Common use of Business Employees Clause in Contracts

Business Employees. (a) Schedule 3.10(a)(i) contains a complete and accurate list of all the Engenio Business Employees as of March 2, 2011, showing for each Business Employee, the name, title, location, service date, leave status (active or inactive), annual base salary or wages, annual incentive/bonus or commission opportunity and 2011 salary increase. Except as set forth on Schedule 3.10(a)(ii), (i) no Business Employee is covered by any union, collective bargaining agreement or other similar labor agreement; (ii) to Seller’s knowledge, are there no pending union, works council or similar labor organizing activities or arrangements; and (iii) in the three years prior to the date hereof, there has been no labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize the Business Employees, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to Business Employees. No unfair labor practice, labor dispute or labor charge or complaint is pending or, to the knowledge of Seller, threatened with respect to any Business Employee. (b) Except as set forth in Schedule 3.10(b), neither Seller nor any Subsidiary currently maintains, contributes to or has any liability under any Benefit Plan. With respect to each of the Benefit Plans identified on Schedule 3.10(b), Seller has made available to Buyer true and complete copies of the most recent plan or summary or other written description describing all material terms thereof. (c) Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or has pending or has time remaining in which to file an application for such determination, from the IRS, and to the knowledge of Seller, no fact exists indicating that any such determination letter should be revoked or not issued or reissued. (d) Other than as set forth in Schedule 3.10(b), no Benefit Plan is, and Seller, any Subsidiary or any ERISA Affiliate does not sponsor or maintain or has previously sponsored, maintained, contributed to, incurred an obligation to contribute to, or is or was required to contribute to: (i) any “multiemployer plan” as defined in Section 3(37) or 4011(a)(3) of ERISA, or (ii) any pension plan subject to Title IV of ERISA, Part 3 of Title I of ERISA or Section 412 of the Code. (e) No Benefit Plan provides for retiree or post-employment health, disability or life benefits to any Business Employee, and Seller, any Subsidiary or any ERISA Affiliate has not promised to or contracted with any Business Employee (either individually or to Business Employees as a group) with retiree health or other retiree employee welfare benefits. (f) Neither the execution nor the delivery of this Agreement or the Collateral Agreements or the consummation of the transactions contemplated hereby, either alone or in combination with another event, will (i) entitle any Business Employee to any payment from Seller or any Subsidiary; (ii) increase the amount of compensation or benefits due from Seller or any Subsidiary to any such employee; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefits from Seller or any Subsidiary; or (iv) result in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code or any similar provisions of foreign, state or local Law. (g) Neither Seller nor any Subsidiary maintains or sponsors any “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code in which a Business Employee participates and may incur an additional tax under Section 409A of the Code. (h) Each Benefit Plan that covers any Business Employee outside of the United States or is otherwise not subject to ERISA or the Code has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable Laws (including without limitation any special provisions relating to the tax status of contributions to, earnings of or distributions from such Benefit Plans where each such Benefit Plan was intended to have such tax status). (i) With respect to the Engenio Business, there is not presently pending or existing, and to Seller’s knowledge there is not threatened, (i) any strike, slowdown, picketing, or work stoppage, (ii) any application for certification of a collective bargaining agent, (iii) any controversies or disputes pending, or to Seller’s knowledge, threatened between Seller or any Subsidiary and any of its employees, or (iv) any claims, litigation or disputes by a works council or other applicable Government Body, which controversies, claims, litigation or disputes, individually or in the aggregate, are or could reasonably be expected to be material to the Engenio Business, taken as a whole. (j) Except for the defined benefit plan set forth on Schedule 3.10(b) with respect to Business Employees located in Germany, no Business Employee has a contractual right to any defined benefit pension or rights under an occupational pension plan. (k) In the twelve (12) months prior to the date hereof, no Business Employee located in the European Union has transferred to the Engenio Business from another business unit of Seller or any of its Subsidiaries or pursuant to the ARD Regulations.

