Common use of Company Employee Benefit Plans Clause in Contracts

Company Employee Benefit Plans. (a) Part 2.13(a) of the Company Disclosure Letter lists (a) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)); (b) all “specified fringe benefit plans” (as defined in Section 6039D(d)(1) of the Code); (c) all “nonqualified deferred compensation plans” (as defined in Sections 409A(d)(1) or 3121(v)(2)(C) of the Code); and (d) all bonus, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, termination, unemployment, disability, bonus, stock options, stock appreciation rights or other forms of incentive compensation, health, vision, dental or other insurance, or other benefit plans, programs or arrangements, or other Contracts; whether covering one Person or more than one Person, and whether or not subject to any of the provisions of ERISA, which are or have been maintained, contributed to or sponsored by Company or any ERISA Affiliate for the benefit of any employee, independent contractor, agent, director or stockholder of Company or any ERISA Affiliate or for the benefit of any spouse, dependents or beneficiaries of such Persons, other than Social Security, Medicare and state unemployment programs to which Company and the Company Subsidiaries are required by statute to contribute (each item listed on Part 2.13(a) of the Company Disclosure Letter being referred to herein individually, as a “Company Plan” and collectively, as the “Company Plans”). Company has delivered or made available to Parent, to the extent applicable, a true, complete and correct copy of: (i) each written Company Plan and descriptions of any unwritten Company Plan (including all amendments thereto whether or not such amendments are currently effective); (ii) each summary plan description and summary of material modifications relating to a Company Plan (if applicable); (iii) each trust agreement or other funding arrangement with respect to each Company Plan, including insurance Contracts (if applicable); (iv) the three most recently filed IRS Form 5500 relating to each Company Plan (if applicable); (v) the most recently received IRS determination letter for each Company Plan (if applicable); (vi) the three most recently prepared actuarial reports and financial statements in connection with each Company Plan (if applicable); (vii) all policies pertaining to fiduciary liability insurance covering the fiduciaries of any Company Plan, and all bonds pertaining to any Company Plan (if applicable); (viii) all nondiscrimination test results required under the Code for any Company Plan for the prior three years; and (ix) all material rulings, opinion letters, information letters, advisory opinions or other correspondence to or from or issued by the IRS, the United States Department of Labor or the Pension Benefit Guaranty Corporation with respect to any Company Plan. Except as set forth on Part 2.13(a) of the Company Disclosure Letter, neither Company nor any Company Subsidiary has made any commitment, (A) to create or cause to exist any Company Plan not set forth on Part 2.13(a) of the Company Disclosure Letter or (B) except as necessary to comply with changes in applicable Legal Requirements, to modify, change or terminate any Company Plan. (b) Except as set forth on Part 2.13(b) of the Company Disclosure Letter, neither Company nor any ERISA Affiliate has maintained, established, sponsored, contributed to, or participated in any (a) multi-employer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA), (b) multiple employer plan subject to Sections 4063 and 4064 of ERISA, (c) multiple employer plan (within the meaning of Section 413(c) of the Code), (d) multiple employer welfare arrangement (within the meaning of Section 3(40)(A) of ERISA), (e) plan subject to the minimum funding requirements of Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code, or (f) plan subject to Title IV of ERISA, nor does Company or any ERISA Affiliate have any obligations or liabilities, including withdrawal or successor liabilities, regarding any such plan. As used herein, the term “ERISA Affiliate” means any Person that, together with Company or Parent, as the case may be, is considered a “single employer” pursuant to Section 4001(b) of ERISA or Sections 414(b), (c), (m) or (o) of the Code. None of the Company Plans cover Employees providing services outside the United States.

Company Employee Benefit Plans. (a) Part 2.13(a) of Neither the Company Disclosure Letter lists (a) all nor any Subsidiary maintains, or at any time in the past has maintained, any “employee benefit plans (plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)); (b) all “specified fringe benefit plans” (as defined in . Section 6039D(d)(1) of the Code); (c) all “nonqualified deferred compensation plans” (as defined in Sections 409A(d)(1) or 3121(v)(2)(C) of the Code); and (d) all bonus, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, termination, unemployment, disability, bonus, stock options, stock appreciation rights or other forms of incentive compensation, health, vision, dental or other insurance, or other benefit plans, programs or arrangements, or other Contracts; whether covering one Person or more than one Person, and whether or not subject to any of the provisions of ERISA, which are or have been maintained, contributed to or sponsored by Company or any ERISA Affiliate for the benefit of any employee, independent contractor, agent, director or stockholder of Company or any ERISA Affiliate or for the benefit of any spouse, dependents or beneficiaries of such Persons, other than Social Security, Medicare and state unemployment programs to which Company and the Company Subsidiaries are required by statute to contribute (each item listed on Part 2.13(a3.10(a) of the Company Disclosure Letter Schedule sets forth a complete list of (i) all currently effective severance pay, salary continuation, bonus, incentive, stock option, retirement, pension, profit sharing or deferred compensation plans, Contracts, programs, funds or arrangements of any kind of the Company or any Subsidiary relating directly to employees, and (ii) all other employee benefit plans, Contracts, programs, funds or arrangements (whether written or oral, qualified or nonqualified, funded or unfunded, U.S. or non-U.S., currently effective or terminated) and any trust, escrow or similar Contract related thereto, whether or not funded, in respect of any present or former employees, directors, officers, stockholders, consultants or independent contractors of the Company or any Subsidiary that are sponsored or maintained by the Company or any Subsidiary or with respect to which the Company or any Subsidiary has made or is required to make payments, transfer or contributions (all of the above being hereinafter individually or collectively referred to herein individually, as a “Company Employee Plan” and collectively, as the or “Company Employee Plans”,” respectively). The Company has no liability with respect to any plan, arrangement or practice of the type described in the preceding sentence other than the Employee Plans, and neither the Company nor any Subsidiary has promised or announced or has any legally binding commitment to provide any such plan after the Closing. (b) With the exception of any state sponsored or state administered Employee Plan, copies of the following materials have been delivered or made available to Parent, to the extent applicable, a true, complete and correct copy ofPurchaser: (i) all current plan documents for each Employee Plan or, in the case of an unwritten Employee Plan, a written Company Plan and descriptions of any unwritten Company Plan (description thereof, including all amendments thereto whether announcements, booklets and the like which have been issued or not such amendments are currently effective); communicated to Employees, (ii) the most recent determination letter from each summary plan description and summary applicable Tax Authority with respect to any of material modifications relating to a Company Plan (the Employee Plans, if applicable); , (iii) each all current summary plan descriptions, summaries of material modifications, annual reports, and summary annual reports, (iv) all current trust agreement agreements, insurance contracts, and other documents relating to the funding or payment of benefits under any Employee Plan, and (v) any other material documents, forms or other instruments relating to any Employee Plan reasonably requested by Purchaser. (c) Each Employee Plan (with the exception of any Employee Plan sponsored or administered by a Governmental Entity) complies with all applicable Law (including applicable Law regarding the form, funding arrangement and operation of the Employee Plan) in all material respects. The Company Financial Statements accurately reflect the Employee Plan liabilities and accruals for contributions required to be paid to the Employee Plans, if any, in accordance with the Accounting Principles. All contributions required to have been made to all Employee Plans as of the Closing will have been made as of the Closing. There have not occurred, nor are there continuing any transactions or breaches of fiduciary duty under applicable Law with respect to each Company any Employee Plan which could have (i) a material adverse effect on any Employee Plan, including insurance Contracts or (if applicable); ii) a Company Material Adverse Effect. (ivd) With the three most recently filed IRS Form 5500 relating to each Company Plan (if applicable); (v) the most recently received IRS determination letter for each Company Plan (if applicable); (vi) the three most recently prepared actuarial reports and financial statements in connection with each Company Plan (if applicable); (vii) all policies pertaining to fiduciary liability insurance covering the fiduciaries exception of any Company PlanEmployee Plan sponsored or administered by a Governmental Entity, but including any mandatory plan under Italian Law, each Employee Plan has been maintained, operated, and administered by the Company or any Subsidiary in compliance with its terms and any related documents or agreements and in compliance with all bonds pertaining to applicable laws. (e) With the exception of any Employee Plan sponsored or administered by a Governmental Entity, but including any Company Plan (if applicable); (viii) all nondiscrimination test results required or Subsidiary obligations under the Code for any Company Plan for the prior three years; and (ix) all material rulingsmandatory plan under Italian Law, opinion lettersthere is no pending or threatened assessment, information letterscomplaint, advisory opinions proceeding, or other correspondence to investigation of any kind in any court or from or issued by the IRS, the United States Department of Labor or the Pension Benefit Guaranty Corporation government agency with respect to any Company Plan. Except as set forth on Part 2.13(aor Subsidiary obligations under any Employee Plan (other than routine claims for benefits), nor is there any Basis for one. (f) Section 3.10(f) of the Company Disclosure LetterSchedule sets forth a complete list, description and amounts of all severance arrangements binding on the Company or any Subsidiary, other than such arrangements which are prescribed by Law or under applicable collective bargaining agreements. (g) Other than under the SunRay Malta Holdings Limited Share Plan, as amended by Section 6.14, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, alone or in connection with any other event, (i) result in any payment (including severance, unemployment compensation or golden parachute) becoming due under any Employee Plan, (ii) increase any compensation or benefits (including severance, deferred compensation and equity benefits) otherwise payable under any Employee Plan, (iii) result in the acceleration of the time of payment or vesting of any benefits to any extent under any Employee Plan, or (iv) result in the forgiveness in whole or in part of any outstanding loans made by the Company or any Subsidiary to any Person. Other than under the SunRay Malta Holdings Limited Share Plan, as amended by Section 6.13, there is no benefit or payment under any Employee Plan or other severance or compensation arrangement that is contingent on this Agreement or the transactions contemplated by this Agreement, either alone or together with other events. (h) No benefits or rights other than those provided for by Law, applicable collective bargaining agreements, the Employee Plans or the individual employment agreements have been granted or promised to the Employees. (i) Neither the Company nor any Company Subsidiary has made has, in relation to any commitmentemployee or any director, (A) to create former employee or cause to exist any Company Plan not set forth on Part 2.13(a) former director of the Company Disclosure Letter or (B) except as necessary to comply with changes in applicable Legal Requirementsany Subsidiary, to modify, change or terminate any Company Plan. (b) Except as set forth on Part 2.13(b) of the Company Disclosure Letter, neither Company nor any ERISA Affiliate has maintained, established, sponsored, contributed to, or participated been involved in any transaction to which the United Kingdom Transfer of Undertakings (aProtection of Employment) multi-employer plan (within the meaning of Section 3(37) Regulations 1981 or 4001(a)(3) of ERISA)2006, (b) multiple employer plan subject to Sections 4063 and 4064 of ERISAas applicable, (c) multiple employer plan (within the meaning of Section 413(c) of the Code), (d) multiple employer welfare arrangement (within the meaning of Section 3(40)(A) of ERISA), (e) plan subject to the minimum funding requirements of Part 3 of Subtitle B of Title I of ERISA or Section 412 of the Code, or (f) plan subject to Title IV of ERISA, nor does Company or any ERISA Affiliate have any obligations or liabilities, including withdrawal or successor liabilities, regarding apply where any such plan. As used hereinemployees or directors had the right to membership of an occupational pension arrangement that provided any benefits that were available other than for old age, the term “ERISA Affiliate” means any Person that, together with Company invalidity or Parent, as the case may be, is considered a “single employer” pursuant to Section 4001(b) of ERISA or Sections 414(b), (c), (m) or (o) of the Code. None of the Company Plans cover Employees providing services outside the United Statesdeath.

