Common use of Employee Benefit Plans and ERISA Clause in Contracts

Employee Benefit Plans and ERISA. Except as listed on SCHEDULE 5.16 hereto, Seller does not maintain or sponsor and has not made and is not required to make contributions to any pension, profit-sharing, stock bonus, stock option, thrift or other retirement plan, medical, hospitalization, vision, dental, life, disability, vacation or other insurance or benefit plan, employee stock ownership plan, deferred compensation, stock ownership, stock purchase, performance share, bonus, benefit or other incentive plan, severance plan or other similar plan, agreement, arrangement or understanding relating to Seller or respective employees (the "Employee Benefit Plans"), whether or not such plan is or is intended to be qualified under Section 401(a), 404A or any other section of the Code, including without limitation, all employee benefit plans (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to the provisions of ERISA. Except as set forth in SCHEDULE 5.16, each Employee Benefit Plan maintained or sponsored by Seller or to which Seller makes or is required to make employer contributions (collectively, the "Plans") is in full force and effect in accordance with its terms and is, and each plan administrator and fiduciary of each Plan is, in compliance with all applicable requirements of ERISA and other applicable laws, regulations and rulings. The only Plans that are "pension benefit plans" (within the meaning of Section 3(2) of ERISA), other than any such plans that are described in Section 401(a)(1) of ERISA, maintained or sponsored by Seller or to which Seller makes or is required to make employer contributions, are identified on SCHEDULE 5.16 as such (the "Pension Benefit Plans"). No Pension Benefit Plan or any trust created under one of the Pension Benefit Plans or any trustee, administrator or sponsor thereof, has engaged in a "prohibited transaction" as that term is defined in Section 4975(c)(1) of the Code, that could subject the Pension Benefit Plan, trust, trustee, administrator or sponsor thereof, or any party dealing with the Pension Benefit Plan or any such trust to the tax or penalty on prohibited transactions imposed by said Section 4975, nor is the fiduciary (as defined in Section 3 of ERISA) of the Pension Benefit Plan or any employee benefit plan (as defined in Section 3 of ERISA) maintained by Seller acting in a manner that constitutes a breach of its fiduciary duty, as set forth in ERISA. Except as set forth in SCHEDULE 5.16, the Pension Benefit Plans have not been terminated, nor have contributions thereto been discontinued, nor have there been any "reportable events," as that term is defined in Section 4043 of ERISA, since the effective date of Section 4043 of ERISA. The Pension Benefit Plans have not incurred any "accumulated funding deficiency," as such term is defined in Section 302 of ERISA (whether or not waived), since the effective date of Section 302 of ERISA, or prior thereto, and all contributions required to be made have been made. Seller does not have an

Employee Benefit Plans and ERISA. Except as listed on SCHEDULE Schedule 5.16 hereto, Seller does not none of the Sellers maintain or sponsor and has not made and or make or is not required to make contributions to any pension, profit-sharing, stock bonus, stock option, thrift or other retirement plan, medical, hospitalization, vision, dental, life, disability, vacation or other insurance or benefit plan, employee stock ownership plan, deferred compensation, stock ownership, stock purchase, performance share, bonus, benefit or other incentive plan, severance plan or other similar plan, agreement, arrangement or understanding relating to Seller any of the Sellers or their respective employees (the "Employee Benefit Plans"), whether or not such plan is or is intended to be qualified under Section 401(a), 404A or any other section of the Code, including without limitation, all employee benefit plans (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to the provisions of ERISA. Except as set forth in SCHEDULE Schedule 5.16, each Employee Benefit Plan maintained or sponsored by Seller either of the Sellers or to which Seller either of the Sellers makes or is required to make employer contributions (collectively, the "Plans") is in full force and effect in accordance with its terms and is, and each plan administrator and fiduciary of each Plan is, in compliance with all applicable requirements of ERISA and other applicable laws, regulations and rulings. The only Plans that are "pension benefit plans" (within the meaning of Section 3(2) of ERISA), other than any such plans that are described in Section 401(a)(1) of ERISA, maintained or sponsored by Seller either of the Sellers or to which Seller either of the Sellers makes or is required to make employer contributions, are identified on SCHEDULE Schedule 5.16 as such (the "Pension Benefit Plans"). No Pension Benefit Plan or any trust created under one of the Pension Benefit Plans or any trustee, administrator or sponsor thereof, has engaged in a "prohibited transaction" as that term is defined in Section 4975(c)(1) of the Code, that could subject the Pension Benefit Plan, trust, trustee, administrator or sponsor thereof, or any party dealing with the Pension Benefit Plan or any such trust to the tax or penalty on prohibited transactions imposed by said Section 4975, nor is the fiduciary (as defined in Section 3 of ERISA) of the Pension Benefit Plan or any employee benefit plan (as defined in Section 3 of ERISA) maintained by Seller either of the Sellers acting in a manner that constitutes a breach of its fiduciary duty, as set forth in ERISA. Except as set forth in SCHEDULE Schedule 5.16, the Pension Benefit Plans have not been terminated, nor have contributions thereto been discontinued, nor have there been any "reportable events," as that term is defined in Section 4043 of ERISA, since the effective date of Section 4043 of ERISA. The Pension Benefit Plans have not incurred any "accumulated funding deficiency," as such term is defined in Section 302 of ERISA (whether or not waived), since the effective date of Section 302 of ERISA, or prior thereto, and all contributions required to be made have been made. Seller Prior to the Closing Date, all Plans will either be terminated or the participation of employees of Sellers therein will cease. Neither of the Sellers has an existing defined