Business Employees. (a) Schedule 3.10(a)(i1.1(a) contains a complete and accurate list of all the Engenio Business Employees as of March 2, 2011the date specified in such list (which in any event shall be no more than ten (10) business days prior to the date hereof), showing for each Business Employee, the name, title, location, service date, leave status (active or inactive), annual base salary or wages, wages as of such date and aggregate annual incentive/bonus or commission opportunity and 2011 salary increasecompensation for Seller's 2002 fiscal year. Except as set forth on Schedule 3.10(a)(ii), (i) no None of the Business Employee Employees is covered by any union, collective bargaining agreement or other similar labor agreement; (ii) , formal or informal, nor, to Seller’s 's knowledge, are has there no pending union, works council or similar been any labor union organizing activities or arrangements; and (iii) in the three years prior relating to the date hereof, there has been no labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize Business Employees within the Business Employees, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to Business Employees. No unfair labor practice, labor dispute or labor charge or complaint is pending or, to the knowledge of Seller, threatened with respect to any Business Employeepast five years. (b) Except as set forth in Schedule 3.10(b), neither with respect to the Business Employees, Seller nor any Subsidiary does not currently maintainsmaintain, contributes contribute to or has have any liability under any Benefit Plan. With respect to each of the Benefit Plans Plan identified on Schedule 3.10(b), Seller has made available to Buyer true and complete copies of the most recent summary plan or summary or other written description describing thereof. Each Benefit Plan listed on Schedule 3.10(b) has been operated in material compliance with all material terms thereof. (c) applicable Laws, including ERISA. Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or has pending or has time remaining in which to file an application for such determination, from the IRS, and to the knowledge Seller is not aware of Seller, no fact exists indicating that reason why any such determination letter should be revoked or not issued or reissued. . Any amount that could be received (dwhether in cash, property, or vesting of property) Other than as set forth in Schedule 3.10(b)a result of the transaction contemplated by this Agreement by any officer, no Benefit Plan isdirector, and employee or independent contractor of Seller, any Subsidiary or any ERISA Affiliate does not sponsor or maintain or has previously sponsored, maintained, contributed to, incurred an obligation to contribute to, or who is or was required to contribute to: a "disqualified individual" (i) any “multiemployer plan” as defined in proposed Treasury Regulation Section 3(37) or 4011(a)(3) of ERISA1.280G-1), or (ii) under any pension plan subject to Title IV of ERISAContract that will be assumed by the Buyer, Part 3 of Title I of ERISA or Section 412 of the Code. (e) No Benefit Plan provides for retiree or post-employment health, disability or life benefits to any Business Employee, and Seller, any Subsidiary or any ERISA Affiliate has would not promised to or contracted with any Business Employee (either individually or to Business Employees be characterized as a group) with retiree health or other retiree employee welfare benefits. (f) Neither the execution nor the delivery of this Agreement or the Collateral Agreements or the consummation of the transactions contemplated hereby, either alone or in combination with another event, will (i) entitle any Business Employee to any payment from Seller or any Subsidiary; (ii) increase the amount of compensation or benefits due from Seller or any Subsidiary to any such employee; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefits from Seller or any Subsidiary; or (iv) result in the payment of any “an "excess parachute payment” within the meaning of " (as defined in Section 280G of the Code or any similar provisions of foreign, state or local Law. (g) Neither Seller nor any Subsidiary maintains or sponsors any “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code in which a Business Employee participates and may incur an additional tax under Section 409A of the Code. (h) Each Benefit Plan that covers any Business Employee outside of the United States or is otherwise not subject to ERISA or the Code has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable Laws (including without limitation any special provisions relating to the tax status of contributions to, earnings of or distributions from such Benefit Plans where each such Benefit Plan was intended to have such tax status). (ic) With respect to the Engenio CATV Business, there is not presently pending or existing, and and, to Seller’s knowledge 's knowledge, there is not threatened, (i) any strike, slowdown, picketing, or work stoppage, (ii) any application for certification of a collective bargaining agent, or (iii) any controversies or disputes pending, or to Seller’s 's knowledge, threatened between Seller or any Subsidiary and any of its employees, or (iv) any claims, litigation or disputes by a works council or other applicable Government Body, which controversies, claims, litigation or disputesemployees that, individually or in the aggregate, are have had or could reasonably be expected to be material to the Engenio Business, taken as have a wholeSeller Material Adverse Effect. (j) Except for the defined benefit plan set forth on Schedule 3.10(b) with respect to Business Employees located in Germany, no Business Employee has a contractual right to any defined benefit pension or rights under an occupational pension plan. (k) In the twelve (12) months prior to the date hereof, no Business Employee located in the European Union has transferred to the Engenio Business from another business unit of Seller or any of its Subsidiaries or pursuant to the ARD Regulations.