Company Employee Benefit Plans. (a) Part 2.13(aSection 3.13(a) of the Company Disclosure Letter lists (a) sets forth a true and complete list of all “employee benefit plans (as defined in plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA and all other material medical, as amended (“ERISA”)); (b) all “specified fringe benefit plans” (as defined in Section 6039D(d)(1) of the Code); (c) all “nonqualified deferred compensation plans” (as defined in Sections 409A(d)(1) dental, life insurance, equity, bonus or 3121(v)(2)(C) of the Code); and (d) all bonusother incentive compensation, incentivedisability, salary continuation, severance, retention, retirement, pension, deferred compensation, retiree medical vacation, sick pay or life insurancepaid time off plans or policies, supplemental retirement, severance, termination, unemployment, disability, bonus, stock options, stock appreciation rights or and any other forms of incentive compensation, health, vision, dental or other insurance, or other benefit material plans, programs agreements (including employment, consulting and collective bargaining agreements), policies, trust funds or arrangementsarrangements (whether written or unwritten, insured or other Contracts; whether covering one Person self-insured) (i) established, maintained, sponsored or more than one Personcontributed to (or with respect to which any obligation to contribute has been undertaken) by the Company, and whether or not subject to any of the provisions of ERISA, which are or have been maintained, contributed to or sponsored by Company its Subsidiaries or any of their respective current ERISA Affiliate for the benefit Affiliates on behalf of any employee, independent contractorofficer, agentdirector, director stockholder or stockholder of Company or any ERISA Affiliate or for the benefit of any spouse, dependents or beneficiaries of such Persons, other than Social Security, Medicare and state unemployment programs to which Company and the Company Subsidiaries are required by statute to contribute (each item listed on Part 2.13(a) service provider of the Company Disclosure Letter being referred or its Subsidiaries (whether current, former or retired) or their beneficiaries, or (ii) with respect to herein individuallywhich the Company, its Subsidiaries or any of their respective current ERISA Affiliates has any material liability (whether contingent or actual) as to any such employee, officer, director, stockholder or other service provider or beneficiary (each a “Company Plan,” and collectively, as the “Company Plans”). . (b) The Company has delivered or made available to Parent, to the extent applicable, a true, complete and correct copy of: (i) copies of all material documents setting forth the terms of each written Company Plan and descriptions of any unwritten Company Plan (Plan, including all amendments thereto whether or not such amendments are currently effective)and all related trust documents; (ii) the three most recent annual reports (Form Series 5500), if any, required under ERISA or the Code in connection with each summary plan description and summary of material modifications relating to a Company Plan (if applicable)Plan; (iii) each trust agreement or other funding arrangement the most recent actuarial report (if any) for all Company Plans; (iv) the most recent summary plan description, if any, required under ERISA with respect to each Company Plan, including insurance Contracts (if applicable); (iv) the three most recently filed IRS Form 5500 relating to each Company Plan (if applicable); (v) the most recently received IRS determination letter for all material written administrative service agreements and group insurance contracts (if any) with respect to each Company Plan (if applicable)Plan; (vi) the three most recently prepared actuarial reports and financial statements in connection recent IRS determination or opinion letter (if any) issued with respect to each Company Plan (if applicable)intended to be qualified under Section 401(a) of the Code; and (vii) all policies pertaining to fiduciary liability insurance covering the fiduciaries of any Company Plan, and all bonds pertaining to any Company Plan (if applicable); (viii) all nondiscrimination test results required filings pending or made within the past three years under the Code for IRS’ Employee Plans Compliance Resolution System Program or any Company Plan for of its predecessors or the prior three years; and (ix) all material rulings, opinion letters, information letters, advisory opinions or other correspondence to or from or issued by the IRS, the United States Department of Labor or the Pension Benefit Guaranty Corporation Delinquent Filer Program with respect to any Company Plan. Except as set forth on Part 2.13(a) of the Company Disclosure Letter, neither Company nor any Company Subsidiary has made any commitment, (A) to create or cause to exist any Company Plan not set forth on Part 2.13(a) of the Company Disclosure Letter or (B) except as necessary to comply with changes in applicable Legal Requirements, to modify, change or terminate any Company Plan. (bc) Except as set forth on Part 2.13(b) None of the Company Disclosure LetterCompany, neither Company nor its Subsidiaries, any of their respective ERISA Affiliate has maintainedAffiliates or any of their respective predecessors currently, established, sponsoredor at any time in the past six years, contributed to, or contributes to, has been required to contribute to, participated in or participates in or in any (a) multi-employer way, directly or indirectly, has or had any liability with respect to any plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, or subject to Title IV of ERISA, including any “multiemployer plan” (within the meaning of Section 3(37) or 4001(a)(3) of ERISA), (bERISA or Section 414(f) multiple of the Code) or any “single-employer plan subject to Sections 4063 and 4064 of ERISA, (c) multiple employer plan plan” (within the meaning of Section 413(c4001(a)(15) of ERISA) that is subject to Section 4063, 4064 or 4069 of ERISA. (d) With respect to each of the Company Plans: (i) each Company Plan intended to qualify under Section 401(a) of the CodeCode has received a determination letter from the IRS regarding its qualified status under the Code for all statutory and regulatory changes with respect to plan qualification requirements for which the IRS will issue such a letter and nothing has occurred, whether by action or by failure to act, that caused or could reasonably cause the loss of such qualification; (ii) in all material respects, all payments required by each Company Plan, any collective bargaining agreement or other agreement, or by Law (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been made or provided for by the Company or its Subsidiaries in accordance with the provisions of each of the Company Plans, applicable Law and GAAP; (iii) no Proceeding has been asserted, instituted or, to the Company’s knowledge, has been threatened or anticipated against any of the Company Plans or any of the assets of any trust of any of the Company Plans (other than routine claims for benefits and appeals of such claims), or, with respect to their capacities in relation to the Company Plans only and other than routine claims for benefits and appeals of such claims, against any trustee or fiduciaries of the Company Plans thereof, any of the Company’s or its Subsidiaries’ ERISA Affiliates, or any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (dwhether current, former or retired); (iv) multiple employer welfare arrangement each Company Plan complies in form and has been maintained and operated in all material respects in accordance with its terms and applicable Law, including ERISA and the Code; (v) no non-exempt “prohibited transaction,” within the meaning of Section 3(40)(A4975 of the Code and Section 406 of ERISA, has occurred with respect to the Company Plans which could reasonably be expected to give rise to a material liability; (vi) no Company Plan is under, and neither the Company nor any of its Subsidiaries has received any notice of, an audit or investigation by the IRS, Department of Labor or any other Governmental Entity, and no such completed audit, if any, has resulted in the imposition of any material Tax or penalty; (vii) with respect to each Company Plan that is funded mostly or partially through an insurance policy, none of the Company, its Subsidiaries or any of their respective ERISA Affiliates currently has any material liability in the nature of retroactive rate adjustment, loss sharing arrangement or other actual or contingent material liability arising wholly or partially out of events occurring on or before the date of this Agreement or is reasonably expected to have such liability with respect to periods through the Effective Time; (viii) no Company Plan provides post-retirement health and welfare benefits to any current or former employee of the Company or its Subsidiaries, except as disclosed on Section 3.13(d) of ERISA)the Company Disclosure Letter or as required under Section 4980B of the Code, (e) plan subject to the minimum funding requirements of Part 3 of Subtitle B 6 of Title I of ERISA or any other applicable Law; and (ix) there are no loans by the Company or any of its Subsidiaries to any of their respective executive officers or directors. (e) The consummation of the Merger alone, or in combination with any other event, including, without limitation, a termination of any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (whether current, former or retired) or their beneficiaries, will not give rise to any liability under any Company Plan, including liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (whether current, former or retired) or their beneficiaries. No amount that could be received (whether in cash or property or the vesting of property) as a result of the consummation of the Merger by any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries under any Company Plan or otherwise would not be deductible by reason of Section 412 162(m) or Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code. Neither the Company nor any of its Subsidiaries has any indemnity obligation on or after the Effective Time for any Taxes imposed under Section 4999 or 409A of the Code. The Company has provided materially correct estimates (based on the assumptions stated in such estimates) of the following to Parent: (i) the maximum amount that could be paid to each individual who could reasonably be a “disqualified individual” (as such term is defined in Treasury Regulations Section 1.280G–1) entitled to receive a “parachute payment” (as such term is defined in Treasury Regulations Section 1.280G-1) in connection with the Merger under all employment, or (f) plan subject to Title IV of ERISAseverance and termination agreements currently in effect and under all other compensation arrangements and Company Plans currently in effect, nor does assuming that the individual’s employment with the Company or any ERISA Affiliate have any obligations or liabilities, including withdrawal or successor liabilities, regarding any such plan. As used herein, its Subsidiaries is terminated immediately following the term “ERISA Affiliate” means any Person that, together with Company or Parent, as the case may be, is considered a “single employer” pursuant to Section 4001(b) of ERISA or Sections 414(b)Effective Time, (c), ii) the “base amount” (m) or (oas defined in Section 280G(b)(e) of the Code) for each such individual as of the date of this Agreement, and (iii) the vesting schedule (including any acceleration provisions with respect thereto) for each outstanding Company Option, Company Restricted Share or other equity award held