Common use of Employee Benefit Plans and Other Compensation Arrangements Clause in Contracts

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a) of the Seller Schedules is a true and complete list of all Company Plans. Correct and complete copies of the following documents with respect to each Company Plan have been made available to Buyer, as applicable: (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; (ii) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan years; (iii) the most recent valuation report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; (v) the most recent summary plan description and subsequent summaries of material modifications; (vi) the most recent audited financial statements; and (vii) written summaries of all non-written Plans. (b) Except as set forth on Schedule 3.12(b) of the Seller Schedules: (i) Neither Seller has nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA and no Seller nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such plan; (ii) each of the Company Plans and any related trusts currently satisfy in all material respects, and for all prior periods have satisfied in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (iv) all of the Company Plans have been operated in compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of the Company Plans or applicable Law have been timely made; (v) Seller has no liability of any nature with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current Company Plans, none of which are overdue; (vi) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, will now or at any time in the future: (i) result in any payment becoming due to any director, officer, employee, former employee, independent contractor, consultant or agent of Seller from Seller under any Company Plan or otherwise; (ii) increase any benefits otherwise payable under any Company Plan; (iii) result in any acceleration of the time of payment or vesting of any such benefits; or (iv) give rise to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code; (vii) none of the Company Plans provide life, medical, dental, vision or other welfare benefits to Persons who are not current employees of Seller or their dependents or for periods longer than one month after termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA or any similar state Law; (viii) Seller can terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of termination); and (ix) each Company Plan which is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies in form and operation with the provisions of Code Section 409A and the regulations promulgated thereunder.

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a) of the Seller Schedules is a true and complete list of all Company Plans. Correct and complete copies of the following documents with respect to each Company Plan have been made available to Buyer, as applicable: (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; (ii) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan years; (iii) the most recent valuation report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; (v) the most recent summary plan description and subsequent summaries of material modifications; (vi) the most recent audited financial statements; and (vii) written summaries of all non-written Plans. (b) Except as set forth on Schedule 3.12(b4.9.2 or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (a) of the Seller Schedules: (i) Neither Seller Acquired Company has nor any ERISA Affiliate hasno Liability in respect of, at any time during the six (6) years preceding the date hereof, and has not sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with Liability in respect of, a “"multiemployer plan” " (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA ERISA, and no Seller nor any ERISA Affiliate has the Acquired Company does not have any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) of the Code), whether or not waived, with respect to any such plan; ; (iib) each of the Company Plans and any related trusts currently satisfy in all material respectssatisfy, and for all prior periods have satisfied satisfied, in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, includingand, as applicableto the Knowledge of Seller, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; ; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (ivc) all of the Company Plans have been operated in compliance in all material respects with their respective terms and all applicable Laws, and all contributions required under ; (d) the terms of the Acquired Company Plans or applicable Law have been timely made; (v) Seller has no liability material Liability of any nature (whether known or unknown and whether absolute, accrued, contingent or otherwise) with respect to any Company Plan other than for administrative costs, contributions, payments or benefits due in the ordinary course under the current terms of the Company Plans, none of which are overdue; ; (vie) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, hereby will now or at any time in the future: future (i) result in any payment becoming due to any manager, director, officer, employee, current or former employee, independent contractor, contractor or consultant or agent of Seller the Acquired Company from Seller the Acquired Company under any Company Plan or otherwise; Plan, except as expressly provided in this Agreement, (ii) increase any benefits otherwise payable under any Company Plan; , or (iii) result in any acceleration of the time of payment or vesting of any such benefits; or (ivf) give rise to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of other than the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code; (vii) severance arrangement disclosed in Schedule 4.9.2, none of the Company Plans provide life, medical, dental, vision or other welfare benefits coverage to Persons who are not current employees of Seller the Acquired Company or their dependents or for periods longer than one extending beyond the last day of the month after of termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA ERISA, Section 4980B of the Code, or any similar state or local Law; ; (viiig) Seller can terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of termination); and (ixi) each Company Plan which that is a “nonqualified deferred compensation "group health plan” within the meaning " as defined in Section 733(a)(1) of Code Section 409A(d)(1ERISA (A) complies is currently in form and operation compliance in all material respects with the provisions of Code Section 409A Patient Protection and the regulations promulgated thereunderAffordable Care Act, Pub.

Employee Benefit Plans and Other Compensation Arrangements. (a) 4.9.1 Set forth on Schedule 3.12(a) 4.9.1 is a list of each benefit, retirement, compensation, employment, consulting, incentive, bonus, performance award, phantom equity, stock or stock-based, stock option, change in control, retention, severance, vacation, paid time off (PTO), medical, vision, dental, disability, welfare, fringe benefit, severance pay, salary continuation, bonus, incentive, welfare, KiwiSaver, pension, profit sharing or deferred compensation plans, Contracts, programs, policies, funds or arrangements of any kind, in each case with respect to which any of the Acquired Companies currently is the sponsor or is obligated to make contributions under the plan terms, under which an Acquired Company has or would reasonably be expected to have any Liability or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any Liability in connection with an Acquired Company (collectively, the “Plans”). 4.9.2 With respect to each Plan, Seller Schedules is a true and complete list of all Company Plans. Correct has provided to Buyer accurate, current and complete copies of each of the following documents following: (a) where the Plan has been reduced to writing, the plan document together with all amendments; (b) where the Plan has not been reduced to writing, a written summary of all material plan terms; (c) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (d) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, employee handbooks and any other written communications (or a description of any oral communications) relating to any Plan; (e) actuarial valuations and reports (if any) related to any Plans with respect to the two most recently completed plan years; (f) the most recent nondiscrimination tests performed under the Code; and (g) copies of material notices, letters or other correspondence from Governmental Authorities with respect to each Plan. 4.9.3 With respect to each Plan, all contributions required to be paid by any Acquired Company Plan or any of its Affiliates have been made available timely paid to the applicable Plan. 4.9.4 Each Plan can be amended, terminated or otherwise discontinued after the Closing in accordance with its terms, subject to applicable Law and without material Liabilities to Buyer, an Acquired Company or any of their Affiliates other than ordinary administrative expenses typically incurred in a termination event, as applicable: (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; (ii) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan years; (iii) the most recent valuation report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; (v) the most recent summary plan description and subsequent summaries of material modifications; (vi) the most recent audited financial statements; and (vii) written summaries of all non-written Plans. (b) Except as otherwise set forth on Schedule 3.12(b) in the terms and provisions of the Seller Schedules: (i) Neither Seller has nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, sponsored, maintained, been liable under, terminated, participated in, been required to contribute tosuch Plans, or incurred withdrawal liability with respect of, a “multiemployer plan” within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA and no Seller nor any ERISA Affiliate as required by Law. No Acquired Company has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA commitment or obligation and Section 412(a) the Code)has not made any representations to any employee, officer, director, independent contractor or consultant, whether or not waivedlegally binding, with respect to adopt, amend, modify or terminate any such plan; (ii) each of the Company Plans and Plan or any related trusts currently satisfy in all material respectscollective bargaining agreement, and for all prior periods have satisfied in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (iv) all of the Company Plans have been operated in compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of the Company Plans or applicable Law have been timely made; (v) Seller has no liability of any nature with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current Company Plans, none of which are overdue; (vi) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated herebyby this Agreement or otherwise. 4.9.5 Except as required under applicable Law, will now no Plan provides post-termination or at retiree health benefits to any time in individual for any reason, and neither an Acquired Company nor any of its Affiliates has any Liability to provide post-termination or retiree health benefits to any individual or ever represented, promised or contracted to any individual that such individual would be provided with post-termination or retiree health benefits. 4.9.6 There has been no amendment to, or any announcement by Seller, an Acquired Company or any of their Affiliates relating to, any Plan or collective bargaining agreement that would increase the future: annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year (iother than on a de minimis basis or as required by applicable Law) result in any payment becoming due with respect to any director, officer, employee, former independent contractor or consultant, as applicable. None of Seller, an Acquired Company or any of their Affiliates has any commitment or obligation to any director, officer, employee, independent contractorcontractor or consultant to adopt, consultant amend, modify or agent of Seller from Seller under terminate any Company Plan or otherwiseany collective bargaining agreement. 4.9.7 Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (a) entitle any current or former director, officer, employee, independent contractor or consultant of an Acquired Company to severance pay or any other payment; (iib) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (c) limit or restrict the right of an Acquired Company to merge, amend or terminate any Plan; or (d) increase any benefits otherwise the amount payable under any Company Plan; (iii) or result in any acceleration of the time of payment or vesting of other material obligation pursuant to any such benefits; or (iv) give rise to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code; (vii) none of the Company Plans provide life, medical, dental, vision or other welfare benefits to Persons who are not current employees of Seller or their dependents or for periods longer than one month after termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA or any similar state Law; (viii) Seller can terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of termination); and (ix) each Company Plan which is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies in form and operation with the provisions of Code Section 409A and the regulations promulgated thereunderPlan.