Business Employees. (a) Schedule 3.10(a)(i) contains a complete None of Seller nor the Company has, and accurate list of all neither Seller nor the Engenio Company has ever had, any employees or independent contractors and has no Liabilities, direct or indirect, with respect thereto, including, without limitation, with respect to any Business Employee. All Business Employees as are employees of March 2EPCO, 2011and the aggregate base compensation paid to such Business Employees in 2017 did not exceed $16,500,000. (b) Neither the Company nor Seller (i) sponsors or maintains or has an obligation to contribute to, showing for each Business Employeeand has never sponsored or maintained or had an obligation to contribute to, any Benefit Plan and (ii) has any Liabilities under any Benefit Plan. (c) There does not now exist, nor do any circumstances exist that could reasonably be expected to result in, any lien or Liability under Title IV of ERISA or Section 430(k) of the Code on any asset of the Company or any lien or Liability under Section 412 or 4980B of the Code that could reasonably be expected to result in a Liability of the Company. (d) Neither Seller, the nameCompany nor any Affiliate of Seller is subject to any collective bargaining agreements, titleworks council agreements, locationlabor union contracts, service datetrade union agreements, leave status or other similar agreements with any union, works council, or labor organization that cover any Business Employees and to Knowledge of Seller, in the prior three years, (active i) no union, labor organization, or inactive)group of employees has sought to organize any Business Employees for purposes of collective bargaining, annual base salary (ii) no Business Employees have made a demand for recognition or wagescertification, annual incentive/bonus sought to bargain collectively with Seller, EPCO or commission opportunity Enterprise, or filed a petition for recognition with any Governmental Authority, and 2011 salary increase. (iii) there have been no actual or threatened strikes, lockouts, slowdowns, work stoppages, boycotts, hand billing, picketing, walkouts, demonstrations, sit-ins, sick-outs or other forms of organized labor disruption with respect to the Company or the Business. (e) Except as set forth on Schedule 3.10(a)(ii)4.18, during the three years immediately prior to the Execution Date: (i) no Business Employee Enterprise, EPCO, the Company, Seller and each Affiliate of Seller is covered by any union, collective bargaining agreement or other similar labor agreement; (ii) to Seller’s knowledge, are there no pending union, works council or similar labor organizing activities or arrangements; and (iii) has been in the three years prior compliance in all material respects with all applicable Laws relating to the date hereof, there has been no labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize employment of the Business Employees, or any lockoutsincluding Laws relating to wages and, strikeshours, slowdownsincluding the Fair Labor Standards Act, work stoppages or threats thereof by or with respect to Business Employees. No unfair labor practicecollective bargaining, labor dispute or labor charge or complaint is pending orunemployment insurance, to the knowledge workers’ compensation, equal employment opportunity, discrimination, immigration control, employee classifications, misclassification of Selleremployees as independent contractors, threatened with respect to any Business Employee. (b) Except as set forth in Schedule 3.10(b), neither Seller nor any Subsidiary currently maintains, contributes to or has any liability under any Benefit Plan. With respect to each of the Benefit Plans identified on Schedule 3.10(b), Seller has made available to Buyer true safety and complete copies of the most recent plan or summary or other written description describing all material terms thereof. (c) Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or has pending or has time remaining in which to file an application for such determination, from the IRS, and to the knowledge of Seller, no fact exists indicating that any such determination letter should be revoked or not issued or reissued. (d) Other than as set forth in Schedule 3.10(b), no Benefit Plan is, and Seller, any Subsidiary or any ERISA Affiliate does not sponsor or maintain or has previously sponsored, maintained, contributed to, incurred an obligation to contribute to, or is or was required to contribute to: (i) any “multiemployer plan” as defined in Section 3(37) or 4011(a)(3) of ERISA, or (ii) any pension plan subject to Title IV of ERISA, Part 3 of Title I of ERISA or Section 412 of the Code. (e) No Benefit Plan provides for retiree or post-employment health, disability or life benefits to any Business Employee, reductions in force and Seller, any Subsidiary or any ERISA Affiliate has not promised to or contracted with any Business Employee (either