by each such individual as of the date of this Agreement. (f) Except as provided in the Company Plans, neither the Company nor any of its Subsidiaries has made any promises or commitments to create any additional Company Plan or to modify or change in any material way any existing Company Plan. (g) Neither the Company nor any of its Subsidiaries has unfunded liabilities pursuant to any Company Plan that is not intended to be qualified under Section 401(a) of the Code and is either an “account balance plan” or “nonaccount balance plan” within the meaning of Section 409A of the Code and the plan aggregation rules thereunder. None Each Company Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through December 31, 2008, and, if any amendments were reasonably necessary, has been amended prior to January 1, 2009 to comply in all material respects with Section 409A of the Code. (h) Except as would not be expected to give rise to a material liability, individually or in the aggregate, (i) any individual who performs services for the Company or any of its Subsidiaries and who is not treated as an employee for federal income Tax purposes by the Company or its Subsidiaries is not an employee under applicable Law or for any purpose including for Tax withholding purposes or Company Plan purposes; (ii) the Company and its Subsidiaries have no liability by reason of an individual who performs or performed services for the Company or its Subsidiaries in any capacity being improperly excluded from participating in a Company Plan; and (iii) each employee of the Company and its Subsidiaries has been properly classified as “exempt” or “non-exempt” under applicable Law. (i) Each Company Option (i) has an exercise price at least equal to the fair market value of Company Common Stock on a date no earlier than the date of the corporate action authorizing the grant, (ii) no Company Option has had its exercise date or grant date delayed or “back-dated” and (iii) all Company Options have been issued in compliance with all applicable Laws and properly accounted for in all material respects in accordance with GAAP. Section 3.13(i) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of: (x) all Company Equity Plans, indicating for each Company Equity Plan the number of shares of Company Common Stock issued to date under such Company Equity Plans, the number of shares of Company Common Stock subject to outstanding Company Options and other equity awards and the number of shares of Company Common Stock reserved for future issuance under such Company Equity Plan and (y) all holders of outstanding Company Options or other equity awards, indicating with respect to each Company Option or other award the Company Equity Plan under which it was granted, the number of shares of Company Common Stock subject to such Company Option or other award, the exercise price and the date of grant, as applicable. The Company has provided or made available to Parent complete and accurate copies of all Company Equity Plans cover Employees providing services outside and forms of all award agreements evidencing Company Options and other equity awards. (j) With respect to each Company Plan that is mandated by a government other than the United StatesStates or subject to the Laws of a jurisdiction outside of the United States (a “Foreign Company Plan”), the fair market value of the assets of each funded Foreign Company Plan, the liability of each insurer for any Foreign Company Plan funded through insurance or the book reserve established for any Foreign Company Plan, together with any accrued contributions, is sufficient in all material respects to procure or provide for the accrued benefit obligations, as of the date of this Agreement, with respect to all current and former participants in such Foreign Company Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Company Plan, and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations in any material respect. Each Foreign Company Plan has been maintained and operated in all material respects in accordance with the applicable plan document and all applicable Laws and other requirements, and if intended to qualify for special Tax treatment, satisfies all requirements for such treatment in all material respects.

Company Employee Benefit Plans. (ai) Part 2.13(a) Section 5M of the Company Disclosure Letter lists sets forth a true and complete list of: (a) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”))Benefit Plans; and (b) all “specified fringe benefit plans” (as defined in Section 6039D(d)(1) of any contracts between the Code); (c) all “nonqualified deferred compensation plans” (as defined in Sections 409A(d)(1) or 3121(v)(2)(C) of the Code); and (d) all bonus, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, termination, unemployment, disability, bonus, stock options, stock appreciation rights or other forms of incentive compensation, health, vision, dental or other insurance, or other benefit plans, programs or arrangements, or other Contracts; whether covering one Person or more than one Person, and whether or not subject to any of the provisions of ERISA, which are or have been maintained, contributed to or sponsored by Company or any ERISA Affiliate for the benefit of its Subsidiaries and any employee, officer, individual consultant, individual independent contractor, agent, contractor or director or stockholder of the Company or any ERISA Affiliate of its Subsidiaries providing compensation or for employee benefits to such individual, including any contracts providing compensation or employee benefits as a result of the benefit of any spouse, dependents sale or beneficiaries of such Persons, other than Social Security, Medicare and state unemployment programs to which Company and the Company Subsidiaries are required by statute to contribute (each item listed on Part 2.13(a) change in control of the Company Disclosure Letter being referred to herein individuallyor any of its Subsidiaries (each of (a) and (b), as a “Company Plan” and collectively, as the “Company Plans”). . (ii) The Company has delivered furnished, or made available by posting to Parentthe online data room, to the extent applicable, Buyer a true, true and complete and correct copy of: of each such Plan (i) each written Company Plan and descriptions or a description of any unwritten Company Plan Plan) and has delivered, or made available by posting to the online data room, to the Buyer a true and complete copy of the following, if applicable: (including all amendments thereto whether or not such amendments are currently effective); (iia) each trust or other funding arrangement, (b) the most recent summary plan description and summary of material modifications relating to a Company Plan modifications, (if applicable); (iii) each trust agreement or other funding arrangement with respect to each Company Plan, including insurance Contracts (if applicable); (ivc) the three two most recently filed IRS Form 5500 relating to each Company Plan Internal Revenue Service (if applicable); “IRS”) Forms 5500, (vd) the most recently received IRS determination letter for each Company Plan (if applicable); (vi) the three most recently prepared actuarial reports and financial statements in connection with each Company Plan (if applicable); (vii) all policies pertaining to fiduciary liability insurance covering the fiduciaries of any Company such Plan, and all bonds pertaining to (e) any Company Plan (if applicable); (viii) all nondiscrimination test results required under the Code for any Company Plan for the prior three years; and (ix) all material rulings, opinion letters, information letters, advisory opinions or other correspondence to or from or issued by the IRS, the United States Department of Labor or Form 10 filed with the Pension Benefit Guaranty Corporation within the past five years and (v) the most recently prepared actuarial report and financial statement in connection with respect to any Company each such Plan. Except as set forth on Part 2.13(a) of Neither the Company Disclosure Letter, neither Company nor any Company Subsidiary of its Subsidiaries has made any commitment, commitment (A) to create create, incur liability with respect to or cause to exist any Company Plan not set forth on Part 2.13(a) of the Company Disclosure Letter other employee benefit plan, program or arrangement, (B) except as necessary to comply with changes in applicable Legal Requirements, enter into any contract to provide compensation or benefits to any individual or (C) to modify, change or terminate any Company Plan, other than with respect to a modification, change or termination required by ERISA, the Code, or other applicable Law. (biii) Except as set forth on Part 2.13(b) None of the Company Disclosure Letter, neither Company nor any ERISA Affiliate has maintained, established, sponsored, contributed to, or participated in any (a) multi-employer Plans is a multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA), ERISA (ba “Multiemployer Plan”) multiple employer plan or is subject to Sections 4063 and 4064 of ERISA, (c) multiple employer plan (within the meaning of Section 413(c) of the Code), (d) multiple employer welfare arrangement (within the meaning of Section 3(40)(A) of ERISA), (e) plan subject to the minimum funding requirements of Part 3 of Subtitle B of Title I IV of ERISA or Section 412 of the Code. None of such Plans: (i) provides for the payment of separation, severance, termination or similar-type benefits to any person; (ii) obligates the Company or any of its Subsidiaries to pay separation, severance, termination or similar-type benefits solely or partially as a result of the transactions contemplated by this Agreement or the Ancillary Agreements; or (fiii) obligates the Company or any of its Subsidiaries to make any payment or provide any benefit as a result of the transactions contemplated by this Agreement or the Ancillary Agreements. None of such Plans provides for or promises retiree medical, disability or life insurance benefits to any current or former employee, officer, individual consultant, individual independent contractor or director of the Company or any of its Subsidiaries or any dependent thereof (other than pursuant to Section 4980B of the Code or as otherwise required by applicable Law). (iv) Each Plan has been operated in all material respects in accordance with its terms and the requirements of all applicable Laws, including ERISA and the Code. Each of the Company and its Subsidiaries has, in all material respects, performed all obligations required to be performed by it and is not in any material respect in default under or in violation under any Plan, nor to the Knowledge of the Company, is there any such default or violation by any other party to any Plan. No Action is pending or, to the Knowledge of the Company, threatened with respect to any Plan, other than claims for benefits in the ordinary course, and, to the Knowledge of the Company, no fact or event exists that would give rise to any such Action. (v) Each Plan that is intended to be qualified under Section 401(a) of the Code, and each related trust that is intended to be exempt from federal income taxation under Section 501(a) of the Code has received a timely favorable opinion or determination letter from the IRS. To the Knowledge of the Company, no fact or event has occurred since the date of such determination letter or letters from the IRS that would reasonably be expected to adversely affect the qualified status of any such Plan or the exempt status of any such trust. (vi) The Company is not a member of (i) a “controlled group of corporations,” (ii) a “trade or business under common control,” or (iii) an “affiliated service group” (in each case within the