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a4.9(a) of the Seller Schedules is a true and complete list of all Company Business Plans. Correct True and complete copies of the following documents with respect to each Company Business Plan have been made available to Buyer, as applicable: (ia) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; , (iib) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan three (3) years; , (iiic) the most recent valuation report, including any FAS 106 report; (ivd) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; or opinion letter, (ve) the most recent summary plan description and subsequent summaries of material modifications; , (vif) the most recent audited financial statements; , and (viig) written summaries of all non-written material terms of unwritten Business Plans. (b) . Except as set forth on Schedule 3.12(b) of the Seller Schedules:4.9(b): (ia) Neither the Company nor the Asset Seller has nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, has sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA ERISA, and no the Company nor the Asset Seller nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such plan; (iib) each of the Company Business Plans and any related trusts currently satisfy in all material respectssatisfy, and for all prior periods have satisfied satisfied, in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (ivc) all of the Company Business Plans have been operated in compliance in all material respects with their respective terms and all applicable Laws, and all contributions required under the terms of the Company Plans or applicable Law have been timely made; (vd) neither the Company nor the Asset Seller has no any liability of any nature (whether known or unknown and whether absolute, accrued, contingent or otherwise) with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current Company Plansterms of such Plan, none of which are overdue; (vie) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, hereby will now or at any time in the future: future (i) result in any payment becoming due to any director, officer, employee, former employee, independent contractor, contractor or consultant of the Company or agent of the Asset Seller from the Company or the Asset Seller under any Company Business Plan or otherwise; , (ii) increase any benefits otherwise payable under any Company Business Plan; , or (iii) result in any acceleration of the time of payment or vesting of any such benefits; or (iv) give rise to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code; (viif) none of the Company Business Plans provide life, medical, dental, vision or other welfare benefits coverage to Persons who are not current employees of the Company or the Asset Seller or their dependents or for periods longer than one extending beyond the last day of the month after of termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA ERISA, Section 4980B of the Code, or any similar state or local Law; (viiig) each of the Company nor the Asset Seller can has retained the right to unilaterally amend or terminate each Company Business Plan without further material liability to Seller (except for benefits accrued through the date of termination)fullest extent permitted by Law; and (ixh) each Company Business Plan which is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies of the Code (or which would be but for an exemption) has been maintained and administered in form and operation all material respects with the provisions of Code Section 409A of the Code, and no options or rights to purchase equity of the regulations promulgated thereunderCompany or the Asset Seller provide for (or provided for) a deferral of compensation (as contemplated under Section 1.409A-1(b)(i) of the Treasury Regulations).

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a) of the Seller Schedules 4.11 is a true and complete list of all Company OPHI’s Plans. Correct and complete copies of the following documents with respect to each Company Plan OPHI’s Plans have been made available to Buyerall Parties to this Agreement, as applicable: (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; (ii) the Forms 5500 annual reports 5500s and all schedules thereto filed for the three most recent plan two years; (iii) the most recent valuation report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code letter; (v) the most recent summary plan description and subsequent summaries of material modifications; (vi) the most recent audited financial statements; and (vii) written summaries of all non-written Plans.; (b) Except as set forth on Schedule 3.12(b) of the Seller Schedules: (i) Neither Seller has 4.11, neither OPHI nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA and no Seller neither OPHI nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such plan; (iic) each of the Company OPHI’s Plans and any related trusts currently satisfy in all material respects, and for all prior periods have satisfied in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iiid) neither Seller nor any employee All of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (iv) all of the Company OPHI’s Plans have been operated in compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of the Company OPHI’s Plans or applicable Law have been timely made; (ve) Seller OPHI has no liability of any nature (whether known or unknown and whether absolute, accrued, contingent or otherwise) with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current Company OPHI Plans, none of which are overdue; (vif) neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated herebyContemplated Transactions, will now or at any time in the future: future (i) result in any payment becoming due to any director, officer, employee, former employee, independent contractor, consultant or agent of Seller OPHI from Seller OPHI under any Company OPHI’s Plan or otherwise; (ii) increase any benefits otherwise payable under any Company OPHI’s Plan; (iii) result in any acceleration of the time of payment or vesting of any such benefits; or (iv) give rise to an obligation to pay any amount by Seller OPHI or Buyer any other Party hereto (or any Affiliate of Buyerany Party hereto) or any Company Plan OPHI Plans that would not be deductible by Seller OPHI or Buyer any other Party hereto (or Affiliates of Buyerany other Party hereto) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code; (viig) none None of the Company OPHI’s Plans provide life, medical, dental, vision or other welfare benefits to Persons who are not current employees of Seller OPHI or their dependents or for periods longer than one month after termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA or any similar state Law; (viiih) Seller OPHI can terminate each Company Plan OPHI’s Plans without further material liability to Seller OPHI (except for benefits accrued through the date of termination); and (ixi) each Company Plan OPHI’s Plans which is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies has been maintained and administered in form and operation a manner consistent with the provisions of avoiding adverse Tax consequences under Code Section 409A and the regulations promulgated thereunder.409A.