individually or to Business Employees as a group) with retiree health or other retiree employee welfare benefits. (f) Neither the execution nor the delivery of this Agreement or the Collateral Agreements or the consummation of the transactions contemplated hereby, either alone or in combination with another event, will (i) entitle any Business Employee to any payment from Seller or any Subsidiary; (ii) increase the amount of compensation or benefits due from Seller or any Subsidiary to any such employee; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefits from Seller or any Subsidiary; or (iv) result in the payment and withholding of any “excess parachute payment” within the meaning of Section 280G of the Code or any similar provisions of foreignTaxes, state or local Law. (g) Neither Seller nor any Subsidiary maintains or sponsors any “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code in which a Business Employee participates and may incur an additional tax under Section 409A of the Code. (h) Each Benefit Plan but excluding all compliance failures that covers any Business Employee outside of the United States or is otherwise not subject to ERISA or the Code has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable Laws (including without limitation any special provisions relating to the tax status of contributions to, earnings of or distributions from such Benefit Plans where each such Benefit Plan was intended to have such tax status). (i) With respect to the Engenio Business, there is not presently pending or existing, and to Seller’s knowledge there is not threatened, (i) any strike, slowdown, picketing, or work stoppage, (ii) any application for certification of a collective bargaining agent, (iii) any controversies or disputes pending, or to Seller’s knowledge, threatened between Seller or any Subsidiary and any of its employees, or (iv) any claims, litigation or disputes by a works council or other applicable Government Body, which controversies, claims, litigation or disputes, individually or in the aggregate, are or could aggregate would not reasonably be expected to be material to result in a Material Adverse Effect; and (i) neither Seller, the Engenio BusinessCompany, taken as a whole. (j) Except Enterprise, EPCO nor any Affiliate of Seller has received any written notice of the intent of the Equal Employment Opportunity Commission, the National Labor Relations Board, the Department of Labor or any other Governmental Entity responsible for the defined benefit plan set forth on Schedule 3.10(b) enforcement of labor or employment Laws to conduct an investigation with respect to the Business Employees located Employees. Notwithstanding any other provisions in Germanythis Agreement, no Business Employee has a contractual right the representations and warranties in this Section 4.18 are the only representations and warranties in this Agreement with respect to any defined benefit pension or rights under an occupational pension plan. (k) In the twelve (12) months prior employment matters related to the date hereof, no Business Employee located in the European Union has transferred to the Engenio Business from another business unit of Seller or any of its Subsidiaries or pursuant to the ARD RegulationsEmployees.

Business Employees. (a) Schedule 3.10(a)(iSCHEDULE 3.8(a) contains a complete and accurate list of all the Engenio Business Employees as of March 2, 2011the date specified on such list, showing for each Business Employee, Employee the name, title, location, service date, leave status position held and aggregate annual compensation (active or inactive), annual base salary or wages, annual incentive/bonus or commission opportunity including bonuses and 2011 salary increasecommissions) for Seller's last fiscal year. Except as set forth on Schedule 3.10(a)(iiSCHEDULE 3.8(a), (i) no none of the Business Employee Employees is covered by any union, collective bargaining agreement or other similar labor agreement; agreements. On or before the Transfer Date for each Subsequently Transferred Employee Seller shall LUCENT TECHNOLOGIES/CELESTICA provide Buyer with such Subsequently Transferred Employee's position held and aggregate annual compensation (iiincluding bonuses and commissions) to for Seller’s knowledge, are there no pending union, works council or similar labor organizing activities or arrangements; and (iii) in the three years prior to the date hereof, there has been no labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize the Business Employees, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to Business Employees. No unfair labor practice, labor dispute or labor charge or complaint is pending or, to the knowledge of Seller, threatened with respect to any Business Employee's last fiscal year. (b) Except as set forth in Schedule 3.10(bSCHEDULE 3.8(b), neither with respect to all Business Employees, Seller nor any Subsidiary does