meaning of Section 414 of the Code) of which any member has maintained, sponsored or contributed to any Multiemployer Plan or any employee benefit plan subject to Title IV of ERISA or Section 412 of the Code. (vii) The Company and each Subsidiary has correctly classified all individuals who directly or indirectly perform services for them for purposes of each Employee Benefit Plan, ERISA, the Code, unemployment compensation laws, workers’ compensation laws, and other applicable Law. (viii) Except as set forth in Section 5M of the Company Disclosure Schedule, none of the Company or any Subsidiary maintains, contributes to, or has any liability or contingent liability with respect to any Foreign Plan. With respect to each Foreign Plan: (a) such Foreign Plan covers only employees of a single company who regularly perform services in a single country and no other employees; (b) such Foreign Plan has been administered in material compliance with all legal requirements, including providing all benefits required by applicable Law; (c) all contributions to such Foreign Plan required through the Closing Date have been made or properly accrued by the Company or its Subsidiaries; (c) the fair market value of the assets of each funded Foreign Plan, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide in full for the accrued benefit obligations, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to and obligations under such Foreign Plan, and no transaction contemplated by this Agreement shall cause any such assets or insurance obligations to be less than such benefit obligations; and (e) the consummation of the transactions contemplated by this Agreement will not by itself create or otherwise result in any material liability with respect to such Foreign Plan. (ix) There has not been any prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, with respect to any Plan that would reasonably be expected to result in material liability to the Company or any of its Subsidiaries. Neither the Company nor does any of its Subsidiaries has incurred any liability under, arising out of or by operation of Title IV of ERISA (other than the payment of premiums to the Pension Benefit Guaranty Corporation with respect to a Plan). (x) All contributions, premiums or payments required to be made with respect to any Plan have been made on or before their due dates. No Tax deduction that has been claimed with respect to such contribution or payment to a Plan has been challenged or disallowed by any Governmental Entity. (xi) There are no Actions, disputes or claims (other than routine claims for benefits) pending or, to the Knowledge of the Company, threatened with respect to any Plan or any related trust or other funding medium thereunder or with respect to the Company or any ERISA Affiliate have as the sponsor or fiduciary thereof or, to the Knowledge of the Company, with respect to any obligations other fiduciary thereof. (xii) No Plan or liabilitiesany related trust or other funding medium thereunder or any fiduciary thereof is, including withdrawal or successor liabilities, regarding any such plan. As used hereinto the Knowledge of the Company, the term “subject of an audit, investigation or examination by any Governmental Entity. (xiii) The Company and its ERISA Affiliate” means Affiliates do not maintain any Person that, together with Company or Parent, as the case may be, Plan which is considered a “single employergroup health plan,” pursuant to as such term is defined in Section 4001(b) of ERISA or Sections 414(b), (c), (m) or (o5000(b)(1) of the Code, that has not been administered and operated in all material respects in compliance with the applicable requirements of Section 601 of ERISA, Section 4980B(b) of the Code and the applicable provisions of the Health Insurance Portability and Accountability Act of 1986. None The Company is not subject to any material liability, including additional contributions, fines, penalties or loss of tax deduction as a result of such administration and operation. (xiv) Except as would not result in any material liability to the Company, any of its Subsidiaries or any Plan participant, any Plan subject to the requirements of Section 409A of the Code has complied in form and operation with the requirements of Section 409A. (xv) Neither the Company nor any of its Subsidiaries is a party to any Contract or Plan that (i) has resulted or would result, separately or in the aggregate, in connection with this Agreement or any change of control of the Company Plans cover Employees providing services outside or its Subsidiaries, in the United Statespayment of any “excess parachute payments” within the meaning of Section 280G of the Code (excluding for this purpose, any agreements entered into at the direction of Buyer), or (ii) could obligate it to make any payments that will not be fully deductible under Section 162(m) of the Code.

Company Employee Benefit Plans. (a) Part 2.13(aSet forth on Schedule 3.18 attached hereto is an accurate and complete list of all domestic and foreign (i) "EMPLOYEE BENEFIT PLANS," within the meaning of the Company Disclosure Letter lists (a) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)); (b) all “specified fringe benefit plans” (as defined in Section 6039D(d)(1) of the Code); (c) all “nonqualified deferred compensation plans” (as defined in Sections 409A(d)(1) or 3121(v)(2)(C) of the Code); and (d) all bonus, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, termination, unemployment, disability, bonus, stock options, stock appreciation rights or other forms of incentive compensation, health, vision, dental or other insuranceamended, or other benefit plans, programs or arrangements, or other Contracts; whether covering one Person or more than one Personany successor law, and whether or not subject to any of the provisions of rules and regulations thereunder ("ERISA, which are or have been maintained, contributed to or sponsored by Company or any ERISA Affiliate for the benefit of any employee, independent contractor, agent, director or stockholder of Company or any ERISA Affiliate or for the benefit of any spouse, dependents or beneficiaries of such Persons, other than Social Security, Medicare and state unemployment programs to which Company and the Company Subsidiaries are required by statute to contribute (each item listed on Part 2.13(a) of the Company Disclosure Letter being referred to herein individually, as a “Company Plan” and collectively, as the “Company Plans”). Company has delivered or made available to Parent, to the extent applicable, a true, complete and correct copy of: (i) each written Company Plan and descriptions of any unwritten Company Plan (including all amendments thereto whether or not such amendments are currently effective"); (ii) each summary plan description bonus, stock option, stock purchase, restricted stock, stock appreciation rights, incentive, equity participation, profit-sharing, savings, pension, retirement, deferred compensation, medical, health, sickness, life, disability, accident, severance, salary continuation, accrued leave, vacation, fringe benefit, sick pay, sick leave, cafeteria or flexible spending, dependent care, supplemental retirement and summary unemployment benefit plans, programs, arrangements, commitments, obligations, practices, and/or funds (whether or not insured) and "VOLUNTARY EMPLOYEES' BENEFICIARY ASSOCIATIONS" (for purposes of material modifications relating to a Company Plan (if applicable)this Section, "COMPANY VEBAS") under Section 501(c)(9) of the Code; and (iii) employment, consulting, termination, severance and change in control contracts or agreements; in each trust agreement case for active, retired or other funding arrangement former employees or directors, whether or not any such plans, programs, arrangements, commitments, obligations, contracts, agreements, practices, and/or funds (referred to in (i), (ii) or (iii) above) are in writing or are otherwise exempt from the provisions of ERISA; that are or have been established, maintained, sponsored, adopted, followed, participated in or contributed to (or with respect to each Company Plan, including insurance Contracts (if applicable); (ivwhich an obligation to contribute has been undertaken) the three most recently filed IRS Form 5500 relating to each Company Plan (if applicable); (v) the most recently received IRS determination letter for each Company Plan (if applicable); (vi) the three most recently prepared actuarial reports and financial statements in connection with each Company Plan (if applicable); (vii) all policies pertaining to fiduciary liability insurance covering the fiduciaries of any Company Plan, and all bonds pertaining to any Company Plan (if applicable); (viii) all nondiscrimination test results required under the Code for any Company Plan for the prior three years; and (ix) all material rulings, opinion letters, information letters, advisory opinions or other correspondence to or from or issued by the IRS, the United States Department of Labor or the Pension Benefit Guaranty Corporation with respect to which any Company Plan. Except as set forth on Part 2.13(a) obligation or liability (including, for this purpose and for the purpose of all of the representations in this Section 3.18, any indirect, contingent, potential or secondary liability) is borne by the Company Disclosure Letteror any of its current or previous Subsidiaries or affiliates (including, neither Company nor any Company Subsidiary has made any commitment, (A) to create or cause to exist any Company Plan not set forth on Part 2.13(a) for this purpose and for the purpose of all of the Company Disclosure Letter or (B) except as necessary representations in this Section 3.18, any predecessors to comply with changes in applicable Legal Requirements, to modify, change or terminate any Company Plan. (b) Except as set forth on Part 2.13(b) of the Company Disclosure Letter, neither or to any such Subsidiaries or affiliates and all employers (whether or not incorporated) that would be treated together with the Company nor and/or any ERISA Affiliate has maintained, established, sponsored, contributed to, or participated in any of its Subsidiaries as a single employer (ai) multi-employer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA), (b) multiple employer plan subject to Sections 4063 and 4064 of ERISA, (c) multiple employer plan (within the meaning of Section 413(c) 414 of the Code), Code or (dii) multiple employer welfare arrangement (within the meaning of Section 3(40)(A) of ERISA), (e) plan subject to the minimum funding requirements of Part 3 of Subtitle B of Title I of ERISA or Section 412 as a result of the CodeCompany, any Subsidiary or (f) plan subject to Title IV of ERISA, nor does Company or any ERISA Affiliate have any obligations or liabilities, including withdrawal or successor liabilities, regarding any such plan. As used herein, the term “ERISA Affiliate” means any Person that, together with Company or Parent, as the case may be, is considered a “single employer” pursuant to Section 4001(b) of ERISA or Sections 414(b), (c), (m) or (o) of the Code. None of the Company Plans cover Employees providing services outside the United States.affiliate