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(ain Section 4.9(a) of the Seller Schedules Disclosure Letter is a true and complete list of each material “employee benefit plan” (within the meaning of Section 3(3) of ERISA), including, without limitation multiemployer plans as defined in Title I or Title IV of ERISA (“Multiemployer Plans”), and all material stock purchase, stock option, severance, employment, collective bargaining, change-in-control, retention, stay-bonus, fringe benefit, bonus, incentive, deferred compensation, employee loan, welfare benefit and all other employee benefit plans, policies or other arrangements, whether or not subject to ERISA, including, without limitation, all “rabbi” trusts (or springing “rabbi” trusts) and all voluntary employee benefits associations, whether formal or informal, oral or written, under which any current or former employee, director or consultant of any Acquired Company has any present or future right to benefits and which are contributed to, sponsored by or maintained by any Acquired Company. All such plans, agreements, policies and arrangements shall be collectively referred to as the “Plans. Correct and complete copies of the following documents with .” With respect to each Company Plan Plan, Sellers have been made available to BuyerBuyer a current, as accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and, to the extent applicable: (iv) plans and any related trust documents, insurance contracts agreement or other funding arrangements and all amendments thereto; instrument, (ii) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan years; (iiiw) the most recent valuation report; determination or opinion letter, if applicable, (ivx) for the most recent IRS determination letter fiscal year, (I) the annual report on Form 5500, and (II) audited financial statements, (y) any summary plan description or summary of material modification, and (z) any other written communications (or description of any oral communications) by any of the three Acquired Companies to employees regarding matters not reflected in any summary plan description or summary of material modification concerning (I) retiree medical or life insurance benefits, (II) provision of any new benefits, (III) any increase in the level of benefits, or (IV) any other changes to any Plan unless such change would not materially increase the expense of maintaining the Plan above the level of expense incurred in respect thereof for the most recent annual nondiscrimination testing results for fiscal year ended prior to the date of this Agreement. Except as set forth in Section 4.9(b) of the Disclosure Letter: (a) none of the Plans is a Multiemployer Plan or a plan subject to Title IV of ERISA (a “Title IV Plan”), and none of the Acquired Companies nor any organization (excluding an Acquired Company) that is a member of a controlled group of organizations within the meaning of Sections 414(b), (c), (m) or (o) of the Code, Section 4001 of ERISA or, solely with reference to the Coal Industry Retiree Health Benefit Act of 1992, Section 52(a) of the Code (“Controlled Group”) with any Acquired Company has at any time sponsored or contributed to, or has or had any liability or obligation in respect of, any Title IV Plan, Multiemployer Plan or, with respect to any member of the Controlled Group, under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), that would result in any Loss to any Acquired Company; (b) each Company Plan of the Plans that is intended to meet the requirements of be tax-qualified under Section 401(a) of the Code ; (v) has received a favorable determination or opinion letter from the most recent summary plan description Internal Revenue Service as to its qualification and subsequent summaries of material modifications; (vi) satisfies the most recent audited financial statements; and (vii) written summaries of all non-written Plans. (b) Except as set forth on Schedule 3.12(b) of the Seller Schedules: (i) Neither Seller has nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA and no Seller nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any requirements for such plan; (ii) each of the Company Plans and any related trusts currently satisfy qualification in all material respects, and for all prior periods have satisfied in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (ivc) all of the Company Plans have been established and operated in compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of the Company Plans or applicable Law have been timely made; (vd) Seller has no liability of any nature with respect to any Plan, (i) there are no pending or, To Sellers’ Knowledge, threatened actions, suits or claims, including by or on behalf of any of the Plans, by any employee or beneficiary covered under any Plan or otherwise involving any Plan (other than routine claims for contributionsbenefits), payments (ii) To Sellers’ Knowledge, no facts or benefits due circumstances exist that could give rise to any such material actions, suits or claims, and (iii) no administrative investigation, audit or other administrative proceeding by the Department of Labor, Internal Revenue Service or any other governmental agency is pending, or, To Sellers’ Knowledge, threatened or in the ordinary course under the current Company Plans, none of which are overdueprogress; (vie) no amounts payable under the Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code; (f) except with respect to the Stock Options, the Warrants and the Transaction Bonuses, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, and disregarding any payments or benefits under any Plan that is intended to be qualified under Section 401(a) of the Code or any group health plan, will now or at any time in the future: (i) result in any severance, unemployment compensation, golden parachute or bonus payment becoming due to any director, officer, employee, former employee, independent contractor, consultant officer or agent any employee of Seller the Acquired Companies from Seller the Acquired Companies under any Company Plan or otherwise; , (ii) increase any benefits otherwise payable under any Company Plan; , (iii) result in any acceleration of the time of payment or vesting of any such benefits; or , (iv) give rise to an result in any funding (through a grantor trust or otherwise) of compensation or benefits under, or in any other material obligation to pay pursuant to, any amount by Seller Plan or Buyer otherwise, or (v) limit or restrict the right of any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of Acquired Companies to merge, amend or terminate any such amount to the excise Tax imposed under Section 4999 of the CodePlan; (viig) none of the Company Plans provide life, provides medical, dentalhealth or life insurance benefits to any retired Person, vision or any current employee of any of the Acquired Companies following such employee’s retirement or other welfare benefits to Persons who are not current employees of Seller or their dependents or for periods longer than one month after termination of employment, and no Acquired Company has incurred any current or projected liability in respect of such benefits, in either case except as required by Part 6 applicable Law (including Section 4980B of Subtitle B of Title I of ERISA or any similar state Lawthe Code); (viiih) Seller can terminate each no “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code) which is not eligible for an exemption has occurred with respect to any Plan; (i) To Sellers’ Knowledge, no event has occurred, and no condition exists, that (i) would subject any Acquired Company, by reason of such Acquired Company’s affiliation with any member (at any time) of its Controlled Group, to any Loss as a result of ERISA, the Code or other applicable Laws relating to any employee benefit plan maintained or contributed to at any time by such a Controlled Group member, or (ii) would subject any Acquired Company Plan without further material liability to Seller any liability, directly or indirectly, arising out of or relating to obligations to provide health benefits pursuant to the Coal Industry Retiree Health Benefit Act of 1992; (except for benefits accrued through j) To Sellers’ Knowledge, no event has occurred, and no condition exists, that would subject any Acquired Company to any excise tax, fine, lien or penalty imposed by ERISA, the date of termination)Code or other applicable Laws relating to any Plan; and (ixk) each Company As of the date of this Agreement there is no intent that any Plan which is a “nonqualified deferred compensation plan” be materially amended, suspended or terminated or otherwise modified to adversely change benefits (or the levels thereof) under any Plan at any time within the meaning 12 months immediately following the date of Code Section 409A(d)(1) complies in form and operation with this Agreement, except as may be required to reflect legal requirements or avoid adverse tax consequences to the provisions Acquired Companies or to any employees of Code Section 409A and the regulations promulgated thereunderAcquired Companies.

Employee Benefit Plans and Other Compensation Arrangements. (a) 3.7.1 Set forth on Schedule 3.12(a) in Section 3.7.1 of the Seller Schedules Disclosure Schedule is a true and complete list of all Company Plansall: (a) employment or similar Contracts, or a summary of any oral agreement relating to employment or other similar matters to which Seller is a party with respect to the Business or any Business employee, and (b) any employee benefit plan as defined in Section 3(b) of ERISA relating and applicable to the Business or its employees and with respect to which Seller currently is the sponsor or obligated to make contributions under the terms of such plan. Correct and complete copies of the following documents with respect to each Company Plan such plans have been made available to Buyer, as applicable: (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; (ii) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan years; (iii) the most recent valuation report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; (v) the most recent summary plan description and subsequent summaries of material modifications; (vi) the most recent audited financial statements; and (vii) written summaries of all non-written Plans. (b) Except 3.7.2 Each employee benefit plan as set forth on Schedule 3.12(b) of the Seller Schedules: (i) Neither Seller has nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to defined in Section 412 of the Code or Section 302 or Title IV of ERISA and no Seller nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(23(b) of ERISA relating and Section 412(a) applicable to the Code), whether Business or not waived, its employees and with respect to any which Seller currently is the sponsor or obligated to make contributions under the terms of such plan; (ii) each of the Company Plans plan and any related trusts currently satisfy in all material respects, and for all prior periods the three (3) year period ending on the date hereof have satisfied in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment;treatment or any material Liability for Buyer or any of its ERISA Affiliates. (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 3.7.3 All of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (iv) all of the Company Plans have been operated in compliance in all material respects with their respective terms and all applicable Laws, and all contributions required under the terms of the Company Plans or applicable Law have been timely made;. (v) 3.7.4 Seller has no liability of any nature Liability with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current Company Plans, none of which are overdue;. (vi) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, will now or at any time in the future: (i) result in any payment becoming due to any director, officer, employee, former employee, independent contractor, consultant or agent of Seller from Seller under any Company Plan or otherwise; (ii) increase any benefits otherwise payable under any Company Plan; (iii) result in any acceleration of the time of payment or vesting of any such benefits; or (iv) give rise to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code; (vii) none of the Company Plans provide life, medical, dental, vision or other welfare benefits to Persons who are not current employees of Seller or their dependents or for periods longer than one month after termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA or any similar state Law; (viii) Seller can terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of termination); and (ix) each Company 3.7.5 Each Plan which is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies has been maintained and administered and shall be maintained and administered in form and operation connection with the provisions of any payments due to Business employees in a manner consistent with avoiding adverse Tax consequences under Code Section 409A and 409A. 3.7.6 Except as set forth in Section 3.7.6 of the regulations promulgated thereunderDisclosure Schedule, neither any Plan nor Seller or any ERISA Affiliate has any Liability to provide any post-employment obligation to any Business employee, except to the extent required by applicable Law. 3.7.7 No Business employee is or was eligible to participate in any Plans established for the benefit of employees who perform or performed services outside the United States of America. 3.7.8 Neither Seller nor any ERISA Affiliate has ever maintained any Plan subject to Section 412 of the Code or Title IV of ERISA. At no time has Seller or any ERISA Affiliate been obligated to contribute to any “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA).

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a4.10(a) of the Seller Schedules is a true and complete list of all Company Plans. Correct and complete copies material employee benefit plans (as defined in Section 3(3) of the following documents ERISA), with respect to each Company Plan have been made available which Seller currently is the sponsor or is obligated to Buyer, as applicable: make contributions under the plan terms (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; (ii) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan years; (iii) the most recent valuation report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; (v) the most recent summary plan description and subsequent summaries of material modifications; (vi) the most recent audited financial statements; and (vii) written summaries of all non-written “Plans. (b) ”). Except as set forth on Schedule 3.12(b4.10(b): (a) none of the Seller Schedules: (i) Neither Seller has nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, Plans is a “multiemployer plan” within the meaning of Sections 3(37) (as defined in Title I or 4001(a)(3) Title IV of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA and no Seller nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such planERISA; (iib) each of the Company Plans that is intended to be tax-qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service as to its qualification and any related trusts currently satisfy is so qualified in all material respects, and for all prior periods have satisfied in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and except that no event, transaction or condition has occurred or exists that representation is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist made with respect to any Company Plan, or (ii) that is a fiduciary (as defined in formal qualification requirement with respect to which the remedial amendment period under Section 3(21401(b) of ERISA) the Code has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plansnot yet expired; (ivc) all of the Company Plans have been operated in compliance in all material respects with their respective terms and all applicable Laws, and all contributions and funding required under the terms of the Company Plans or applicable Law have been timely mademade for any period through the Closing; (vd) Seller has there are no liability pending or, to Seller’s knowledge, threatened claims by or on behalf of any nature with respect to of the Plans, by any employee or beneficiary covered under any Plan or otherwise involving any Plan (other than routine claims for contributions, payments or benefits due benefits) except for claims that are not reasonably likely to result in the ordinary course under the current Company Plans, none of which are overduea Material Adverse Effect; (vie) no material amounts payable under the Plans will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code; (f) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, disregarding any termination of employment which may occur on or after the Closing, will now or at any time in the future: (i) result in any material payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any director, officer, employee, former employee, independent contractor, consultant officer or agent any Employee of Seller from Seller under any Company Plan or otherwise; , (ii) materially increase any benefits otherwise payable under any Company Plan; , or (iii) result in any acceleration of the time of payment or vesting of any such benefitsbenefits to any material extent; or (iv) give rise to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code;and (viig) none of the Company Plans provide lifeprovides medical benefits to any retired Person, medical, dental, vision or any current Employee of Seller following such Employee’s retirement or other welfare benefits to Persons who are not current employees of Seller or their dependents or for periods longer than one month after termination of employment, except as required by Part 6 applicable Law (including Section 4980B of Subtitle B of Title I of ERISA or any similar state Law; (viii) Seller can terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of terminationCode); and (ix) each Company Plan which is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies in form and operation with the provisions of Code Section 409A and the regulations promulgated thereunder.