not currently maintainsmaintain, contributes contribute to or has have any liability under any Benefit Plan. With respect to each of the Benefit Plans identified on Schedule 3.10(bSCHEDULE 3.8(b), Seller has made available to Buyer true and complete copies of the most recent summary plan or summary or other written description describing all material terms thereof. (c) description. Each Benefit Plan that listed on SCHEDULE 3.8(b) has been operated in material compliance with applicable law, including ERISA. Each Benefit Plan which is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA ("PENSION PLAN") and which is intended to be qualified under Section 401(a) of the Code Code, has received a favorable determination letter, or has pending or has time remaining in which to file an application for such determination, letter from the IRS, and Internal Revenue Service with respect to the knowledge of Seller, no fact exists indicating that any such determination letter should be revoked or not issued or reissued. "TRA" (d) Other than as set forth in Schedule 3.10(b), no Benefit Plan is, and Seller, any Subsidiary or any ERISA Affiliate does not sponsor or maintain or has previously sponsored, maintained, contributed to, incurred an obligation to contribute to, or is or was required to contribute to: (i) any “multiemployer plan” as defined in Section 3(37) or 4011(a)(3) 1 of ERISARev. Proc. 93-39), or (ii) and Seller is not aware of any pension plan subject circumstances likely to Title IV result in revocation of ERISAany such favorable determination letter. Except as disclosed on SCHEDULE 3.8(b), Part 3 of Title I of ERISA or Section 412 of the Code. (e) No Seller does not have any obligations for retiree health and life benefits under any Benefit Plan provides for retiree or post-employment healthhas ever represented, disability promised or life benefits contracted (whether in oral or written form) to any Business Employee, and Seller, any Subsidiary or any ERISA Affiliate has not promised to or contracted with any Business Employee (either individually or to Business Employees as a groupemployee(s) that such employee(s) would be provided with retiree health or other retiree employee welfare life benefits. (fc) Neither the execution nor the delivery of this Agreement or the Collateral Agreements or the consummation of the transactions contemplated herebyExcept as disclosed in SCHEDULE 3.7(b), either alone or in combination with another event, will (i) entitle any Business Employee to any payment from Seller or any Subsidiary; (ii) increase the amount of compensation or benefits due from Seller or any Subsidiary to any such employee; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefits from Seller or any Subsidiary; or (iv) result in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code or any similar provisions of foreign, state or local Law. (g) Neither Seller nor any Subsidiary maintains or sponsors any “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code in which a Business Employee participates and may incur an additional tax under Section 409A of the Code. (h) Each Benefit Plan that covers any Business Employee outside of the United States or is otherwise not subject to ERISA or the Code has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable Laws (including without limitation any special provisions relating as relates to the tax status of contributions to, earnings of or distributions from such Benefit Plans where each such Benefit Plan was intended to have such tax status). (i) With respect to the Engenio Business, there is not presently pending or existing, and to Seller’s 's knowledge there is not threatened, (i) any strike, slowdown, picketing, or work stoppage, (ii) any application for certification of a collective bargaining agent, agent and (iii) any controversies grievance proceeding threatened or disputes pending, or to Seller’s knowledge, threatened between Seller or any Subsidiary and any of its employees, or (iv) any claims, litigation or disputes initiated by a works council or other applicable Government Bodythe Represented Employees, which controversies, claims, litigation or disputes, individually or in the aggregate, are or grievance proceeding could reasonably be expected to be have a Material Adverse Effect on the Business or a material to adverse effect on the Engenio Business, taken as a wholeoperation of the Business after the Closing Date. (j) Except for the defined benefit plan set forth on Schedule 3.10(b) with respect to Business Employees located in Germany, no Business Employee has a contractual right to any defined benefit pension or rights under an occupational pension plan. (k) In the twelve (12) months prior to the date hereof, no Business Employee located in the European Union has transferred to the Engenio Business from another business unit of Seller or any of its Subsidiaries or pursuant to the ARD Regulations.