benefit pension plan covering its employees. None of the Pension Benefit Plans identified on Schedule 5.16 are multiemployer plans as defined in Section 3(37) of ERISA. All appropriate administrative actions and required compliance with appropriate administrative actions and required compliance with appropriate Internal Revenue Service and Department of Labor rules and regulations have been taken or are in process in a timely manner. No contributions pursuant to the Pension Benefit Plans have been made in such amounts as would violate Section 404 of the Code so as to disqualify the accompanying trust. Each of the Sellers has in force sufficient bonding for every fiduciary who is required to be bonded with respect to the Pension Benefit Plans pursuant to Section 412 of ERISA. There does not have anexist any pending or, to the best of the knowledge of Sellers and Shareholders, threatened litigation against any fiduciary of any Pension Benefit Plan, nor has any bonding company been called on to defend any such fiduciary. A true and complete copy of each existing Plan has been furnished to DCRI along with the most recent favorable determination letter issued by the Internal Revenue Service with respect thereto and the two most recent annual reports (on form 550 series) required to be filed with respect thereto.

Employee Benefit Plans and ERISA. Except as listed on SCHEDULE 5.16 hereto, Seller does not maintain or sponsor (i) Schedule 2.1(j) sets forth a true and has not made and is not required to make contributions to any pension, profit-sharing, stock bonus, stock option, thrift or other retirement plan, medical, hospitalization, vision, dental, life, disability, vacation or other insurance or complete list of each "employee benefit plan, employee stock ownership plan, deferred compensation, stock ownership, stock purchase, performance share, bonus, benefit or other incentive plan, severance plan or other similar plan, agreement, arrangement or understanding relating to Seller or respective employees " (the "Employee Benefit Plans"), whether or not such plan is or is intended to be qualified under Section 401(a), 404A or any other section of the Code, including without limitation, all employee benefit plans (within the meaning of as defined by Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether and any other bonus, profit sharing, pension, compensation, deferred compensation, stock option, stock purchase, fringe benefit, severance, post-retirement, scholarship, disability, sick leave, vacation, individual employment, commission, bonus, payroll practice, retention, or not subject other plan, agreement, policy, trust fund or arrangement (each such plan, agreement, policy, trust fund or arrangement is referred to the provisions of ERISA. Except herein as set forth in SCHEDULE 5.16, each an "Employee Benefit Plan maintained or sponsored by Seller or to which Seller makes or is required to make employer contributions (Plan", and collectively, the "Employee Benefit Plans") that is currently in full force and effect or which has been approved before the date hereof but is not yet effective, for the benefit of (i) directors or employees of Seller working in accordance the Division or any other persons performing services for Seller in the Division, (ii) former directors or employees of Seller previously working in the Division or any other persons formerly performing services for Seller in the Division, and/or (iii) beneficiaries of anyone described in (i) or (ii) (collectively, "Division Employees") or with its terms and isrespect to which Seller or any "ERISA Affiliate" (hereby defined to include any trade or business, and each plan administrator and fiduciary whether or not incorporated, other than Seller, which has employees who are or have been at any date of each Plan isdetermination occurring within the preceding six (6) years, in compliance with all applicable requirements treated pursuant to Section 4001(a)(14) of ERISA and and/or Section 414 of the Internal Revenue Code of 1986, as amended ("Code") as employees of a single employer which includes Seller) has or has had any obligation on behalf of any Division Employee. Except as disclosed on Schedule 2.1(j) attached hereto, there are no other applicable laws, regulations and rulingsbenefits to which any Division Employee is entitled. The only Plans that are No Plan is a "pension benefit plansmultiemployer plan" (within the meaning of as defined by Section 3(23(37) of ERISA). With respect to Division Employees and former Division Employees, their spouses and dependents, the Seller has no obligation to provide, or liability for, health care, life insurance, severance or other than any such plans that are described in benefits after termination of employment except (a) continuation of coverage as required by Section 401(a)(1) 601 of ERISA, maintained or sponsored by Seller or to which Seller makes or is required to make employer contributions, are identified on SCHEDULE 5.16 as such (the "Pension Benefit Plans"). No Pension Benefit Plan or any trust created under one ERISA and Section 4980B of the Pension Benefit Plans or any trustee, administrator or sponsor thereof, has engaged in a "prohibited transaction" as that term is defined in Section 4975(c)(1Code and (b) of the Code, that could subject the Pension Benefit Plan, trust, trustee, administrator or sponsor thereof, or any party dealing with the Pension Benefit Plan or any such trust to the tax or penalty on prohibited transactions imposed by said Section 4975, nor is the fiduciary (as defined in Section 3 of ERISA) of the Pension Benefit Plan or any employee benefit plan (as defined in Section 3 of ERISA) maintained by Seller acting in a manner that constitutes a breach of its fiduciary duty, as set forth in ERISA. Except as set forth in SCHEDULE 5.16, the Pension Benefit Plans have not been terminated, nor have contributions thereto been discontinued, nor have there been any "reportable events," as that term is defined in Section 4043 of ERISA, since the effective date of Section 4043 of ERISA. The Pension Benefit Plans have not incurred any "accumulated funding deficiency," as such term is defined in Section 302 of ERISA (whether or not waived), since the effective date of Section 302 of ERISA, or prior thereto, continuation rights and all contributions required to be made have been made. Seller does not have anconversion rights under applicable state laws.

