Common use of Employee Benefit Plans; Employee Relations Clause in Contracts

Employee Benefit Plans; Employee Relations. (a) Section 4.12 of the Company Disclosure Letter contains a true and complete list of each "employee benefit plan" (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), including multiemployer plans within the meaning of ERISA Section 3(37)), and any material stock purchase, stock option, severance, employment, change-in-control, fringe benefit, welfare benefit, collective bargaining, bonus, incentive, deferred compensation and all other material employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transaction contemplated by this Agreement or otherwise), whether formal or informal, oral or written, under which any employee or former employee of the Company may have any present or future right to benefits or under which the Company has any present or future liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the "Benefit Plans." Where appropriate all references to the "Company" in this Section 4.12 shall refer to the Company and any employer that would be considered a single employer with the Company under Section 414(b), (c), (m) or (o) of the Code. (b) The Company has, with respect to each Benefit Plan, if applicable, delivered or made available to Parent true and complete copies of: (i) all Benefit Plan texts and agreements and related trust agreements (or other funding vehicles); (ii) the most recent summary plan descriptions; (iii) the most recent annual report (including all schedules thereto); (iv) the most recent Form 5500 and attached schedules, annual audited financial statement and actuarial valuation report; (v) if the Benefit Plan is intended to qualify under Code Section 401(a), the most recent determination letter received from the Internal Revenue Service ("IRS"); and (vi) all material communications with any governmental entity or agency (including the Pension Benefit Guaranty Corporation ("PBGC") and the IRS) given or received within the past year. (c) No Benefit Plan is subject to either Code Section 412 or Title IV of ERISA and the Company has not sponsored, maintained or contributed to, or had any obligation to sponsor, maintain or contribute to, any employee benefit plan subject to Title IV of ERISA within the last six years. (d) Except as set forth in Section 4.12(d) of the Company Disclosure Letter and except for matters that would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Benefit Plan is in material compliance with all applicable laws and regulations, (ii) each Benefit Plan which is intended to qualify under Code Section 401(a) has been issued a favorable determination letter by the IRS and has not been amended in a manner, and no event has occurred since such date, which would cause any such plan to fail to remain so qualified, (iii) each Benefit Plan that requires registration with a relevant government body has been so registered and (iv) there are no actions, liens, suits or claims pending or, to the Company's Knowledge, threatened (other than routine claims for benefits) with respect to any Benefit Plan. (e) Except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985 (within the meaning of Code Section 4980B) and at the expense of the employee or former employee, and except as set forth in Section 4.12(e) of the Company Disclosure Letter, the Company has no obligation to provide or make available post-employment welfare benefits or welfare benefit coverage for any employee or former employee. (f) Except as set forth in Section 4.12(f) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (i) entitle any current or former employee of the Company to severance pay, unemployment compensation or any similar payment, (ii) except as set forth in Section 3.08(a), accelerate the time of payment or vesting, or increase the amount, of any compensation due to any current or former employee of the Company or (iii) to the Company's Knowledge, constitute or involve a non-exempt prohibited transaction (as defined in ERISA Section 406 or Code Section 4975) or constitute or involve a breach of fiduciary responsibility within the meaning of ERISA Section 502(l) that would have, individually or in the aggregate, a Company Material Adverse Effect. (g) No Benefit Plan is a "multiemployer plan" or "multiple employer plan" within the meaning of the Code or ERISA or the regulations promulgated thereunder. (h) Section 4.12(h) of the Company Disclosure Letter sets forth the number of employees in the aggregate, the number of full-time personnel and the number of contract workers of the Company as of the close of business on April 14, 2004. Except as disclosed in Section 4.12(h) of the Company Disclosure Letter, none of the employees of the Company is represented by a union, and, to the Company's Knowledge, no union organizing efforts have been conducted within the last three years or are now being conducted. Except as disclosed in Section 4.12(h) of the Company Disclosure Letter, the Company does not currently have, nor to the Company's Knowledge, is there now threatened, any strike, picket, work stoppage, work slowdown or other organized labor dispute. (i) The Company has not incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act, and the regulations promulgated thereunder (the "WARN Act") that remains unsatisfied or any liability or obligation that is material to the Company and its Subsidiaries, taken as a whole, under any similar state or local law that remains unsatisfied. (j) Except as set forth in Section 4.12(j) of the Company Disclosure Letter or otherwise in the ordinary course of business consistent with past practice and not in connection with, or in anticipation of or otherwise related to, the Offer, the Merger and the transactions contemplated hereby, since January 1, 2003, neither the Company nor any Subsidiary has entered into any new, or modified or amended any existing employment agreement or Benefit Plan. (k) Neither the Company nor any Benefit Plan, nor, to the Company's Knowledge, any "disqualified person" (as defined in Code Section 4975) or any "party in interest" (as defined in ERISA Section 3(18)), has engaged in any non-exempt prohibited transaction (within the meaning of Code Section 4975 or ERISA Section 406) that would have a Company Material Adverse Effect.