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a4.9(a) is a list of (i) all employee benefit plans (as defined in Section 3(3) of ERISA), (ii) all other employment, compensation, consulting, relocation, severance pay, termination pay, vacation, paid time off, fringe benefit, salary continuation, bonus, incentive, stock option, restricted stock, stock appreciation right, phantom equity, performance awards, stock related awards, change in control, welfare, retirement, pension, profit sharing or deferred compensation agreements, plans, policies, contracts, programs, funds or arrangements of any kind (including those which are maintained outside of the United States) and (iii) all other material employee benefit plans, contracts, programs, funds, or arrangements, whether written or unwritten, funded or unfunded, in each case covering one or more employees, former employees, directors, advisors, consultants or independent contractors of the Company and that is sponsored or maintained by the Company or any ERISA Affiliate or with respect to which the Company has or could have any liability (collectively, the “Plans”). (b) With respect to each Plan, Seller Schedules is a true and complete list of all Company Plans. Correct has Made Available to Buyer accurate, current and complete copies of each of the following documents with respect to each Company Plan have been made available to Buyer, as applicablefollowing: (i) plans and related trust documents, insurance contracts or other funding arrangements and the plan document together with all amendments thereto; (ii) the Forms 5500 annual reports where applicable, copies of any trust agreements, custodial agreements, insurance policies, administration agreements and all schedules thereto filed for the three most recent plan yearssimilar agreements, and investment management or investment advisory agreements; (iii) the most recent valuation report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements copies of Section 401(a) of the Code ; (v) the most recent summary plan description and subsequent any summaries of material modificationsmodifications thereto and/or benefits handbook relating to any Plan; (iv) in the case of any Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination or opinion letter from the Internal Revenue Service; (v) in the case of any Plan for which a Form 5500 is required to be filed, a copy of the two most recently filed Forms 5500, with schedules attached; and (vi) the most recent audited financial statements; and (vii) written summaries copies of all non-routine material written Planscorrespondence with the Internal Revenue Service or the U.S. Department of Labor relating to the Benefit Plan within the last two (2) years. (bc) Except as set forth on Schedule 3.12(b) of the Seller Schedules:4.9(c): (i) Neither Seller has neither the Company nor any ERISA Affiliate currently has, and at any no time during in the six (6) years preceding the date hereofpast has had, sponsored, maintained, been liable under, terminated, participated in, been required an obligation to contribute to, : (A) a pension plan that is subject to the minimum funding standards of Section 302 of ERISA or incurred withdrawal liability with respect of, Section 412 of the Code; (B) a defined benefit plan (as defined in Section 3(35) of ERISA); (C) a “multiemployer multiple employer plan” (within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code); (D) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (E) a “funded welfare plan” within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 419 of the Code Code; or (F) a “multiemployer plan” (as defined in Section 302 or Title IV of ERISA and no Seller nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(23(37) of ERISA and or Section 412(a414(f) of the Code), whether or not waived, with respect to any such plan; (ii) each of the Company Plans that is intended to be tax-qualified under Section 401(a) of the Code has received a favorable determination letter or opinion letter from the Internal Revenue Service as to its qualification and any related trusts currently satisfy is so qualified in all material respectsrespects (except that no representation is made with respect to any formal qualification requirement with respect to which the remedial amendment period under Section 401(b) of the Code has not yet expired) and each trust created thereunder has been determined by the IRS to be exempt from tax under the provisions of Section 501(a) of the Code and (B) to the Company’s Knowledge, and for all prior periods have satisfied in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for nothing has occurred that could reasonably be expected to cause the revocation of such plan determination letter from the Internal Revenue Service or trust or applicable to plans or trusts the unavailability of its type, includingreliance on such opinion letter from the Internal Revenue Service, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (iv) all of the Company Plans have been established and operated in compliance in all material respects with their respective terms and all applicable Laws, and all contributions contributions, premiums, or other payments required under the terms of the Company Plans or applicable Law Laws have been timely mademade or to the extent not required to be made or paid on or before the date of this Agreement, have been accrued in accordance with the normal accounting practices and are fully reflected in the Financial Statements; (iv) all contributions, transfers and payments in respect of any Plan, other than transfers incident to an incentive stock option plan within the meaning of Section 422 of the Code, have been or are fully deductible under the Code and no amounts payable under the Plans or as a result of the transactions contemplated by this Agreement (whether in cash or property or the vesting of property) will fail to be deductible for federal income tax purposes by virtue of Section 280G of the Code or could give rise to the payment of any amount under Section 4999 of the Code; (v) Seller has no liability of any nature with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current Company Plans, none of which are overdue; (vi) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, either alone or in combination with any other event, will now or at any time in the future: (iA) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any current or former director, officer, employee, former employee, independent contractor, employee or consultant of the Company (or agent dependents of Seller such Persons) from the Company or Seller under any Company Plan or otherwise; , (iiB) increase any benefits otherwise payable under any Plan to any current or former director, officer or any employee or consultant of the Company Plan; (iiior dependents of such Persons) from the Company or Seller under any Plan or otherwise, or (C) result in any acceleration of the time timing of payment or vesting of any such benefits; benefits to any extent or provide any additional rights or benefits (ivincluding funding of compensation or benefits through a trust or otherwise) give rise to an obligation to pay any amount by Seller current or Buyer former director, officer or any employee or consultant of the Company (or dependents of such Persons) from the Company or Seller under any Affiliate of Buyer) Plan or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Codeotherwise; (viivi) none of the Plans provides benefits, including, without limitation, death or medical benefits to any retired Person, or any current employee of the Company Plans provide life, medical, dental, vision following such employee’s retirement or other welfare benefits to Persons who are not current employees of Seller or their dependents or for periods longer than one month after termination of employment, except as required by applicable Law (including Section 4980B of the Code); (vii) there is no pending or, to the Company’s Knowledge, threatened action, suit or claims relating to a Plan or against the assets of any Plan (other than routine claims for benefits); and there is no pending, or, to the Company's Knowledge, threatened audit, inquiry, proceeding or examination by a Governmental Authority relating to any Plan (other than routine claims for benefits); (viii) each Plan that is a “nonqualified deferred compensation plan” (as defined for purposes of Section 409A(d)(1) of the Code) that is subject to the requirements of Section 409A of the Code and all applicable Internal Revenue Service guidance promulgated thereunder (“Section 409A”) (A) was operated in good faith compliance with Section 409A between January 1, 2005 and December 31, 2008 and (B) has complied in form and operation in all material respects with the requirements of Section 409A since January 1, 2009; (ix) no “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, has occurred with respect to any Plan that would reasonably be expected to result in any liability; (x) the Company has reserved all rights necessary to amend or terminate each of the Plans that are maintained and sponsored by the Company without the consent of any other Person; (xi) with respect to each group health plan benefiting any current or former employee of the Company or any ERISA Affiliates that is subject to Section 4980B of the Code, the Company and its ERISA Affiliates have complied with the continuation coverage requirements of Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA or any similar state LawERISA; (viiixii) Seller can terminate each Company no benefits under any Plan without further material liability to Seller are or during the six (except for benefits accrued through 6) years ending on the date hereof have been provided through a voluntary employees’ beneficiary association (within the meaning of terminationsubsection 501(c)(9) of the Code) or a supplemental unemployment benefit plan (within the meaning of Section 501(c)(17) of the Code); and (ixxiv) each Company Plan which with respect to any insurance policy providing funding for benefits under any Plan, to the Company’s Knowledge there is no liability of the Company, in the nature of a “nonqualified deferred compensation plan” within retroactive rate adjustment, loss sharing arrangement, or other actual or contingent liability, nor would there be any such liability if such insurance policy was terminated on the meaning of Code Section 409A(d)(1) complies in form and operation with the provisions of Code Section 409A and the regulations promulgated thereunderdate hereof.