Employee Benefit Plans and ERISA. Except as listed on SCHEDULE 5.16 hereto, Seller Mountain does not maintain or sponsor and has not made and is not required to make contributions to any pension, profit-sharing, stock bonus, stock option, thrift or other retirement plan, medical, hospitalization, vision, dental, life, disability, vacation or other insurance or benefit plan, employee stock ownership plan, deferred compensation, stock ownership, stock purchase, performance share, bonus, benefit or other incentive plan, severance plan or other similar plan, agreement, arrangement or understanding relating to Seller Mountain or respective employees (the "Employee Benefit Plans"), whether or not such plan is or is intended to be qualified under Section 401(a), 404A or any other section of the Code, including without limitation, all employee benefit plans (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), whether or not subject to the provisions of ERISA. Except as set forth in SCHEDULE 5.16, each Employee Benefit Plan maintained or sponsored by Seller Mountain or to which Seller Mountain makes or is required to make employer contributions (collectively, the "Plans") is in full force and effect in accordance with its terms and is, and each plan administrator and fiduciary of each Plan is, in compliance with all applicable requirements of ERISA and other applicable laws, regulations and rulings. The only Plans that are "pension benefit plans" (within the meaning of Section 3(2) of ERISA), other than any such plans that are described in Section 401(a)(1) of ERISA, maintained or sponsored by Seller Mountain or to which Seller Mountain makes or is required to make employer contributions, are identified on SCHEDULE 5.16 as such (the "Pension Benefit Plans"). No Pension Benefit Plan or any trust created under one of the Pension Benefit Plans or any trustee, administrator or sponsor thereof, has engaged in a "prohibited transaction" as that term is defined in Section 4975(c)(1) of the Code, that could subject the Pension Benefit Plan, trust, trustee, administrator or sponsor thereof, or any party dealing with the Pension Benefit Plan or any such trust to the tax or penalty on prohibited transactions imposed by said Section 4975, nor is the fiduciary (as defined in Section 3 of ERISA) of the Pension Benefit Plan or any employee benefit plan (as defined in Section 3 of ERISA) maintained by Seller Mountain acting in a manner that constitutes a breach of its fiduciary duty, as set forth in ERISA. Except as set forth in SCHEDULE 5.16, the Pension Benefit Plans have not been terminated, nor have contributions thereto been discontinued, nor have there been any "reportable events," as that term is defined in Section 4043 of ERISA, since the effective date of Section 4043 of ERISA. The Pension Benefit Plans have not incurred any "accumulated funding deficiency," as such term is defined in Section 302 of ERISA (whether or not waived), since the effective date of Section 302 of ERISA, or prior thereto, and all contributions required to be made have been made. Seller Mountain does not have anan existing defined benefit pension plan covering its employees. None of the Pension Benefit Plans identified on SCHEDULE 5.16 are multiemployer plans as defined in Section 3(37) of ERISA. All appropriate administrative actions and required compliance with appropriate administrative actions and required compliance with appropriate Internal Revenue Service and Department of Labor rules and regulations have been taken or are in process in a timely manner. No contributions pursuant to the Pension Benefit Plans have been made in such amounts as would violate Section 404 of the Code so as to disqualify the accompanying trust. Mountain has in force sufficient bonding for every fiduciary who is required to be bonded with respect to the Pension Benefit Plans pursuant to Section 412 of ERISA. There does not exist any pending or, to the best of the knowledge the Shareholders, threatened litigation against any fiduciary of any Pension Benefit Plan, nor has any bonding company been called on to defend any such fiduciary. A true and complete copy of each existing Plan has been furnished to DCRI along with the most recent favorable determination letter issued by the Internal Revenue Service with respect thereto and the two most recent annual reports (on form 5500 series) required to be filed with respect thereto.