Company Employee Benefit Plans. (a) Part 2.13(aSection 3.13(a) of the Company Disclosure Letter lists (a) sets forth a true and complete list of all “employee benefit plans (as defined in plans” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974ERISA and all other material medical, as amended (“ERISA”)); (b) all “specified fringe benefit plans” (as defined in Section 6039D(d)(1) of the Code); (c) all “nonqualified deferred compensation plans” (as defined in Sections 409A(d)(1) dental, life insurance, equity, bonus or 3121(v)(2)(C) of the Code); and (d) all bonusother incentive compensation, incentivedisability, salary continuation, severance, retention, retirement, pension, deferred compensation, retiree medical vacation, sick pay or life insurancepaid time off plans or policies, supplemental retirement, severance, termination, unemployment, disability, bonus, stock options, stock appreciation rights or and any other forms of incentive compensation, health, vision, dental or other insurance, or other benefit material plans, programs agreements (including employment, consulting and collective bargaining agreements), policies, trust funds or arrangementsarrangements (whether written or unwritten, insured or other Contracts; whether covering one Person self-insured) (i) established, maintained, sponsored or more than one Personcontributed to (or with respect to which any obligation to contribute has been undertaken) by the Company, and whether or not subject to any of the provisions of ERISA, which are or have been maintained, contributed to or sponsored by Company its Subsidiaries or any of their respective current ERISA Affiliate for the benefit Affiliates on behalf of any employee, independent contractorofficer, agentdirector, director stockholder or stockholder of Company or any ERISA Affiliate or for the benefit of any spouse, dependents or beneficiaries of such Persons, other than Social Security, Medicare and state unemployment programs to which Company and the Company Subsidiaries are required by statute to contribute (each item listed on Part 2.13(a) service provider of the Company Disclosure Letter being referred or its Subsidiaries (whether current, former or retired) or their beneficiaries, or (ii) with respect to herein individuallywhich the Company, its Subsidiaries or any of their respective current ERISA Affiliates has any material liability (whether contingent or actual) as to any such employee, officer, director, stockholder or other service provider or beneficiary (each a “Company Plan,” and collectively, as the “Company Plans”). . (b) The Company has delivered or made available to Parent, to the extent applicable, a true, complete and correct copy of: (i) copies of all material documents setting forth the terms of each written Company Plan and descriptions of any unwritten Company Plan (Plan, including all amendments thereto whether or not such amendments are currently effective)and all related trust documents; (ii) the three most recent annual reports (Form Series 5500), if any, required under ERISA or the Code in connection with each summary plan description and summary of material modifications relating to a Company Plan (if applicable)Plan; (iii) each trust agreement or other funding arrangement the most recent actuarial report (if any) for all Company Plans; (iv) the most recent summary plan description, if any, required under ERISA with respect to each Company Plan, including insurance Contracts (if applicable); (iv) the three most recently filed IRS Form 5500 relating to each Company Plan (if applicable); (v) the most recently received IRS determination letter for all material written administrative service agreements and group insurance contracts (if any) with respect to each Company Plan (if applicable)Plan; (vi) the three most recently prepared actuarial reports and financial statements in connection recent IRS determination or opinion letter (if any) issued with respect to each Company Plan (if applicable)intended to be qualified under Section 401(a) of the Code; and (vii) all policies pertaining to fiduciary liability insurance covering the fiduciaries of any Company Plan, and all bonds pertaining to any Company Plan (if applicable); (viii) all nondiscrimination test results required filings pending or made within the past three years under the Code for IRS’ Employee Plans Compliance Resolution System Program or any Company Plan for of its predecessors or the prior three years; and (ix) all material rulings, opinion letters, information letters, advisory opinions or other correspondence to or from or issued by the IRS, the United States Department of Labor or the Pension Benefit Guaranty Corporation Delinquent Filer Program with respect to any Company Plan. Except as set forth on Part 2.13(a) of the Company Disclosure Letter, neither Company nor any Company Subsidiary has made any commitment, (A) to create or cause to exist any Company Plan not set forth on Part 2.13(a) of the Company Disclosure Letter or (B) except as necessary to comply with changes in applicable Legal Requirements, to modify, change or terminate any Company Plan. (bc) Except as set forth on Part 2.13(b) None of the Company Disclosure LetterCompany, neither Company nor its Subsidiaries, any of their respective ERISA Affiliate has maintainedAffiliates or any of their respective predecessors currently, established, sponsoredor at any time in the past six years, contributed to, or contributes to, has been required to contribute to, participated in or participates in or in any (a) multi-employer way, directly or indirectly, has or had any liability with respect to any plan subject to the minimum funding standards of Section 412 of the Code or Section 302 of ERISA, or subject to Title IV of ERISA, including any “multiemployer plan” (within the meaning of Section 3(37) or 4001(a)(3) of ERISA), (bERISA or Section 414(f) multiple of the Code) or any “single-employer plan subject to Sections 4063 and 4064 of ERISA, (c) multiple employer plan plan” (within the meaning of Section 413(c4001(a)(15) of ERISA) that is subject to Section 4063, 4064 or 4069 of ERISA. (d) With respect to each of the Company Plans: (i) each Company Plan intended to qualify under Section 401(a) of the CodeCode has received a determination letter from the IRS regarding its qualified status under the Code for all statutory and regulatory changes with respect to plan qualification requirements for which the IRS will issue such a letter and nothing has occurred, whether by action or by failure to act, that caused or could reasonably cause the loss of such qualification; (ii) in all material respects, all payments required by each Company Plan, any collective bargaining agreement or other agreement, or by Law (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been made or provided for by the Company or its Subsidiaries in accordance with the provisions of each of the Company Plans, applicable Law and GAAP; (iii) no Proceeding has been asserted, instituted or, to the Company’s knowledge, has been threatened or anticipated against any of the Company Plans or any of the assets of any trust of any of the Company Plans (other than routine claims for benefits and appeals of such claims), or, with respect to their capacities in relation to the Company Plans only and other than routine claims for benefits and appeals of such claims, against any trustee or fiduciaries of the Company Plans thereof, any of the Company’s or its Subsidiaries’ ERISA Affiliates, or any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (dwhether current, former or retired); (iv) multiple employer welfare arrangement each Company Plan complies in form and has been maintained and operated in all material respects in accordance with its terms and applicable Law, including ERISA and the Code; (v) no non-exempt “prohibited transaction,” within the meaning of Section 3(40)(A4975 of the Code and Section 406 of ERISA, has occurred with respect to the Company Plans which could reasonably be expected to give rise to a material liability; (vi) no Company Plan is under, and neither the Company nor any of its Subsidiaries has received any notice of, an audit or investigation by the IRS, Department of Labor or any other Governmental Entity, and no such completed audit, if any, has resulted in the imposition of any material Tax or penalty; (vii) with respect to each Company Plan that is funded mostly or partially through an insurance policy, none of the Company, its Subsidiaries or any of their respective ERISA Affiliates currently has any material liability in the nature of retroactive rate adjustment, loss sharing arrangement or other actual or contingent material liability arising wholly or partially out of events occurring on or before the date of this Agreement or is reasonably expected to have such liability with respect to periods through the Effective Time; (viii) no Company Plan provides post-retirement health and welfare benefits to any current or former employee of the Company or its Subsidiaries, except as disclosed on Section 3.13(d) of ERISA)the Company Disclosure Letter or as required under Section 4980B of the Code, (e) plan subject to the minimum funding requirements of Part 3 of Subtitle B 6 of Title I of ERISA or any other applicable Law; and (ix) there are no loans by the Company or any of its Subsidiaries to any of their respective executive officers or directors. (e) The consummation of the Merger alone, or in combination with any other event, including, without limitation, a termination of any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (whether current, former or retired) or their beneficiaries, will not give rise to any liability under any Company Plan, including liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (whether current, former or retired) or their beneficiaries. No amount that could be received (whether in cash or property or the vesting of property) as a result of the consummation of the Merger by any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries under any Company Plan or otherwise would not be deductible by reason of Section 412 162(m) or Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code. Neither the Company nor any of its Subsidiaries has any indemnity obligation on or after the Effective Time for any Taxes imposed under Section 4999 or 409A of the Code. The Company has provided materially correct estimates (based on the assumptions stated in such estimates) of the following to Parent: (i) the maximum amount that could be paid to each individual who could reasonably be a “disqualified individual” (as such term is defined in Treasury Regulations Section 1.280G-1) entitled to receive a “parachute payment” (as such term is defined in Treasury Regulations Section 1.280G-1) in connection with the Merger under all employment, or (f) plan subject to Title IV of ERISAseverance and termination agreements currently in effect and under all other compensation arrangements and Company Plans currently in effect, nor does assuming that the individual’s employment with the Company or any ERISA Affiliate have any obligations or liabilities, including withdrawal or successor liabilities, regarding any such plan. As used herein, its Subsidiaries is terminated immediately following the term “ERISA Affiliate” means any Person that, together with Company or Parent, as the case may be, is considered a “single employer” pursuant to Section 4001(b) of ERISA or Sections 414(b)Effective Time, (c), ii) the “base amount” (m) or (oas defined in Section 280G(b)(e) of the Code) for each such individual as of the date of this Agreement, and (iii) the vesting schedule (including any acceleration provisions with respect thereto) for each outstanding Company Option, Company Restricted Share or other equity award held by each such individual as of the date of this Agreement. (f) Except as provided in the Company Plans, neither the Company nor any of its Subsidiaries has made any promises or commitments to create any additional Company Plan or to modify or change in any material way any existing Company Plan. (g) Neither the Company nor any of its Subsidiaries has unfunded liabilities pursuant to any Company Plan that is not intended to be qualified under Section 401(a) of the