertel Company ERISA Benefit Plans. (d) Except as disclosed in Item 2.12(d3.12(d) of the Powertel Company Letter, all material contributions, reserves or premium payments under or to the Powertel Company ERISA Benefit PlansPlan, accrued to the date hereof have been made or provided for. (e) Except as disclosed in Item 2.12(e3.12(e) of the Powertel Company Letter, and except for any liability as could not be reasonably expected to have a Material Adverse Effect on Powertelthe Company, Powertel the Company has not incurred any liability under Subtitle C or D of Title IV of ERISA with respect to any "single-single- employer plan" within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by PowertelCompany, or any entity which is considered one employer with Powertel Company under Section 4001 of ERISA. (f) Except as disclosed in Item 2.12(f3.12(f) of the Powertel Company Letter, neither Powertel nor any of the Powertel Subsidiaries Company has any no obligation to provide for retiree health or welfare and life benefits for any current or former employee under any Powertel Company ERISA Benefit Plan, except as required by Part 6 of Title I of ERISA or to avoid excise taxes under Section 4980B 4980(B) of the Code, Code and the terms of the Powertel Company ERISA Benefit Plans permit Powertel the Company to amend or terminate such Powertel Company ERISA Benefit Plans at any time without incurring liability thereunder. (g) Except as disclosed in Item 2.12(g3.12 (g) of the Powertel Company Letter, Powertel the Company has not engaged in, nor is it a successor or parent corporation to an entity that has engaged in a transaction described in Section 4069 of ERISA. (h) Except as disclosed in Item 2.12(h3.12(h) of the Powertel LetterCompany Letter or the Company Filed SEC Documents, neither the consummation or announcement of any transaction contemplated by this Agreement will not (either alone or upon the occurrence of any additional or further acts or events) result in any (i) payment (whether of severance pay or otherwise) becoming due from Powertel or Company nor any of its ERISA Affiliates has any current or projected liability in respect of post employment or post retirement welfare benefits for retired or former employees of the Powertel Subsidiaries to any officer, employee, former employee or director thereof or to the trustee under any "rabbi trust" or similar arrangement; (ii) benefit under any Powertel Benefit Plan being established or becoming accelerated, vested or payable; or (iii) "reportable event" (as defined in Section 4043 of ERISA) with respect to any ERISA Benefit Plan subject to Title IV of ERISACompany. (i) Except as disclosed in Item 2.12(i3.12(i) of the Powertel Company Letter, no tax under Section 4980B of the Code has been incurred in respect of any Company ERISA Benefit Plan that is a group health plan, as defined in Section 5000(b)(1) of the Code. (j) Except as disclosed in Item 3.12(j) of the Company Letter, as of the date of this Agreement there are is no pending disputesdispute, arbitrationsarbitration, claimsclaim, suits, grievances or, to the knowledge of Powertel, governmental audits suit or grievance involving a Powertel Company Benefit Plan (other than routine claims for benefits payable under any such Powertel Company Benefit Plan or routine auditsPlan) that would reasonably be expected either individually or in the aggregate, to have a Material Adverse Effect on Powertelthe Company. (jk) Item 2.12(j3.12(k) of the Powertel Company Letter contains a list setting forth the name and current annual salary and other material compensation payable to each Significant Employee, and the profit sharing, bonus or other form of additional cash compensation paid or payable by Powertel the Company or the Powertel its Subsidiaries to or for the benefit of each such person for the current fiscal year. Except as set forth in Item 2.12(j3.12(k) of the Powertel Company Letter, there are no oral or written contracts, agreements or arrangements obligating Powertel the Company or any of theits Subsidiaries to increase the compensation or benefits presently being paid or hereafter payable to any Significant Employees or any oral employment or consulting or similar arrangements regarding any Significant Employee which are not terminable without liability on thirty days' or less prior notice and lists all written employment and consulting agreements with respect to any Significant Employee. The Company has provided true and correct copies of all employment agreements listed on Item 3.12(k). Except for severance obligations to Significant Employees set forth in Item 3.12(k) of the Company Letter, there is not due or owing and there will not be due and owing at the Effective Time to any Significant Employees, any sick pay, severance pay (whether arising out of the termination of a Significant Employee prior to, on, or subsequent to the Effective Time), compensable time or pay, including salary, commission and bonuses, personal time or pay or vacation time or vacation pay attributable to service rendered on or prior to the Effective Time. Except as disclosed in Item 3.12(k) of the Company Letter and other than claims made in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $500,000 neither the Company nor any of its Subsidiaries have any liability arising out of claims made or suits brought (including workers' compensation claims and claims or suits for contribution to, or indemnification of, third parties, occupational health and safety, environmental, consumer protection or equal employment matters) for injury, sickness, disease, discrimination, death or termination of employment of any Significant Employee, or other employment matter to the extent attributable to an event occurring or a state of facts existing on or prior to the Effective Time. (l) The Company and each of its Subsidiaries (i) is in compliance with all applicable Federal and state laws, rules and regulations respecting employment, employment practices, terms and conditions of employment and wages and hours, in each case, with respect to Company Employees, except where the failure to be in compliance would not, singly or in the aggregate, have a Material Adverse Effect on the Company or any of its Subsidiaries or their financial condition or business; (ii) has withheld all amounts required by law or by agreement to be withheld from the wages, salaries and other payments to Company Employees; (iii) is not liable for any arrears of wages or any taxes or any penalty for failure to comply with any of the foregoing, except as would reasonably be expected to not have a Material Adverse Effect on the Company; and (iv) (other than routine payments to be made in the normal course of business and consistent with past practice) is not liable for any payment to any trust or other fund or to any governmental or administrative authority, with respect to unemployment compensation benefits, Social Security or other benefits for Company Employees. (m) Except as disclosed in Item 3.12(m) of the Company Letter, as of the date of this Agreement there are no material controversies, strikes, work stoppages or disputes pending between the Company or any of its Subsidiaries and any current or former employees, and no organizational effort by any labor union or other collective bargaining unit currently is under way with respect to any employee, which in any such case would reasonably be expected to have a Material Adverse Effect on the Company. None of the Company or any of its Subsidiaries is a party to a collective bargaining agreement. Except as set forth in Item 3.12(m) of the Company Letter, there is no, and there is not threatened, any labor dispute, grievance or litigation relating to labor, safety or discrimination matters involving any Company Employee including charges of unfair labor practices or discrimination complaints, which, if adversely determined, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. There has been no engagement in any unfair labor practices by the Company or its Subsidiaries within the meaning of the National Labor Relations Act which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.