Employee Benefit Plans; Employee Relations. (a) Section 4.12 3.10(a) of the Company Disclosure Letter contains a true and complete list of each "employee benefit plan" (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), including multiemployer plans within the meaning of ERISA Section section ----- 3(37)) of ERISA), and any material stock purchase, stock option, severance, employment, change-in-in- control, fringe benefit, welfare benefit, collective bargaining, bonus, incentive, deferred compensation and all other material employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transaction contemplated by this Agreement or otherwise), whether formal or informal, oral or written, legally binding or not, under which any employee or former employee of the Company may have has any present or future right to benefits or under which the Company has any present or future liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the "Benefit Plans." Where appropriate all ------------- references to the "Company" in this Section 4.12 3.10 shall refer to the Company and any employer that would be considered a single employer with member of its "controlled group" within the Company under meaning of Section 414(b), (c), (m) or (o) 414 of the Code. (b) The Company has, with respect to each Benefit Plan, if applicable, delivered or made available to the Parent true and complete copies of: (i) all Benefit Plan plan texts and agreements and related trust agreements (or other funding vehicles); (ii) the most recent summary plan descriptionsdescriptions and material employee communications; (iii) the most recent annual report (including all schedules thereto); (iv) the most recent Form 5500 and attached schedules, annual audited financial statement and actuarial valuation reportopinion; (v) if the Benefit Plan plan is intended to qualify under Code Section 401(a)) of the Code, the most recent determination letter received from the Internal Revenue Service ("IRS")Service; and (vi) all material communications with any governmental entity or agency (including the Pension Benefit Guaranty Corporation ("PBGC") and the IRS) given or received within the past year. (c) No Benefit Plan is subject to either Code Section 412 or Title IV of ERISA and the Company has not sponsored, maintained or contributed to, or had any obligation to sponsor, maintain or contribute to, any employee benefit plan subject to Title IV of ERISA within the last six years. (d) Except as set forth in Section 4.12(d) of the Company Disclosure Letter and except for matters that would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Benefit Plan is in material compliance with all applicable laws and regulations, (ii) each Benefit Plan which is intended to qualify under Code Section 401(a) has been issued a favorable determination letter by the IRS and has not been amended in a manner, and no event has occurred since such date, which would cause any such plan to fail to remain so qualified, (iii) each Benefit Plan that requires registration with a relevant government body has been so registered and (iv) there are no actions, liens, suits or claims pending or, to the Company's Knowledge, threatened (other than routine claims for benefits) with respect to any Benefit Plan. (e) Except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985 (within the meaning of Code Section 4980B) and at the expense of the employee or former employee, and except as set forth in Section 4.12(e) of the Company Disclosure Letter, the Company has no obligation to provide or make available post-employment welfare benefits or welfare benefit coverage for any employee or former employee. (f) Except as set forth in Section 4.12(f) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (i) entitle any current or former employee of the Company to severance pay, unemployment compensation or any similar payment, (ii) except as set forth in Section 3.08(a), accelerate the time of payment or vesting, or increase the amount, of any compensation due to any current or former employee of the Company or (iii) to the Company's Knowledge, constitute or involve a non-exempt prohibited transaction (as defined in ERISA Section 406 or Code Section 4975) or constitute or involve a breach of fiduciary responsibility within the meaning of ERISA Section 502(l) that would have, individually or in the aggregate, a Company Material Adverse Effect. (g) No Benefit Plan is a "multiemployer plan" or "multiple employer plan" within the meaning of the Code or ERISA or the regulations promulgated thereunder. (h) Section 4.12(h) of the Company Disclosure Letter sets forth the number of employees in the aggregate, the number of full-time personnel and the number of contract workers of the Company as of the close of business on April 14, 2004. Except as disclosed in Section 4.12(h) of the Company Disclosure Letter, none of the employees of the Company is