Code and is either an “account balance plan” or “nonaccount balance plan” within the meaning of Section 409A of the Code and the plan aggregation rules thereunder. None Each Company Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through December 31, 2008, and, if any amendments were reasonably necessary, has been amended prior to January 1, 2009 to comply in all material respects with Section 409A of the Code. (h) Except as would not be expected to give rise to a material liability, individually or in the aggregate, (i) any individual who performs services for the Company or any of its Subsidiaries and who is not treated as an employee for federal income Tax purposes by the Company or its Subsidiaries is not an employee under applicable Law or for any purpose including for Tax withholding purposes or Company Plan purposes; (ii) the Company and its Subsidiaries have no liability by reason of an individual who performs or performed services for the Company or its Subsidiaries in any capacity being improperly excluded from participating in a Company Plan; and (iii) each employee of the Company and its Subsidiaries has been properly classified as “exempt” or “non-exempt” under applicable Law. (i) Each Company Option (i) has an exercise price at least equal to the fair market value of Company Common Stock on a date no earlier than the date of the corporate action authorizing the grant, (ii) no Company Option has had its exercise date or grant date delayed or “back-dated” and (iii) all Company Options have been issued in compliance with all applicable Laws and properly accounted for in all material respects in accordance with GAAP. Section 3.13(i) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of: (x) all Company Equity Plans, indicating for each Company Equity Plan the number of shares of Company Common Stock issued to date under such Company Equity Plans, the number of shares of Company Common Stock subject to outstanding Company Options and other equity awards and the number of shares of Company Common Stock reserved for future issuance under such Company Equity Plan and (y) all holders of outstanding Company Options or other equity awards, indicating with respect to each Company Option or other award the Company Equity Plan under which it was granted, the number of shares of Company Common Stock subject to such Company Option or other award, the exercise price and the date of grant, as applicable. The Company has provided or made available to Parent complete and accurate copies of all Company Equity Plans cover Employees providing services outside and forms of all award agreements evidencing Company Options and other equity awards. (j) With respect to each Company Plan that is mandated by a government other than the United StatesStates or subject to the Laws of a jurisdiction outside of the United States (a “Foreign Company Plan”), the fair market value of the assets of each funded Foreign Company Plan, the liability of each insurer for any Foreign Company Plan funded through insurance or the book reserve established for any Foreign Company Plan, together with any accrued contributions, is sufficient in all material respects to procure or provide for the accrued benefit obligations, as of the date of this Agreement, with respect to all current and former participants in such Foreign Company Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Company Plan, and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations in any material respect. Each Foreign Company Plan has been maintained and operated in all material respects in accordance with the applicable plan document and all applicable Laws and other requirements, and if intended to qualify for special Tax treatment, satisfies all requirements for such treatment in all material respects.

Company Employee Benefit Plans. (a) Part 2.13(aSection 3.13(a) of the Company Disclosure Letter lists sets forth a true and complete list of all (ai) all other than any Foreign Plan, “employee benefit plans (as defined in plans” within the meaning of Section 3(3) of ERISA, all medical, dental, life insurance, flexible reimbursement equity accounts, equity (including the Employee Retirement Income Security Act of 1974Company Equity Plans and the Company ESPP), as amended bonus (“ERISA”)); (b) all “specified fringe benefit plans” (as defined in Section 6039D(d)(1) of the Code); (c) all “nonqualified deferred compensation plans” (as defined in Sections 409A(d)(1sales incentive, short and long term) or 3121(v)(2)(C) of the Code); and (d) all bonusother incentive compensation, incentivedisability, salary continuation, severance, retention, retirement, pension, deferred compensation, retiree medical vacation, sick pay or life insurancepaid time off plans or policies, supplemental retirementrelocation and expatriate policies, severance, termination, unemployment, disability, bonus, stock options, stock appreciation rights or and any other forms of incentive compensation, health, vision, dental or other insurance, or other benefit material plans, programs agreements (including employment, consulting and collective bargaining agreements), policies, trust funds or arrangementsarrangements (whether written or unwritten, insured or other Contracts; whether covering one Person or more than one Person, and whether or not subject to any of the provisions of ERISA, which are or have been maintained, contributed to or sponsored by Company or any ERISA Affiliate for the benefit of any employee, independent contractor, agent, director or stockholder of Company or any ERISA Affiliate or for the benefit of any spouse, dependents or beneficiaries of such Persons, other than Social Security, Medicare and state unemployment programs to which Company and the Company Subsidiaries are required by statute to contribute self-insured) (each item listed on Part 2.13(a) of the Company Disclosure Letter being referred to herein individually, as a “Company Plan,” and collectively, as the “Company Plans”). , and (ii) all material employee benefit plans, policies, agreements or arrangements mandated by a government other than the United States or that are subject to the Laws of a jurisdiction outside of the United States (each, a “Foreign Plan,” and collectively, the “Foreign Plans”), in each case either (A) established, maintained, sponsored or contributed to (or with respect to which any obligation to contribute has been undertaken) by the Company, its Subsidiaries or any of their respective ERISA Affiliates on behalf of any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (whether current, former or retired) or their beneficiaries, or (B) with respect to which the Company, its Subsidiaries or any of their respective ERISA Affiliates has any obligation on behalf of any such employee, officer, director, stockholder or other service provider or beneficiary. (b) The Company has delivered or made available to Parent: (i) copies of all material documents setting forth the terms of each Company Plan and Foreign Plan, including all amendments thereto and all related trust documents; (ii) the three most recent annual reports (Form Series 5500), summary annual reports, discrimination testing results, if any, required under ERISA or the Code in connection with each Company Plan; (iii) the most recent actuarial reports (if applicable) for all Company Plans; (iv) the most recent summary plan description, if any, required under ERISA with respect to each Company Plan and Foreign Plan; (v) all material written contracts, instruments or agreements relating to each Company Plan and Foreign Plan, including administrative service agreements and group insurance contracts; (vi) the extent most recent IRS determination or opinion letter issued with respect to each Company Plan intended to be qualified under Section 401(a) of the Code; (vii) all filings under the IRS’ Employee Plans Compliance Resolution System Program or any of its predecessors or the Department of Labor Delinquent Filer Program; and (viii) with respect to any Company Plan that is a health plan, dental plan or health care reimbursement plan, documentation supporting adoption of the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder. (c) None of the Company, its Subsidiaries, any of their respective ERISA Affiliates or any of their respective predecessors has ever contributed to, contributes to, has ever been required to contribute to, or otherwise participated in or participates in or in any way, directly or indirectly, has any liability with respect to any plan subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA, including any “multiemployer plan” (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code) or any “single-employer plan” (within the meaning of Section 4001(a)(15) of ERISA) which is subject to Sections 4063, 4064 or 4069 of ERISA. (d) With respect to each of the Company Plans and the Foreign Plans (as applicable), a true, complete and correct copy ofexcept as set forth on Section 3.13(d) of the Company Disclosure Letter: (i) each written Company Plan intended to qualify under Section 401(a) of the Code has received a determination letter from the IRS, or is subject to an opinion letter, upon which it may rely regarding its qualified status under the Code for all statutory and descriptions regulatory changes with respect to plan qualification requirements for which the IRS will issue such a letter and nothing has occurred, whether by action or by failure to act, that caused or could cause the loss of such qualification or the imposition of any unwritten Company Plan (including all amendments thereto whether material penalty or not such amendments are currently effective)Tax liability; (ii) all payments required by each summary plan description and summary of material modifications relating to a Company Plan and each Foreign Plan, any collective bargaining agreement or other agreement, or by Law (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been made or provided for by the Company or its Subsidiaries in accordance with the provisions of each of the Company Plans, applicable Law and GAAP (if applicable); (iii) each no Proceeding has been threatened in writing, asserted, instituted or, to the knowledge of the Company, is anticipated against or relating to any of the Company Plans or the Foreign Plans (other than non-material routine claims for benefits and appeals of such claims) or any of the assets of any trust agreement of any of the Company Plans or other funding arrangement with respect to each Company Plan, including insurance Contracts (if applicable)the Foreign Plans; (iv) the three most recently filed IRS Form 5500 relating to each Company Plan (if applicable)complies in form and has been maintained and operated in all material respects in accordance with its terms and applicable Law, including ERISA and the Code; (v) none of the most recently received IRS determination letter for each Company, any of its Subsidiaries or, to the Company’s knowledge, any third party, has engaged in a non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code and Section 406 of ERISA, with respect to the Company Plan (if applicable)Plans and no such “prohibited transaction” with respect to the Company Plans is reasonably expected to occur as a result of any action or inaction by the Company, any of its Subsidiaries or, to the Company’s knowledge, any third party; (vi) the three most recently prepared actuarial reports and financial statements in connection with each no Company Plan (is under, and neither the Company nor its Subsidiaries has received any notice of, an audit or investigation by the IRS, Department of Labor or any other Governmental Entity, and no such completed audit, if applicable)any, has resulted in the imposition of