Business Employees. (a) Schedule 3.10(a)(i3.10(a) contains a complete and accurate list of all the Engenio Mobility Business Employees as of March 2July 31, 20112007, showing for each Business Employee, the name, title, location, service date, leave status (active or inactive), annual base salary or wageswages as of such date, aggregate annual incentive/bonus or commission opportunity and 2011 salary increasecompensation for 2006. Except as set forth on Schedule 3.10(a)(ii3.10(a), (i) no none of the Business Employee Employees is covered by any union, collective bargaining agreement or other similar labor agreement; (ii) , nor, to Seller’s knowledge, are there no any pending union, works council or similar labor union organizing activities or arrangements; and . Seller will update Schedule 3.10(a) to be accurate as of the Closing Date at least five (iii5) in the three years Business Days prior to the date hereof, there has been no labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize the Business Employees, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to Business EmployeesClosing. No unfair labor practice, labor dispute practice or labor charge or complaint is pending or, to the knowledge of Seller, threatened with respect to any Business Employeeemployee of the Mobility Business. (b) Except as set forth in Schedule 3.10(b), with respect to the Business Employees, neither Seller nor any Subsidiary currently maintains, contributes to or has any liability under any Benefit Plan. With respect to each of the Benefit Plans identified on Schedule 3.10(b), Seller has made available to Buyer true and complete copies of the most recent summary plan or summary or other written description describing all material terms thereof. (c) . Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or has pending or has time remaining in which to file an application for such determination, from the IRS, and to the knowledge Seller is not aware of Seller, no fact exists indicating that reason why any such determination letter should be revoked or not issued or reissued. (d) Other than as set forth in Schedule 3.10(b), no Benefit Plan is, and Seller, . Neither Seller nor any Subsidiary or any ERISA Affiliate does not sponsor or maintain or has previously sponsored, maintained, contributed to, incurred an obligation to contribute to, or is or was required to contribute to: (i) any “multiemployer plan” as defined in Section 3(37) or 4011(a)(3) of ERISA, or (ii) any pension plan subject to Title IV of ERISA, Part 3 of Title I of ERISA or Section 412 of the Code. (e) No Benefit Plan provides for retiree or post-employment health, disability or life benefits a party to any Business Employeeagreement, and Sellercontract, any Subsidiary arrangement or any ERISA Affiliate plan that has not promised to resulted or contracted with any Business Employee (either individually or to Business Employees as a group) with retiree health or other retiree employee welfare benefits. (f) Neither the execution nor the delivery of this Agreement or the Collateral Agreements or the consummation of the transactions contemplated herebycould result, either alone separately or in combination with another eventthe aggregate, will (i) entitle any Business Employee to any payment from Seller or any Subsidiary; (ii) increase the amount of compensation or benefits due from Seller or any Subsidiary to any such employee; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefits from Seller or any Subsidiary; or (iv) result in the payment of any “excess parachute paymentpayments” within the meaning of Section 280G of the Code or any similar provisions of foreign, state or local Law. (g) Neither Seller nor any Subsidiary maintains or sponsors any “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code in which a Business Employee participates and may incur an additional tax under Section 409A of the Code. (h) Each Benefit Plan that covers any Business Employee outside of the United States or is otherwise not subject to ERISA or the Code has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable Laws (including without limitation any special provisions relating to the tax status of contributions to, earnings of or distributions from such Benefit Plans where each such Benefit Plan was intended to have such tax status). (ic) With respect to the Engenio Mobility Business, there is not presently pending or existing, and to Seller’s knowledge there is not threatened, (i) any strike, slowdown, picketing, or work stoppage, (ii) any application for certification of a collective bargaining agent, or (iii) any controversies or disputes pending, or to Seller’s knowledge, threatened between Seller or any Subsidiary and any of its employees, or (iv) any claims, litigation or disputes by a works council or other applicable Government Body, which controversies, claims, litigation or disputesemployees that, individually or in the aggregate, are have had or could reasonably be expected to be material to the Engenio Business, taken as have a wholeSeller Material Adverse Effect. (j) Except for the defined benefit plan set forth on Schedule 3.10(b) with respect to Business Employees located in Germany, no Business Employee has a contractual right to any defined benefit pension or rights under an occupational pension plan. (k) In the twelve (12) months prior to the date hereof, no Business Employee located in the European Union has transferred to the Engenio Business from another business unit of Seller or any of its Subsidiaries or pursuant to the ARD Regulations.