represented by a union, and, to the Company's Knowledge, no union organizing efforts have been conducted within the last three years or are now being conducted. Except as disclosed in Section 4.12(h) of the Company Disclosure Letter, the Company does not currently have, nor to the Company's Knowledge, is there now threatened, any strike, picket, work stoppage, work slowdown or other organized labor dispute. (i) The Company has not incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act, and the regulations promulgated thereunder (the "WARN Act") that remains unsatisfied or any liability or obligation that is material to the Company and its Subsidiaries, taken as a whole, under any similar state or local law that remains unsatisfied. (j) Except as set forth in Section 4.12(j) of the Company Disclosure Letter or otherwise in the ordinary course of business consistent with past practice and not in connection with, or in anticipation of or otherwise related to, the Offer, the Merger and the transactions contemplated hereby, since January 1, 2003, neither the Company nor any Subsidiary has entered into any new, or modified or amended any existing employment agreement or Benefit Plan. (k) Neither the Company nor any Benefit Plan, nor, to the Company's Knowledge, any "disqualified person" (as defined in Code Section 4975) or any "party in interest" (as defined in ERISA Section 3(18)), has engaged in any non-exempt prohibited transaction (within the meaning of Code Section 4975 or ERISA Section 406) that would have a Company Material Adverse Effect.

Employee Benefit Plans; Employee Relations. (a) Section 4.12 3.12(a) of the Company Disclosure Letter Schedule of Exceptions contains a true and complete list of each "employee benefit plan" (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), including multiemployer plans within the meaning of ERISA Section 3(37)) of ERISA), and any material stock purchase, stock option, severance, employment, change-in-control, loans, fringe benefit, welfare benefit, collective bargaining, bonus, incentive, deferred compensation and all other material employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transaction contemplated by this Agreement or otherwise), whether formal or informal, oral or written, legally binding or not, under which any employee or former employee of the Company may have has any present or future right to benefits or under which the Company has any present or future liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the "Benefit Plans." Where appropriate all All references to the "Company" in this Section 4.12 3.12 shall refer to the Company and any employer that would be considered a single employer with each member of its "controlled group," including, without limitation, the Company under Subsidiaries, within the meaning of Section 414(b), (c), (m) or (o) 414 of the Code. (b) The Company has, with respect to each Benefit Plan, if applicable, delivered or made available to Parent true and complete copies of: (i) all Benefit Plan plan texts and agreements and related trust agreements (or other funding vehicles); (ii) the most recent summary plan descriptionsdescriptions and material employee communications; (iii) the most recent annual report (including all schedules thereto); (iv) the most recent Form 5500 and attached schedules, annual audited financial statement and actuarial valuation reportopinion; (v) if the Benefit Plan plan is intended to qualify under Code Section 401(a)) of the Code, the most recent determination letter received from the Internal Revenue Service ("IRS")Service; and (vi) all material communications with any governmental entity or agency Governmental Entity (including the Pension Benefit Guaranty Corporation ("PBGC") and the IRSInternal Revenue Service) given or received within the past yearthree years. (c) No The Company does not currently and has not within the last six years maintained, contributed to or had any liability under any Benefit Plan is subject to either Code Section 412 of the Code or Title IV of ERISA and the Company has not sponsored, maintained or contributed toERISA, or had any obligation to sponsor, maintain "multiemployer plan" or contribute to, any employee benefit "multiple employer" plan subject to Title IV of ERISA within as defined in the last six yearsCode or ERISA. (d) Except as set forth in Section 4.12(d) of the Company Disclosure Letter and except for matters that would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Benefit Plan is in material compliance with all applicable laws and regulations, (ii) each Benefit Plan which is intended to qualify under Code Section 401(a) has been issued a favorable determination letter by the IRS and has not been amended in a manner, and no event has occurred since such date, which would cause any such plan to fail to remain so qualified, (iii) each Benefit Plan that requires registration with