any material Tax or penalty; (vii) all policies pertaining to fiduciary liability insurance covering the fiduciaries of any no Company Plan, Plan or Foreign Plan provides post-retirement health and all bonds pertaining welfare benefits to any current or former employee of the Company Plan (if applicable)or its Subsidiaries, except as required under Section 4980B of the Code, Part 6 of Title I of ERISA or any other applicable Law; and (viii) there are no loans by the Company or any of its Subsidiaries to any of their respective employees, officers, directors or other service providers outstanding, and there have never been any loans by the Company or any of its Subsidiaries in violation of Section 402 of Sxxxxxxx-Xxxxx. (e) With respect to each Foreign Plan: (i) each Foreign Plan has been maintained and operated in all nondiscrimination test results required under material respects in accordance with the Code applicable plan document and all applicable Laws and other requirements, and if intended to qualify for any Company Plan special tax treatment, satisfies all requirements for the prior three yearssuch treatment; and (ixii) all material rulingsno Foreign Plan is under, opinion lettersand neither the Company nor any of its Subsidiaries has received any notice of, information lettersan audit or investigation by any Governmental Entity, advisory opinions or other correspondence to or from or issued by the IRSand no such completed audit, if any, has resulted in, the United States Department imposition of Labor any material penalty or the Pension Benefit Guaranty Corporation with respect to any Company Plan. material Tax liability. (f) Except as set forth on Part 2.13(aSection 3.13(f) of the Company Disclosure Letter: (i) the consummation of the Merger alone, neither or in combination with a termination of any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (whether current, former or retired) or their beneficiaries (where such termination event would not alone have an effect described in this clause (i)), will not give rise to any liability under any Company Plan or Foreign Plan, including liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (whether current, former or retired) or their beneficiaries; (ii) no amount that could be received (whether in cash or property or the vesting of property), as a result of the consummation of the Merger, by any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries under any Company Plan, Foreign Plan or otherwise would not be deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code. Neither the Company nor any of its Subsidiaries has any indemnity obligation on or after the Effective Time for any Taxes imposed under Section 4999 or 409A of the Code. The Company Subsidiary has provided the following to Parent: (i) the preliminary estimated maximum amount that could be paid to each “disqualified individual” (as such term is defined in Treasury Regulations Section 1.280G–1) in connection with the Merger under all employment, severance and termination agreements, other compensation arrangements and Company Plans currently in effect, assuming that the individual’s employment with the Company or its Subsidiaries is terminated immediately following the Effective Time and (ii) the “base amount” (as defined in Section 280G(b)(e) of the Code) for each such individual as of the date of this Agreement. Within 15 Business Days following the date of this Agreement, the Company will provide final estimates of the aforementioned information to Parent. (g) None of the Company, its Subsidiaries, any of their respective ERISA Affiliates has made any commitmentpromises or commitments, (A) whether legally binding or not, to create any additional Company Plan, Foreign Plan, agreement or cause arrangement, or to exist modify or change in any material way any existing Company Plan or Foreign Plan (other than to bring any Company Plan not into compliance with Section 409A of the Code, as set forth in Section 3.13(f) of the Company Disclosure Letter). (h) Each Company Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. (i) Except as would not have, either individually or in the aggregate, a Company Material Adverse Effect, any individual who performs services for the Company or any of its Subsidiaries and who is not treated as an employee for federal income tax purposes by the Company or its Subsidiaries is not an employee under applicable Law or for any purpose including for Tax withholding purposes or Company Plan purposes. The Company and its Subsidiaries have no material liability by reason of an individual who performs or performed services for the Company or its Subsidiaries in any capacity being improperly excluded from participating in a Company Plan. Each employee of the Company and its Subsidiaries has been properly classified as “exempt” or “non-exempt” under applicable Law. (j) Each Company Option (i) has an exercise price at least equal to the fair market value of Company Common Stock on Part 2.13(athe date of the grant, (ii) no Company Option has had its exercise date or grant date delayed or “back-dated,” and (iii) all Company Options have been issued in compliance in all material respects with all applicable Laws and properly accounted for in all material respects in accordance with GAAP. Section 3.13(j) of the Company Disclosure Letter sets forth a complete and accurate list, as of November 15, 2007, of: (x) all Company Equity Plans, indicating for each Company Equity Plan the number of shares of Company Common Stock authorized for issuance under such Company Equity Plans, the number of shares of Company Common Stock reserved for future issuance under such Company Equity Plan, and the number of shares of Company Common Stock available for future issuance under such Company Equity Plan, and (y) all holders of outstanding Company Options or other equity awards, indicating with respect to each Company Option or other award the Company Equity Plan under which it was granted, the number of shares of Company Common Stock subject to such Company Option or other award, the exercise price, the date of grant, and the vesting schedule (B) except including any acceleration provisions with respect thereto), as necessary to comply with changes in applicable Legal Requirements, to modify, change or terminate any Company Plan. (b) Except as set forth on Part 2.13(b) applicable. All of the shares of capital stock of the Company Disclosure Letter, neither Company nor any ERISA Affiliate has maintained, established, sponsored, contributed to, or participated in any (a) multi-employer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA), (b) multiple employer plan subject to Sections 4063 and 4064 of ERISACompany Options or other equity awards will be, (c) multiple employer plan (within the meaning of Section 413(c) of the Code), (d) multiple employer welfare arrangement (within the meaning of Section 3(40)(A) of ERISA), (e) plan subject upon issuance pursuant to the minimum funding requirements exercise of Part 3 such instruments, duly authorized, validly issued, fully paid, nonassessable and free of Subtitle B of Title I of ERISA or Section 412 of the Code, or (f) plan subject to Title IV of ERISA, nor does Company or any ERISA Affiliate have any obligations or liabilities, including withdrawal or successor liabilities, regarding any such plan. As used herein, the term “ERISA Affiliate” means any Person that, together with Company or Parent, as the case may be, is considered a “single employer” pursuant to Section 4001(b) of ERISA or Sections 414(b), (c), (m) or (o) of the Code. None of the Company Plans cover Employees providing services outside the United Statesall preemptive rights.

Company Employee Benefit Plans. (a) Part 2.13(aSection 3.13(a) of the Company Disclosure Letter lists sets forth a true and complete list of all (ai) all other than any Foreign Plan, “employee benefit plans (as defined in plans” within the meaning of Section 3(3) of ERISA, all medical, dental, life insurance, flexible reimbursement equity accounts, equity (including the Employee Retirement Income Security Act of 1974Company Equity Plans and the Company ESPP), as amended bonus (“ERISA”)); (b) all “specified fringe benefit plans” (as defined in Section 6039D(d)(1) of the Code); (c) all “nonqualified deferred compensation plans” (as defined in Sections 409A(d)(1sales incentive, short and long term) or 3121(v)(2)(C) of the Code); and (d) all bonusother incentive compensation, incentivedisability, salary continuation, severance, retention, retirement, pension, deferred compensation, retiree medical vacation, sick pay or life insurancepaid time off plans or policies, supplemental retirementrelocation and expatriate policies, severance, termination, unemployment, disability, bonus, stock options, stock appreciation rights or and any other forms of incentive compensation, health, vision, dental or other insurance, or other benefit material plans, programs agreements (including employment, consulting and collective bargaining agreements), policies, trust funds or arrangementsarrangements (whether written or unwritten, insured or other Contracts; whether covering one Person or more than one Person, and whether or not subject to any of the provisions of ERISA, which are or have been maintained, contributed to or sponsored by Company or any ERISA Affiliate for the benefit of any employee, independent contractor, agent, director or stockholder of Company or any ERISA Affiliate or for the benefit of any spouse, dependents or beneficiaries of such Persons, other than Social Security, Medicare and state unemployment programs to which Company and the Company Subsidiaries are required by statute to contribute self-insured) (each item listed on Part 2.13(a) of the Company Disclosure Letter being referred to herein individually, as a “Company Plan,” and collectively, as the “Company Plans”). , and (ii) all material employee benefit plans, policies, agreements or arrangements mandated by a government other than the United States or that are subject to the Laws of a jurisdiction outside of the United States (each, a “Foreign Plan,” and collectively, the “Foreign Plans”), in each case either (A) established, maintained, sponsored or contributed to (or with respect to which any obligation to contribute has been undertaken) by the Company, its Subsidiaries or any of their respective ERISA Affiliates on behalf of any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (whether current, former or retired) or their beneficiaries, or (B) with respect to which the Company, its Subsidiaries or any of their respective ERISA Affiliates has any obligation on behalf of any such employee, officer, director, stockholder or other service provider or beneficiary. (b) The Company has delivered or made available to Parent: (i) copies of all material documents setting forth the terms of each Company Plan and Foreign Plan, including all amendments thereto and all related trust documents; (ii) the three most recent annual reports (Form Series 5500), summary annual reports, discrimination testing results, if any, required under ERISA or the Code in connection with each Company Plan; (iii) the most recent actuarial reports (if applicable) for all Company Plans; (iv) the most recent summary plan description, if any, required under ERISA with respect to each Company Plan and Foreign Plan; (v) all material written contracts, instruments or agreements relating to each Company Plan and Foreign Plan, including administrative service agreements and group insurance contracts; (vi) the extent most recent IRS determination or opinion letter issued with respect to each Company Plan intended to be qualified under Section 401(a) of the Code; (vii) all filings under the