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a4.9(i) of the Seller Schedules is a true and complete list of all Company Plans. Correct and complete copies employee benefit plans (as defined in Section 3(3) of the following documents ERISA), employment agreements, other severance pay, salary continuation, bonus, incentive, stock option, restricted stock, stock unit, retirement, profit sharing or deferred compensation plans, contracts, programs or arrangements with respect to each which the Company Plan have been made available currently is or, during the three-year period preceding the date hereof has been, the sponsor, a party or obligated to Buyer, make contributions or otherwise incur liability (the "Plans"). In addition: (a) none of the Plans is a multiemployer plan (as applicable: defined in ERISA); (ib) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; (ii) of the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan years; (iii) the most recent valuation report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan Plans that are intended to meet the requirements of be tax-qualified under Section 401(a) of the Code ; (v) are so qualified in all material respects, except that no representation is made with respect to any formal qualification requirement with respect to which the most recent summary plan description and subsequent summaries of material modifications; (vi) the most recent audited financial statements; and (vii) written summaries of all non-written Plans. (b) Except as set forth on Schedule 3.12(bremedial amendment period under Section 401(b) of the Seller Schedules:Code has not yet expired; (ic) Neither Seller has nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA and no Seller nor any ERISA Affiliate has any accumulated funding deficiency reportable event (within the meaning of Section 302(a)(24043 of ERISA) of ERISA and Section 412(a) the Code), whether or not waived, has occurred with respect to any Plan, excluding any such planevents for which the notice requirements have been waived under applicable Law; (ii) each of the Company Plans and any related trusts currently satisfy in all material respects, and for all prior periods have satisfied in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (ivd) all of the Company Plans have been operated in substantial compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of from the Company Plans required by Law or applicable Law contract to any such Plan have been timely made; (ve) Seller has no liability of any nature with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current Company Plans, none of which the Plans provide medical benefits to Persons who are overduenot employees of the Company, or their dependents, except as required by applicable Law (including Section 4980B of the Code); (vif) neither the execution and delivery Company does not maintain any Plan under which it would be obligated to pay benefits or under which the amount of this Agreement nor any such payment would be increased or the time of either the vesting of such benefit or the payment thereof would be accelerated because of the consummation of the transactions contemplated by this Agreement either alone or in combination with another event; (g) Except as set forth on Schedule 2.2.(b), which Schedule sets forth the transaction bonuses to be paid in connection with the transactions contemplated hereby, will now no employee of the Company is entitled to severance pay, a change of control payment or at any time other payment as a result of the transaction contemplated hereby; (h) The Company has complied in all material respects with the future: continuation health coverage requirements of Section (Section)4980B of the Code and Section 601 through 608 of ERISA; (i) result in any payment becoming due to any directorThe Company is not obligated, officer, employee, former employee, independent contractor, consultant or agent of Seller from Seller under any Company Plan contingently or otherwise; (ii) increase any benefits otherwise payable under any Company Plan; (iii) result in any acceleration of the time of payment or vesting of any such benefits; or (iv) give rise to an obligation , to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G including the payment of the transaction bonuses set forth on Schedule 2.2(b) and the Option Spreads) which would be treated as a "parachute payment" as defined in Code and that would subject the recipient of any such amount Section 280G(b) (determined without regard to the excise Tax imposed under Code Section 4999 of the Code280G(b)(2)(A)(ii)); (viij) none There are no actions, suits, written notice of investigations or claims (other than routine claims for benefits) pending, or, To Sellers' Knowledge, threatened involving any Plan or the assets thereof and the Company has not received any written notice of any investigation by any governmental authority with respect to any Plan or the assets thereof; (k) With respect to each Plan, no "prohibited transaction" has occurred with respect to the Company or any of its employees as defined in Code Section 4975 or ERISA Section 406; (l) There are no Plans maintained by the Company subject to the requirements of Code Section 412 or Section 302 of ERISA; (m) The Company has not issued any written undertaking, or otherwise generally notified current or former employees of the Company of any intent or commitment, to create or implement any additional Plans provide life, medical, dental, vision for the benefit of any current or other welfare benefits to Persons who are not current former employees of Seller the Company or their dependents to materially amend, modify or for periods longer than one month after termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA or terminate any similar state Law; (viiiexisting Plan. Set forth on Schedule 4.9(ii) Seller can terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of termination); and (ix) each Company Plan which is a “nonqualified deferred list of all other compensation plan” within arrangements providing for annual payments in excess of, or provision of benefits valued at more than $100,000. The Company has performed all obligations (including payment) required to be performed by it in connection with such arrangements except where the meaning of Code Section 409A(d)(1) complies in form and operation with the provisions of Code Section 409A and the regulations promulgated thereunderfailure so to perform would not have a Material Adverse Effect.

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a4.9(a) is a list of (i) all material employee benefit plans (as defined in Section 3(3) of ERISA) of the Seller Schedules is a true Company and complete list (ii) all other severance pay, salary continuation, bonus, incentive, stock option, welfare, retirement, pension, profit sharing or deferred compensation plans, contracts, programs, funds or arrangements of all Company Plans. Correct and complete copies of any kind related to the following documents Company, in each case with respect to each which the Company Plan have been made available or Seller currently is the sponsor or is obligated to Buyermake contributions under the plan terms (collectively, as applicable: (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; (ii) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan years; (iii) the most recent valuation report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; (v) the most recent summary plan description and subsequent summaries of material modifications; (vi) the most recent audited financial statements; and (vii) written summaries of all non-written “Plans. (b) ”). Except as set forth on Schedule 3.12(b) of the Seller Schedules:4.9(b): (i) Neither Seller the Company has nor any ERISA Affiliate has, at any time during not been the six (6) years preceding the date hereof, sponsored, maintained, been liable under, terminated, participated in, been required sponsor of or obligated to contribute to, or incurred withdrawal liability with respect of, make contributions under a “multiemployer plan” within the meaning of Sections 3(37) (as defined in Title I or 4001(a)(3) Title IV of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA and no Seller nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such planERISA; (ii) each of the Company Plans that is intended to be tax-qualified under Section 401(a) of the Code has received a favorable determination letter or opinion letter from the Internal Revenue Service as to its qualification and any related trusts currently satisfy is so qualified in all material respects, and for all prior periods have satisfied in all material respects, in form and operation, all requirements for except that no representation is made with respect to any Tax-favored treatment intended for such plan or trust or applicable formal qualification requirement with respect to plans or trusts of its type, including, as applicable, requirements which the remedial amendment period under Sections 105, 106, 125, 401(a), 401(kSection 401(b) and 501 of the Code, and no event, transaction or condition Code has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatmentnot yet expired; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (iv) all of the Company Plans have been operated in compliance in all material respects with their respective terms and all applicable Laws, and all contributions required under the terms of the Company Plans or applicable Law Laws have been timely made; (viv) Seller has no liability of any nature with respect to any Plan other than for contributions, payments or benefits due in the ordinary course amounts payable under the current Company Plans, none Plans will fail to be deductible for federal income tax purposes by virtue of which are overdueSection 280G of the Code; (viv) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, disregarding any termination of employment which may occur on or after the Closing, will now or at any time in the future: (ix) result in any material payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any director, officer, employee, former employee, independent contractor, consultant officer or agent any employee of Seller the Company from Seller the Company under any Company Plan or otherwise; , (iiy) materially increase any benefits otherwise payable under any Company Plan; , or (iiiz) result in any acceleration of the time timing of payment or vesting of any such benefits; or (iv) give rise benefits to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Codematerial extent; (viivi) none of the Plans provides medical benefits to any retired Person, or any current employee of the Company Plans provide life, medical, dental, vision following such employee’s retirement or other welfare benefits to Persons who are not current employees of Seller or their dependents or for periods longer than one month after termination of employment, except as required by Part 6 applicable Law (including Section 4980B of Subtitle B of Title I of ERISA or any similar state Law; (viii) Seller can terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of terminationCode); and (ixvii) each the Company does not maintain any Plan under which it would be obligated to pay benefits solely because of the consummation of the transactions contemplated by this Agreement, disregarding any termination of employment which may occur on or after the Closing. (viii) No “prohibited transaction”, as such term is a “nonqualified deferred compensation plan” within defined in Section 406 of ERISA or Section 4975 of the meaning Code, has occurred with respect to any of Code Section 409A(d)(1) complies in form and operation with the provisions of Code Section 409A and the regulations promulgated thereunderPlans.