a relevant government body has been so registered and (iv) there No Claims are no actions, liens, suits or claims pending or, to the knowledge of the Company's Knowledge, threatened (other than routine claims for benefits) with respect to any Benefit PlanPlan as to which the Company has or could reasonably be expected to have any direct or indirect actual or contingent material liability. (e) Except Each Benefit Plan which is a "group health plan" (as may be required under defined in Section 607(1) of ERISA) is in material compliance with the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (within the meaning of Code Section 4980B) and at the expense of the employee or former employee1985, and except as set forth in Section 4.12(e) of the Company Disclosure Letteramended, the Company has no obligation to provide Health Insurance Portability and Accountability Act and any other applicable federal, state or make available post-employment welfare benefits or welfare benefit coverage for any employee or former employeelocal law. (f) Except as set forth in Section 4.12(f) of There are no Benefit Plans maintained by the Company Disclosure Letterpursuant to which welfare benefits are provided to current or former employees beyond their retirement or other termination of service, neither the execution and delivery of this Agreement nor the other than coverage mandated by applicable Law. (g) The consummation of the transactions contemplated hereby by this Agreement will (either alone or in combination with another event) not (i) entitle any current or former employee of the Company to severance pay, bonus, unemployment compensation (to the knowledge of the Company) or any similar paymentother payment (other than as a shareholder), (ii) except as set forth in Section 3.08(a), accelerate the time of payment or vesting, or increase the amount, amount of any compensation due to to, any current or former employee of the Company Company, or (iii) to the Company's Knowledge, constitute or involve a non-exempt prohibited transaction (as defined in ERISA Section 406 of ERISA or Code Section 4975) or 4975 of the Code), constitute or involve a breach of fiduciary responsibility within the meaning of ERISA Section 502(l) that would have, individually of ERISA as to which the Company has or in the aggregate, a Company Material Adverse Effect. (g) No Benefit Plan is a "multiemployer plan" reasonably could be expected to have any direct or "multiple employer plan" within the meaning of the Code or ERISA or the regulations promulgated thereunderindirect actual material liability. (h) Section 4.12(h) of the Company Disclosure Letter sets forth the number of employees in the aggregate, the number of full-time personnel and the number of contract workers of the Company as of the close of business on April 14, 2004. Except as disclosed in Section 4.12(h) of the Company Disclosure Letter, none of the employees of the Company is represented by a union, and, to the Company's Knowledge, no union organizing efforts have been conducted within the last three years or are now being conducted. Except as disclosed in Section 4.12(h) of the Company Disclosure Letter, the Company does not currently have, nor to the Company's Knowledge, is there now threatened, any strike, picket, work stoppage, work slowdown or other organized labor dispute. (i) The Company has not incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act, and the regulations promulgated thereunder (the "WARN Act") that remains unsatisfied or any liability or obligation that is material to the Company and its Subsidiaries, taken as a whole, under any similar state or local law that remains unsatisfied. (j) Except as set forth in Section 4.12(j) of the Company Disclosure Letter or otherwise in the ordinary course of business consistent with past practice and not in connection with, or in anticipation of or otherwise related to, the Offer, the Merger and the transactions contemplated hereby, since January 1, 2003, neither the Company nor any Subsidiary has entered into any new, or modified or amended any existing employment agreement or Benefit Plan. (k) Neither the Company nor any Benefit Plan, nor, or to the knowledge of the Company's Knowledge, any "disqualified person" (as defined in Code Section 49754975 of the Code) or any "party in interest" (as defined in ERISA Section 3(18)) of ERISA), has engaged in any non-exempt prohibited transaction (within the meaning of Code Section 4975 of the Code or ERISA Section 406406 of ERISA) which could reasonably be expected to result in any material liability to the Company. No event has occurred that would have could subject the Company or any Benefit Plan to a Company Material Adverse Effectmaterial excise tax under Chapter 43 of Subtitle D of the Code. (i) None of the assets of any Benefit Plan is stock of the Company, or property leased to or jointly owned by the Company.