IRS’ Employee Plans Compliance Resolution System Program or any of its predecessors or the Department of Labor Delinquent Filer Program; and (viii) with respect to any Company Plan that is a health plan, dental plan or health care reimbursement plan, documentation supporting adoption of the requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder. (c) None of the Company, its Subsidiaries, any of their respective ERISA Affiliates or any of their respective predecessors has ever contributed to, contributes to, has ever been required to contribute to, or otherwise participated in or participates in or in any way, directly or indirectly, has any liability with respect to any plan subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA, including any “multiemployer plan” (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code) or any “single-employer plan” (within the meaning of Section 4001(a)(15) of ERISA) which is subject to Sections 4063, 4064 or 4069 of ERISA. (d) With respect to each of the Company Plans and the Foreign Plans (as applicable), a true, complete and correct copy ofexcept as set forth on Section 3.13(d) of the Company Disclosure Letter: (i) each written Company Plan intended to qualify under Section 401(a) of the Code has received a determination letter from the IRS, or is subject to an opinion letter, upon which it may rely regarding its qualified status under the Code for all statutory and descriptions regulatory changes with respect to plan qualification requirements for which the IRS will issue such a letter and nothing has occurred, whether by action or by failure to act, that caused or could cause the loss of such qualification or the imposition of any unwritten Company Plan (including all amendments thereto whether material penalty or not such amendments are currently effective)Tax liability; (ii) all payments required by each summary plan description and summary of material modifications relating to a Company Plan and each Foreign Plan, any collective bargaining agreement or other agreement, or by Law (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been made or provided for by the Company or its Subsidiaries in accordance with the provisions of each of the Company Plans, applicable Law and GAAP (if applicable); (iii) each no Proceeding has been threatened in writing, asserted, instituted or, to the knowledge of the Company, is anticipated against or relating to any of the Company Plans or the Foreign Plans (other than non-material routine claims for benefits and appeals of such claims) or any of the assets of any trust agreement of any of the Company Plans or other funding arrangement with respect to each Company Plan, including insurance Contracts (if applicable)the Foreign Plans; (iv) the three most recently filed IRS Form 5500 relating to each Company Plan (if applicable)complies in form and has been maintained and operated in all material respects in accordance with its terms and applicable Law, including ERISA and the Code; (v) none of the most recently received IRS determination letter for each Company, any of its Subsidiaries or, to the Company’s knowledge, any third party, has engaged in a non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code and Section 406 of ERISA, with respect to the Company Plan (if applicable)Plans and no such “prohibited transaction” with respect to the Company Plans is reasonably expected to occur as a result of any action or inaction by the Company, any of its Subsidiaries or, to the Company’s knowledge, any third party; (vi) the three most recently prepared actuarial reports and financial statements in connection with each no Company Plan (is under, and neither the Company nor its Subsidiaries has received any notice of, an audit or investigation by the IRS, Department of Labor or any other Governmental Entity, and no such completed audit, if applicable)any, has resulted in the imposition of any material Tax or penalty; (vii) all policies pertaining to fiduciary liability insurance covering the fiduciaries of any no Company Plan, Plan or Foreign Plan provides post-retirement health and all bonds pertaining welfare benefits to any current or former employee of the Company Plan (if applicable)or its Subsidiaries, except as required under Section 4980B of the Code, Part 6 of Title I of ERISA or any other applicable Law; and (viii) there are no loans by the Company or any of its Subsidiaries to any of their respective employees, officers, directors or other service providers outstanding, and there have never been any loans by the Company or any of its Subsidiaries in violation of Section 402 of Sxxxxxxx-Xxxxx. (e) With respect to each Foreign Plan: (i) each Foreign Plan has been maintained and operated in all nondiscrimination test results required under material respects in accordance with the Code applicable plan document and all applicable Laws and other requirements, and if intended to qualify for any Company Plan special tax treatment, satisfies all requirements for the prior three yearssuch treatment; and (ixii) all material rulingsno Foreign Plan is under, opinion lettersand neither the Company nor any of its Subsidiaries has received any notice of, information lettersan audit or investigation by any Governmental Entity, advisory opinions or other correspondence to or from or issued by the IRSand no such completed audit, if any, has resulted in, the United States Department imposition of Labor any material penalty or the Pension Benefit Guaranty Corporation with respect to any Company Plan. material Tax liability. (f) Except as set forth on Part 2.13(aSection 3.13(f) of the Company Disclosure Letter: (i) the consummation of the Merger alone, neither or in combination with a termination of any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (whether current, former or retired) or their beneficiaries (where such termination event would not alone have an effect described in this clause (i)), will not give rise to any liability under any Company Plan or Foreign Plan, including liability for severance pay, unemployment compensation, termination pay or withdrawal liability, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries (whether current, former or retired) or their beneficiaries; (ii) no amount that could be received (whether in cash or property or the vesting of property), as a result of the consummation of the Merger, by any employee, officer, director, stockholder or other service provider of the Company or its Subsidiaries under any Company Plan, Foreign Plan or otherwise would not be deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code. Neither the Company nor any of its Subsidiaries has any indemnity obligation on or after the Effective Time for any Taxes imposed under Section 4999 or 409A of the Code. The Company Subsidiary has provided the following to Parent: (i) the preliminary estimated maximum amount that could be paid to each “disqualified individual” (as such term is defined in Treasury Regulations Section 1.280G—1) in connection with the Merger under all employment, severance and termination agreements, other compensation arrangements and Company Plans currently in effect, assuming that the individual’s employment with the Company or its Subsidiaries is terminated immediately following the Effective Time and (ii) the “base amount” (as defined in Section 280G(b)(e) of the Code) for each such individual as of the date of this Agreement. Within 15 Business Days following the date of this Agreement, the Company will provide final estimates of the aforementioned information to Parent. (g) None of the Company, its Subsidiaries, any of their respective ERISA Affiliates has made any commitmentpromises or commitments, (A) whether legally binding or not, to create any additional Company Plan, Foreign Plan, agreement or cause arrangement, or to exist modify or change in any material way any existing Company Plan or Foreign Plan (other than to bring any Company Plan not into compliance with Section 409A of the Code, as set forth in Section 3.13(f) of the Company Disclosure Letter). (h) Each Company Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. (i) Except as would not have, either individually or in the aggregate, a Company Material Adverse Effect, any individual who performs services for the Company or any of its Subsidiaries and who is not treated as an employee for federal income tax purposes by the Company or its Subsidiaries is not an employee under applicable Law or for any purpose including for Tax withholding purposes or Company Plan purposes. The Company and its Subsidiaries have no material liability by reason of an individual who performs or performed services for the Company or its Subsidiaries in any capacity being improperly excluded from participating in a Company Plan. Each employee of the Company and its Subsidiaries has been properly classified as “exempt” or “non-exempt” under applicable Law. (j) Each Company Option (i) has an exercise price at least equal to the fair market value of Company Common Stock on Part 2.13(athe date of the grant, (ii) no Company Option has had its exercise date or grant date delayed or “back-dated,” and (iii) all Company Options have been issued in compliance in all material respects with all applicable Laws and properly accounted for in all material respects in accordance with GAAP. Section 3.13(j) of the Company Disclosure Letter sets forth a complete and accurate list, as of November 15, 2007, of: (x) all Company Equity Plans, indicating for each Company Equity Plan the number of shares of Company Common Stock authorized for issuance under such Company Equity Plans, the number of shares of Company Common Stock reserved for future issuance under such Company Equity Plan, and the number of shares of Company Common Stock available for future issuance under such Company Equity Plan, and (y) all holders of outstanding Company Options or other equity awards, indicating with respect to each Company Option or other award the Company Equity Plan under which it was granted, the number of shares of Company Common Stock subject to such Company Option or other award, the exercise price, the date of grant, and the vesting schedule (B) except including any acceleration provisions with respect thereto), as necessary to comply with changes in applicable Legal Requirements, to modify, change or terminate any Company Plan. (b) Except as set forth on Part 2.13(b) applicable. All of the shares of capital stock of the Company Disclosure Letter, neither Company nor any ERISA Affiliate has maintained, established, sponsored, contributed to, or participated in any (a) multi-employer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA), (b) multiple employer plan subject to Sections 4063 and 4064 of ERISACompany Options or other equity awards will be, (c) multiple employer plan (within the meaning of Section 413(c) of the Code), (d) multiple employer welfare arrangement (within the meaning of Section 3(40)(A) of ERISA), (e) plan subject upon issuance pursuant to the minimum funding requirements exercise of Part 3 such instruments, duly authorized, validly issued, fully paid, nonassessable and free of Subtitle B of Title I of ERISA or Section 412 of the Code, or (f) plan subject to Title IV of ERISA, nor does Company or any ERISA Affiliate have any obligations or liabilities, including withdrawal or successor liabilities, regarding any such plan. As used herein, the term “ERISA Affiliate” means any Person that, together with Company or Parent, as the case may be, is considered a “single employer” pursuant to Section 4001(b) of ERISA or Sections 414(b), (c), (m) or (o) of the Code. None of the Company Plans cover Employees providing services outside the United Statesall preemptive rights.