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a) of Except as otherwise provided in this Agreement or required by applicable Law, from and after the Seller Schedules is a true Closing Date, SMI shall retain Liability for any and complete list of all Company Plans. Correct employment and complete copies of the following documents with respect employee-benefit related Liabilities, obligations, claims or losses that relate to each Company Plan have been made available to Buyer, as applicable: (i) plans any Covered Employee (or his or her dependent or beneficiary) and related trust documentsthat arise as a result of an event or events that occurred prior to the Closing Date, insurance contracts or other funding arrangements and all amendments thereto; (ii) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan years; (iii) the most recent valuation report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each any Company Plan intended to meet the requirements of Section 401(a) of the Code ; (v) the most recent summary plan description and subsequent summaries of material modifications; (vi) the most recent audited financial statements; and (vii) written summaries of all non-written Plans. (b) Plan. Except as set forth on Schedule 3.12(b) of the Seller Schedules3.13: (ia) Neither Seller has neither the Company nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, has sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” within the meaning of Sections §§3(37) or 4001(a)(3) of ERISA) or a plan subject to Section §412 of the Code or Section §302 or Title IV of ERISA ERISA, and no Seller neither the Company nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section §302(a)(2) of ERISA and Section §412(a) the Code), whether or not waived, with respect to any such plan; (iib) neither the Company nor any ERISA Affiliate has any obligation under any Company Plan or otherwise to provide medical, health, life insurance or other welfare-type benefits upon retirement or termination of employment (except for limited continued medical benefit coverage required to be provided under Section 4980B of the Code or as required under applicable state Law, in each case, for which the covered individual pays the full cost of coverage); (c) each of the Company Plans and any related trusts currently satisfy in all material respects, and for all prior periods have satisfied in all material respects, in which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter form and operation, all requirements for any Tax-favored treatment intended for the Internal Revenue Service that such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements is qualified under Sections 105, 106, 125, Section 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 is entitled to rely upon an opinion or advisory letter issued to the sponsor of ERISA) for which a statutory an Internal Revenue Service approve M&P or administrative exemption does not exist with respect volume submitter plan document, and, to any the knowledge of Seller and company, no event has occurred that could reasonably be expected to negatively affect the qualified status of such Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (ivd) all of the Company Plans have been operated in compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of the Company Plans no Seller or applicable Law have been timely made; (v) Seller has no liability of any nature with respect Subsidiary is a party to any Plan other than for contributionscontract, payments agreement or benefits due in the ordinary course under the current Company Plans, none of which are overdue; (vi) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, will now or at any time in the future: (i) result in any payment becoming due to any director, officer, employee, former employee, independent contractor, consultant or agent of Seller from Seller under any Company Plan or otherwise; (ii) increase any benefits otherwise payable under any Company Plan; (iii) result in any acceleration of the time of payment or vesting of any such benefits; or (iv) give rise to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan arrangement that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code; (vii) none of the Company Plans provide life, medical, dental, vision or other welfare benefits to Persons who are not current employees of Seller or their dependents or for periods longer than one month after termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA or any similar state Law; (viii) Seller can terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of termination); and (ix) each Company Plan which is a “nonqualified deferred compensation plan” within the meaning of Code (as such term is defined in Section 409A(d)(1) complies in form of the Code) and operation that applies to any Covered Employee; and (e) no Seller, with respect to the provisions ER Business, Subsidiary nor any ERISA Affiliate has any obligation to gross-up, reimburse or indemnify any individual with respect to any Taxes, including those imposed pursuant to Sections 409A or 4999 of Code Section 409A and the regulations promulgated thereunderCode.

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a4.9(a) of the Seller Schedules is a true and complete list of all Company Plans. Correct True and complete copies of the following documents with respect to each Company Plan have been made available to Buyer, as applicable: (ia) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; , (iib) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan three (3) years; , (iiic) the most recent valuation report, including any FAS 106 report; (ivd) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; or opinion letter, (ve) the most recent summary plan description and subsequent summaries of material modifications; , (vif) the most recent audited financial statements; , and (viig) written summaries of all non-written material terms of unwritten Company Plans. (b) . Except as set forth on Schedule 3.12(b) of the Seller Schedules:4.9(b): (ia) Neither Seller has neither the Company nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, has sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA ERISA, and no Seller neither the Company nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such plan; (iib) each of the Company Plans and any related trusts currently satisfy in all material respectssatisfy, and for all prior periods have satisfied satisfied, in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (ivc) all of the Company Plans have been operated in compliance in all material respects with their respective terms and all applicable Laws, and all contributions required under the terms of the Company Plans or applicable Law have been timely made; (vd) Seller has no the Company does not have any liability of any nature (whether known or unknown and whether absolute, accrued, contingent or otherwise) with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current terms of the Company Plans, none of which are overdue; (vie) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, hereby will now or at any time in the future: future (i) result in any payment becoming due to any director, officer, employee, former employee, independent contractor, contractor or consultant or agent of Seller the Company from Seller the Company under any Company Plan or otherwise; , (ii) increase any benefits otherwise payable under any Company Plan; , or (iii) result in any acceleration of the time of payment or vesting of any such benefits; or (iv) give rise to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code; (viif) none of the Company Plans provide life, medical, dental, vision or other welfare benefits coverage to Persons who are not current employees of Seller the Company or their dependents or for periods longer than one extending beyond the last day of the month after of termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA ERISA, Section 4980B of the Code, or any similar state or local Law; (viiig) Seller can the Company has retained the right to unilaterally amend or terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of termination)fullest extent permitted by Law; and (ixh) each Company Plan which is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies of the Code (or which would be but for an exemption) has been maintained and administered in form and operation all material respects with the provisions of Code Section 409A of the Code, and no options or rights to purchase equity of the regulations promulgated thereunderCompany provide for (or provided for) a deferral of compensation (as contemplated under Section 1.409A-1(b)(i) of the Treasury Regulations).

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a4.9(a) of the Seller Schedules is a true and complete list of all Company Acquired Companies Plans. Correct and complete copies of the following documents with respect to each Company Acquired Companies Plan have been made available to BuyerPurchasers, as applicable: (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; , (ii) the Forms 5500 annual reports 5500s and all schedules thereto filed for the three most recent plan two years; , (iii) the most recent valuation report; , (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; letter, (v) the most recent summary plan description and subsequent summaries of material modifications; , (vi) the most recent audited financial statements; , and (vii) written summaries of all non-written Plans. (b) . Except as set forth on Schedule 3.12(b) of the Seller Schedules:4.9(b): (ia) Neither Seller has no Acquired Companies nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “"multiemployer plan” " within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA and no Seller Acquired Companies nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such plan; (iib) each of the Company Acquired Companies Plans and any related trusts currently satisfy in all material respects, and for all prior periods have satisfied in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (ivc) all of the Company Acquired Companies Plans have been operated in compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of the Company Acquired Companies Plans or applicable Law have been timely made; (vd) Seller has the Acquired Companies have no liability of any nature (whether known or unknown and whether absolute, accrued, contingent or otherwise) with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current Company Acquired Companies Plans, none of which are overdue; (vie) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, will now or at any time in the future: future (i) result in any payment becoming due to any director, officer, employee, former employee, independent contractor, consultant or agent of Seller any Acquired Companies from Seller the Acquired Companies under any Company Acquired Companies Plan or otherwise; , (ii) increase any benefits otherwise payable under any Company Acquired Companies Plan; , (iii) result in any acceleration of the time of payment or vesting of any such benefits; , or (iv) give rise to an obligation to pay any amount by Seller any of the Acquired Companies or Buyer Purchasers (or any Affiliate of BuyerPurchasers) or any Company Acquired Companies Plan that would not be deductible by Seller any of the Acquired Companies or Buyer Purchasers (or Affiliates of BuyerPurchasers) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code; (viif) none of the Company Acquired Companies Plans provide life, medical, dental, vision or other welfare benefits to Persons who are not current employees of Seller an Acquired Companies or their dependents or for periods longer than one month after termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA or any similar state Law; (viiig) Seller the Acquired Companies can terminate each Company Acquired Companies Plan without further material liability to Seller the Acquired Companies (except for benefits accrued through the date of termination); and (ixh) each Company Acquired Companies Plan which is a “"nonqualified deferred compensation plan” " within the meaning of Code Section 409A(d)(1) complies has been maintained and administered in form and operation a manner consistent with the provisions of avoiding adverse Tax consequences under Code Section 409A and the regulations promulgated thereunder.409A.