Business Employees. (a) Schedule 3.10(a)(i1.1(a) contains a complete and accurate list of all the Engenio Business Employees as of March 2, 2011the date specified in such list (which in any event shall be no more than ten (10) business days prior to the date hereof), showing for each Business Employee, the name, title, location, service date, leave status (active or inactive), annual base salary or wageswages as of such date, aggregate annual incentive/bonus or commission opportunity compensation for Seller’s 2002 fiscal year and 2011 salary increasewhich employees are represented by the Confederacion de Trabajadores de Mexico. Except as set forth on Schedule 3.10(a)(ii3.10(a), (i) no none of the Business Employee Employees is covered by any union, collective bargaining agreement or other similar labor agreement; (ii) , formal or informal, nor, to Seller’s knowledge, are has there no pending union, works council or similar been any labor union organizing activities or arrangements; and (iii) in the three years prior relating to the date hereof, there has been no labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize Business Employees within the Business Employees, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to Business Employees. No unfair labor practice, labor dispute or labor charge or complaint is pending or, to the knowledge of Seller, threatened with respect to any Business Employeepast five years. (b) Except as set forth in Schedule 3.10(b), neither with respect to the Business Employees, Seller nor any Subsidiary does not currently maintainsmaintain, contributes contribute to or has have any liability under any Benefit Plan. With respect to each of the Benefit Plans Plan identified on Schedule 3.10(b), Seller has made available to the Buyer true and complete copies of the most recent summary plan or summary or other written description describing thereof. Each Benefit Plan listed on Schedule 3.10(b) has been operated in material compliance with all material terms thereof. (c) applicable Laws, including ERISA. Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or has pending or has time remaining in which to file an application for such determination, from the IRS, and to the knowledge Seller is not aware of Seller, no fact exists indicating that reason why any such determination letter should be revoked or not issued or reissued. (d) Other than as set forth in Schedule 3.10(b), no Benefit Plan is, and Seller, . Neither Seller nor any Subsidiary or any ERISA Affiliate does not sponsor or maintain or has previously sponsored, maintained, contributed to, incurred an obligation to contribute to, or is or was required to contribute to: (i) any “multiemployer plan” as defined in Section 3(37) or 4011(a)(3) of ERISA, or (ii) any pension plan subject to Title IV of ERISA, Part 3 of Title I of ERISA or Section 412 of the Code. (e) No Benefit Plan provides for retiree or post-employment health, disability or life benefits a party to any Business Employeeagreement, and Sellercontract, any Subsidiary arrangement or any ERISA Affiliate plan that has not promised to resulted or contracted with any Business Employee (either individually or to Business Employees as a group) with retiree health or other retiree employee welfare benefits. (f) Neither the execution nor the delivery of this Agreement or the Collateral Agreements or the consummation of the transactions contemplated herebycould result, either alone separately or in combination with another eventthe aggregate, will (i) entitle any Business Employee to any payment from Seller or any Subsidiary; (ii) increase the amount of compensation or benefits due from Seller or any Subsidiary to any such employee; (iii) accelerate the vesting, funding or time of payment of any compensation, equity award or other benefits from Seller or any Subsidiary; or (iv) result in the payment of any “excess parachute paymentpayments” within the meaning of Section 280G of the Code or any similar provisions of foreign, state or local Lawlaw. (g) Neither Seller nor any Subsidiary maintains or sponsors any “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code in which a Business Employee participates and may incur an additional tax under Section 409A of the Code. (h) Each Benefit Plan that covers any Business Employee outside of the United States or is otherwise not subject to ERISA or the Code has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable Laws (including without limitation any special provisions relating to the tax status of contributions to, earnings of or distributions from such Benefit Plans where each such Benefit Plan was intended to have such tax status). (ic) With respect to the Engenio Optoelectronics Business, there is not presently pending or existing, and to Seller’s knowledge there is not threatened, (i) any strike, slowdown, picketing, or work stoppage, (ii) any application for certification of a collective bargaining agent, or (iii) any controversies or disputes pending, or to Seller’s knowledge, threatened between Seller or any Subsidiary and any of its employees, or (iv) any claims, litigation or disputes by a works council or other applicable Government Body, which controversies, claims, litigation or disputesemployees that, individually or in the aggregate, are have had or could reasonably be expected to be material to the Engenio Business, taken as have a wholeSeller Material Adverse Effect. (j) Except for the defined benefit plan set forth on Schedule 3.10(b) with respect to Business Employees located in Germany, no Business Employee has a contractual right to any defined benefit pension or rights under an occupational pension plan. (k) In the twelve (12) months prior to the date hereof, no Business Employee located in the European Union has transferred to the Engenio Business from another business unit of Seller or any of its Subsidiaries or pursuant to the ARD Regulations.