Employee Benefit Plans; Employee Relations. (aA) Section 4.12 of the Company Disclosure Letter contains a true and complete list of each "employee benefit plan" (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), including multiemployer plans within the meaning of ERISA Section section 3(37)), and any material stock purchase, stock option, profit-sharing, severance, employmentemployment (including any consulting arrangement equivalent to executive-level employment agreements), change-in-control, fringe benefit, welfare benefit, employee pension, savings, retirement, accident insurance, vacation, collective bargaining, bonus, incentive, deferred compensation and all other material written employee benefit plans, agreements, programs, policies policies, commitment or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transaction contemplated by this Agreement or otherwise), whether formal or informal, oral whether legally binding or writtennot, under which any U.S. employee or former U.S. employee of the Company may have has any present or future right to benefits or under which the Company has any present or future liability. All such plans, agreements, programs, policies policies, commitments and arrangements shall be arrangements, if sponsored, maintained or contributed to by the Company for its U.S. employees, are hereinafter collectively referred to as the "Benefit Plans.BENEFIT PLANS" Where appropriate and, if sponsored, maintained or contributed to by the Company for its foreign employees, are hereinafter collectively referred to as the "FOREIGN BENEFIT PLANS". Except where the context otherwise requires, all references to the "Company" in this Section 4.12 shall refer to the Company and any employer that would be considered trade or business (whether or not incorporated) which is or has ever been treated as a single employer with the Company under Section 414(b), (c), (m) or (o) of the Code. (b) The Company has, with respect to each Benefit Plan, if applicable, delivered or made available to Parent true and complete copies of: (i) all Benefit Plan texts and agreements and related trust agreements (or other funding vehicles); (ii) the most recent summary plan descriptions; (iii) the most recent annual report (including all schedules thereto); (iv) the most recent Form 5500 and attached schedules, annual audited financial statement and actuarial valuation report; (v) if the Benefit Plan is intended to qualify under Code Section 401(a), the most recent determination letter received from the Internal Revenue Service ("IRS"); and (vi) all material communications with any governmental entity or agency (including the Pension Benefit Guaranty Corporation ("PBGC") and the IRS) given or received within the past year. (c) No Benefit Plan is subject to either Code Section 412 or Title IV of ERISA and the Company has not sponsored, maintained or contributed to, or had any obligation to sponsor, maintain or contribute to, any employee benefit plan subject to Title IV of ERISA within the last six years. (d) Except as set forth in Section 4.12(d) of the Company Disclosure Letter and except for matters that would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Benefit Plan is in material compliance with all applicable laws and regulations, (ii) each Benefit Plan which is intended to qualify under Code Section 401(a) has been issued a favorable determination letter by the IRS and has not been amended in a manner, and no event has occurred since such date, which would cause any such plan to fail to remain so qualified, (iii) each Benefit Plan that requires registration with a relevant government body has been so registered and (iv) there are no actions, liens, suits or claims pending or, to the Company's Knowledge, threatened (other than routine claims for benefits) with respect to any Benefit Plan. (e) Except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985 (within the meaning of Code Section 4980B) and at the expense of the employee or former employee, and except as set forth in Section 4.12(e) of the Company Disclosure Letter, the Company has no obligation to provide or make available post-employment welfare benefits or welfare benefit coverage for any employee or former employee. (f) Except as set forth in Section 4.12(f) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (i) entitle any current or former employee of the Company to severance pay, unemployment compensation or any similar payment, (ii) except as set forth in Section 3.08(a), accelerate the time of payment or vesting, or increase the amount, of any compensation due to any current or former employee of the Company or (iii) to the Company's Knowledge, constitute or involve a non-exempt prohibited transaction (as defined in ERISA Section 406 or Code Section 4975) or constitute or involve a breach of fiduciary responsibility within the meaning of ERISA Section 502(l) that would have, individually or in the aggregate, a Company Material Adverse Effect. (g) No Benefit Plan is a "multiemployer