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a4.9(a) of the Seller Schedules is a true and complete list of all Company Plans. Correct True and complete copies of the following documents with respect to each Company Plan have been made available to Buyer, as applicable: (ia) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; , (iib) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan three (3) years; , (iiic) the most recent valuation report; , including any FAS 106 report; (ivd) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; or opinion letter, (ve) the most recent summary plan description and subsequent summaries of material modifications; , (vif) the most recent audited financial statements; , and (viig) written summaries of all non-written material terms of unwritten Company Plans. (b) . Except as set forth on Schedule 3.12(b) of the Seller Schedules:4.9(b): (ia) Neither Seller has neither the Company nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, has sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA ERISA, and no Seller neither the Company nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such plan;plan; (iib) each of the Company Plans and any related trusts currently satisfy in all material respectssatisfy, and for all prior periods have satisfied satisfied, in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment;treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (ivc) all of the Company Plans have been operated in compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of applicable Laws; (d) the Company Plans or applicable Law does not have been timely made; (v) Seller has no any liability of any nature (whether known or unknown and whether absolute, accrued, contingent or otherwise) with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current terms of the Company Plans, none of which are overdue;overdue; (vie) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, hereby will now or at any time in the future: future (i) result in any payment becoming due to any director, officer, employee, former employee, independent contractor, contractor or consultant or agent of Seller the Company from Seller the Company under any Company Plan or otherwise; , (ii) increase any benefits otherwise payable under any Company Plan; , or (iii) result in any acceleration of the time of payment or vesting of any such benefits; or (iv) give rise to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code;benefits; (viif) none of the Company Plans provide life, medical, dental, vision or other welfare benefits coverage to Persons who are not current employees of Seller the Company or their dependents or for periods longer than one extending beyond the last day of the month after of termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA ERISA, Section 4980B of the Code, or any similar state Law;or local Law; (viiig) Seller can the Company has retained the right to unilaterally amend or terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of termination); fullest extent permitted by Law; and (ixh) each Company Plan which is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies of the Code (or which would be but for an exemption) has been maintained and administered in form and operation all material respects with the provisions of Code Section 409A of the Code, and no options or rights to purchase equity of the regulations promulgated thereunderCompany provide for (or provided for) a deferral of compensation (as contemplated under Section 1.409A-1(b)(i) of the Treasury Regulations).

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a4.9(a) of the Seller Schedules Company Disclosure Schedule is a true and complete list of all current Acquired Company Plans. Correct and complete copies of the following documents with respect to each such Acquired Company Plan have been made available to BuyerParent, as applicable: (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; , (ii) the Forms 5500 annual reports 5500s and all schedules thereto filed for the three most recent plan two years; , (iii) the most recent valuation report; , (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; letter, (v) the most recent summary plan description and subsequent summaries of material modifications; , (vi) the most recent audited financial statements; , and (vii) written summaries of all non-written Plans. (b) . Except as set forth on Schedule 3.12(b4.9(b) of the Seller SchedulesCompany Disclosure Schedule: (ia) Neither Seller has neither any Acquired Company nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, has sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA and no Seller Acquired Company nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such plan and there is currently no active filing with the Pension Benefit Guaranty Corporation (and no proceeding has been commenced by the Pension Benefit Guaranty Corporation) to terminate any such plan; (iib) each of the Acquired Company Plans and any related trusts currently satisfy in all material respects, and for all prior periods have satisfied in all material respects, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (ivc) all of the Acquired Company Plans have been operated in compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of the Acquired Company Plans or applicable Law have been timely made; (vd) Seller has except with regard to the funding of the Retirement Plan of Eagle Family Foods, Inc. for Bargaining Unit Employees and self insured obligations, the Acquired Companies have no material liability of any nature (whether known or unknown and whether absolute, accrued, contingent or otherwise) with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current Acquired Company PlansPlans or administration thereof, none of which are overdueoverdue under applicable Law; (vie) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, will now or at any time in the future: future (i) result in any payment becoming due to any director, officer, employee, former employee, independent contractor, consultant or agent of Seller a Acquired Company from Seller the Acquired Companies under any Acquired Company Plan or otherwise; , (ii) increase any benefits otherwise payable under any Acquired Company Plan; , (iii) result in any acceleration of the time of payment or vesting of any such benefits; , or (iv) give rise to an obligation to pay any amount by Seller any of the Acquired Companies or Buyer Parent (or any Affiliate of BuyerParent) or any Acquired Company Plan that would not be deductible by Seller any of the Acquired Companies or Buyer Parent (or Affiliates of BuyerParent) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code;; and (viif) none of the Acquired Company Plans provide life, medical, dental, vision or other welfare benefits to Persons who are not current employees of Seller an Acquired Company or their dependents or for periods longer than one month after termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA or any similar state Law; (viii) Seller can terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of termination); and (ix) each Company Plan which is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies in form and operation with the provisions of Code Section 409A and the regulations promulgated thereunder.

Employee Benefit Plans and Other Compensation Arrangements. Set forth in Section 4.9(a) of the Disclosure Letter is a list of all material employee benefit plans (as defined in Section 3(3) of ERISA), with respect to which any of the Acquired Companies currently is the sponsor or is obligated to make contributions under the plan terms (the “Plans”). With respect to the Plans: {P02534_X101.HTM;8} (a) Set forth on Schedule 3.12(a) none of the Seller Schedules Plans is a true and complete list of all Company Plans. Correct and complete copies of the following documents with respect to each Company Plan have been made available to Buyer, as applicable: (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; (ii) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan years; (iii) the most recent valuation report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; (v) the most recent summary plan description and subsequent summaries of material modifications; (vi) the most recent audited financial statements; and (vii) written summaries of all non-written Plans. (b) Except as set forth on Schedule 3.12(b) of the Seller Schedules: (i) Neither Seller has nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” within the meaning of Sections 3(37) (as defined in Title I or 4001(a)(3) Title IV of ERISA) or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA and no Seller nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such planERISA; (iib) each of the Company Plans that is intended to be tax-qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service as to its qualification and any related trusts currently satisfy is so qualified in all material respects, and for all prior periods have satisfied in all material respects, in form and operation, all requirements for except that no representation is made with respect to any Tax-favored treatment intended for such plan or trust or applicable formal qualification requirement with respect to plans or trusts of its type, including, as applicable, requirements which the remedial amendment period under Sections 105, 106, 125, 401(a), 401(kSection 401(b) and 501 of the Code, and no event, transaction or condition Code has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatmentnot yet expired; (iiic) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), there has entered into any been no “prohibited transaction” (as that term is defined in Section 4975 of the Code or Section 406 of ERISA (each as modified by Section 408 of ERISA) for which within the last five years and, within the last five years, no Plan has been terminated under either a statutory distress or administrative exemption does not exist standard termination as provided in Title IV of ERISA, nor has any notice of intent to terminate any Plan been filed with respect the Pension Benefit Guaranty Corporation (“PBGC”), nor has the PBGC issued any written notice of intent to terminate any Company Plan, or ; (iid) that no Plan has incurred any “accumulated funding deficiency” as such term is a fiduciary (as defined in Section 3(21412 of the Code and Section 302 of ERISA (whether or not waived) within the last five years; (e) neither the Company nor any ERISA Affiliate has or will have any liability (contingent or otherwise) to or in connection with any “multiemployer plan” within the meaning of Section 3(37) of ERISA) has , or any liability for breach other employee benefit plan subject to Title IV of fiduciary duty in connection with the administration or investment of the assets of the Company PlansERISA; (ivf) all of the Company Plans have been operated in compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of the Company Plans or applicable Law have been timely made, including, without limitation, each annual report (if any) required for each applicable Plan has been timely filed (including extensions for purposes of establishing timeliness); (vg) Seller has there are no liability pending or threatened claims against any of the Plans by any nature employee or beneficiary covered under any Plan or otherwise involving any Plan (other than routine claims for benefits); (h) none of the Acquired Companies was obligated to make any payments within the immediately preceding twelve (12) month period hereof, nor is any Acquired Company a party to any Contract, including the Plans, covering any current or former employee or consultant of the Acquired Companies that require it to make or give rise to any payments in connection with the transactions contemplated hereby (disregarding any termination of employment occurring on or after the Closing) that are not fully deductible under Section 280G of the Code; (i) except with respect to any Plan other than for contributionsthe Stock Options and the Warrants, payments or benefits due in the ordinary course under the current Company Plans, none of which are overdue; (vi) neither the execution and delivery of this Agreement nor the consummation of the {P02534_X101.HTM;8} transactions contemplated hereby, will now disregarding any termination of employment which may occur on or at any time in after the futureClosing, will: (i) result in any material payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any director, officer, employee, former employee, independent contractor, consultant officer or agent any employee of Seller the Acquired Companies from Seller the Acquired Companies under any Company Plan or otherwise; (ii) materially increase any benefits otherwise payable under any Company Plan; or (iii) result in any acceleration of the time of payment or vesting of any such benefits; or (iv) give rise benefits to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Codematerial extent; (viij) none of the Company Plans provides or is obligated to provide lifemedical or life insurance coverage to any retired Person, medical, dental, vision or any current employee of any of the Acquired Companies following such employee’s retirement or other welfare benefits to Persons who are not current employees of Seller or their dependents or for periods longer than one month after termination of employment, except as required by Part 6 applicable Law (including Section 4980B of Subtitle B of Title I of ERISA or any similar state Lawthe Code); (viiik) Seller can none of the Acquired Companies maintains any Plan under which it would be obligated to pay benefits solely because of the consummation of the transactions contemplated by this Agreement, disregarding any termination of employment which may occur on or after the Closing; (l) none of the Acquired Companies have classified any individual as an “independent contractor” or of similar status who, according to a plan or applicable Law, should have been classified as an employee; (m) the Acquired Companies have no liability, actual or contingent, with respect to any employee who is improperly excluded from participating in any Plan; (n) except as otherwise reflected in the Plan documents (including any summary plan descriptions), or as required by applicable Law, neither of the Acquired Companies has promised or agreed to limit its authority to amend or terminate each Company Plan without further material liability to Seller (except for benefits accrued through any of the date of termination)Plans; and (ixo) each Company Plan which is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies in form and operation with the provisions of Code plan subject to Section 409A and of the regulations promulgated thereunderCode that is maintained by any of the Acquired Companies has been administered in all material respects in a manner intended to avoid adverse tax consequences under Section 409A of the Code.

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(ain Exhibit 4.18(a) of the Seller Schedules is a true and complete list of all Company Northstar Plans. Correct True and complete copies of the following documents with respect to each Company Northstar Plan have been made available provided to Buyerthe Company, as applicable: (i) the plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; , (ii) the Forms 5500 annual reports 5500s and all schedules thereto filed for the three most recent plan two (2) years; , (iii) the most recent valuation report, including any FAS 106 report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; or opinion letter, (v) the most recent summary plan description and subsequent summaries of material modifications; , (vi) the most recent audited financial statements; , and (vii) written summaries of all non-written material terms of unwritten Northstar Plans. (b) . Except as set forth on Schedule 3.12(b) of the Seller Schedules:in Exhibit 4.18(b): (ia) Neither Seller has neither Northstar nor any Northstar Subsidiary or ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, has sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) ERISA or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA ERISA, and no Seller neither Northstar nor any Northstar Subsidiary or ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such plan; (iib) each of the Company Northstar Plans and any related trusts currently satisfy in all material respectssatisfy, and for all prior periods have satisfied in all material respectssatisfied, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, including, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code), has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (ivc) all of the Company Northstar Plans have been operated in compliance in all material respects with their respective terms and all Laws, and all contributions required under the terms of the Company Plans or applicable Law have been timely madelaws; (vd) Seller neither Northstar nor any Northstar Subsidiary has no liability of any nature (whether known or unknown and whether absolute, accrued, contingent or otherwise) with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current Company Northstar Plans, none of which are overdue; (vie) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, will now or at any time in the future: future (i) result in any payment becoming due to any director, officer, employee, former employee, independent contractor, contractor or consultant of Northstar or agent of Seller any Northstar Subsidiary from Seller Northstar or any Northstar Subsidiary under any Company Northstar Plan or otherwise; , (ii) increase any benefits otherwise payable under any Company Northstar Plan; , or (iii) result in any acceleration of the time of payment or vesting of any such benefits; or (iv) give rise to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the Code; (viif) none of the Company Northstar Plans provide life, medical, dental, vision or other welfare benefits coverages to Persons persons who are not current employees of Seller Northstar or any Northstar Subsidiary or their dependents or for periods longer than one extending beyond the last day of the month after of termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA or any similar state Lawlaw; (viiig) Seller can Northstar and each Northstar Subsidiary have retained the right to unilaterally amend or terminate each Company Northstar Plan without further material liability to Seller (except for benefits accrued through the date of termination)fullest extent permitted by law; and (ixh) each Company Northstar Plan which is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies of the Code (or which would be but for an exemption) has been maintained and administered in form and operation a manner consistent with the provisions of Code avoiding adverse tax consequences under Section 409A of the Code, and the regulations promulgated thereunderno options or rights to purchase one or more units of capital stock of Northstar or any Northstar Subsidiary provide for (or provided for) a deferral of compensation (as contemplated under Treas. Reg. Section 1.409A-1(b)(i)).

Employee Benefit Plans and Other Compensation Arrangements. (a) Set forth on Schedule 3.12(a3.7(a) of the Seller Schedules is a true and complete list of all Company Seller Plans. Correct True and complete copies of the following documents with respect to each Company Seller Plan have been made available to Buyer, as applicable: (i) plans and related trust documents, insurance contracts or other funding arrangements and all amendments thereto; , (ii) the Forms 5500 annual reports and all schedules thereto filed for the three most recent plan three (3) years; , (iii) the most recent valuation report, including any FAS 106 report; (iv) the most recent IRS determination letter and the three most recent annual nondiscrimination testing results for each Company Plan intended to meet the requirements of Section 401(a) of the Code ; or opinion letter, (v) the most recent summary plan description and subsequent summaries of material modifications; , (vi) the most recent audited financial statements; , and (vii) written summaries of all non-written material terms of unwritten Seller Plans. (b) . Except as set forth on Schedule 3.12(b) of the Seller Schedules:3.7(b): (i) Neither neither Seller has nor any ERISA Affiliate has, at any time during the six (6) years preceding the date hereof, has sponsored, maintained, been liable under, terminated, participated in, been required to contribute to, or incurred withdrawal liability with respect of, a “multiemployer plan” within the meaning of Sections 3(37) or 4001(a)(3) of ERISA) ERISA or a plan subject to Section 412 of the Code or Section 302 or Title IV of ERISA ERISA, and no neither Seller nor any ERISA Affiliate has any accumulated funding deficiency (within the meaning of Section 302(a)(2) of ERISA and Section 412(a) the Code), whether or not waived, with respect to any such plan; (ii) each of To Seller’s Knowledge, the Company Seller Plans and any related trusts that are eligible for Tax-favored treatment, currently satisfy in all material respectssatisfy, and for all prior periods have satisfied in all material respectssatisfied, in form and operation, all requirements for any Tax-favored treatment intended for such plan or trust or applicable to plans or trusts of its type, includingand to Seller’s Knowledge, as applicable, requirements under Sections 105, 106, 125, 401(a), 401(k) and 501 of the Code, and no event, transaction or condition has occurred or exists that is reasonably likely to result in the loss or limitation of such Tax-favored treatment; (iii) neither Seller nor any employee of Seller (i) who is a “disqualified person” (as defined in Section 4975 of the Code)To Seller’s Knowledge, has entered into any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory or administrative exemption does not exist with respect to any Company Plan, or (ii) that is a fiduciary (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty in connection with the administration or investment of the assets of the Company Plans; (iv) all of the Company Seller Plans have been operated in compliance in all material respects with their respective terms and all applicable Laws, and all contributions required under the terms of the Company Plans or applicable Law have been timely made; (v) Seller has no liability of any nature with respect to any Plan other than for contributions, payments or benefits due in the ordinary course under the current Company Plans, none of which are overdue; (viiv) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, hereby will now or at any time in the future: (i) future result in any the payment becoming due to any director, officer, employee, former employee, independent contractor, consultant of a stay bonus or agent of Seller from Seller under any Company Plan retention bonus or otherwise; (ii) increase any benefits otherwise payable under any Company Plan; (iii) result in any acceleration of the time of similar payment or vesting of any such benefits; or (iv) give rise to an obligation to pay any amount by Seller or Buyer (or any Affiliate of Buyer) or any Company Plan that would not be deductible by Seller or Buyer (or Affiliates of Buyer) by reason of Section 280G of the Code and that would subject the recipient of any such amount to the excise Tax imposed under Section 4999 of the CodeSeller; (viiv) none of the Company Seller Plans provide life, medical, dental, vision or other welfare benefits coverage to Persons who are not current employees of Seller or their spouses or dependents or for periods longer than one extending beyond the last day of the month after of termination of employment, except as required by Part 6 of Subtitle B of Title I of ERISA ERISA, Section 4980B of the Code, or any similar state or local Law; (viii) Seller can terminate each Company Plan without further material liability to Seller (except for benefits accrued through the date of termination); and (ixvi) Seller has retained the right to amend or terminate each Company Plan which Seller Plan, other than any “Plan” that is a “nonqualified deferred compensation plan” within the meaning of Code Section 409A(d)(1) complies in form and operation Contract with the provisions of Code Section 409A and the regulations promulgated thereunderan individual.