plan" or "multiple employer plan" within the meaning of the Code or ERISA or the regulations promulgated thereunder. (h) Section 4.12(h) of the Company Disclosure Letter sets forth the number of employees in the aggregate, the number of full-time personnel and the number of contract workers of the Company as of the close of business on April 14, 2004. Except as disclosed in Section 4.12(h) of the Company Disclosure Letter, none of the employees of the Company is represented by a union, and, to the Company's Knowledge, no union organizing efforts have been conducted within the last three years or are now being conducted. Except as disclosed in Section 4.12(h) of the Company Disclosure Letter, the Company does not currently have, nor to the Company's Knowledge, is there now threatened, any strike, picket, work stoppage, work slowdown or other organized labor dispute. (i) The Company has not incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act, and the regulations promulgated thereunder (the "WARN Act") that remains unsatisfied or any liability or obligation that is material to the Company and its Subsidiaries, taken as a whole, under any similar state or local law that remains unsatisfied. (j) Except as set forth in Section 4.12(j) of the Company Disclosure Letter or otherwise in the ordinary course of business consistent with past practice and not in connection with, or in anticipation of or otherwise related to, the Offer, the Merger and the transactions contemplated hereby, since January 1, 2003, neither the Company nor any Subsidiary has entered into any new, or modified or amended any existing employment agreement or Benefit Plan. (k) Neither the Company nor any Benefit Plan, nor, to the Company's Knowledge, any "disqualified person" (as defined in Code Section 4975) or any "party in interest" (as defined in ERISA Section 3(18)), has engaged in any non-exempt prohibited transaction (within the meaning of Code Section 4975 or ERISA Section 406) that would have a Company Material Adverse Effect.

Employee Benefit Plans; Employee Relations. (a) Section 4.12 3.12 of the Company Disclosure Letter contains a true and complete list of each "employee benefit plan" (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), including multiemployer plans within the meaning of ERISA Section 3(37)), and any material stock purchase, stock option, stock bonus, phantom stock, severance, retention, employment, consulting, change-in-control, fringe benefit, welfare benefit, collective bargaining, bonus, incentive, deferred compensation compensation, retirement, supplemental retirement, excess benefit, sick leave, vacation, holiday, salary continuance, tuition, post-retirement and all other material compensation or employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transaction contemplated by this Agreement or otherwise), whether formal or informal, oral or written, under which is or has been maintained, sponsored, contributed to or otherwise provided or made by the Company for the benefit of or with any employee current or former employee of the Company may have any present or future right to benefits director or under which the Company has any present or future liabilityliability or obligation. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the "Benefit Plans." Where appropriate all All references to the "Company" in this Section 4.12 3.12 shall be deemed to refer to the Company and any employer that would be considered a single employer with the Company under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (together with the rules and regulations thereunder, the "Code") or Section 4001 of ERISA. (b) The Company has, with respect to each Benefit Plan, if applicable, delivered or made available to Parent true and complete copies of: (i) all Benefit Plan texts documents (including amendments) and agreements and related trust agreements (or other funding vehicles); (ii) the most recent summary plan descriptions; (iii) the most recent annual report (including all schedules thereto); (iv) the two most recent Form 5500 and attached schedules, annual audited financial statement and actuarial valuation report; (v) if the Benefit Plan is intended to qualify under Code Section 401(a), the most recent determination letter received from the Internal Revenue Service ("IRS"); and (vi) all material communications with any governmental entity or agency (including the Pension Benefit Guaranty Corporation ("PBGC") and the IRS) given or received within the past yearany current or former employee. (c) No Benefit Plan is subject to either Code Section 412 or Title IV of ERISA and the Company has not sponsored, maintained or contributed to, or had any obligation to sponsor, maintain or contribute to, any employee benefit plan subject to Title IV of ERISA within the last six yearsERISA. The Company has not incurred and could not reasonably be expected to incur any direct or indirect liability (contingent or otherwise) under Title IV of ERISA. (d) Except as set forth in Section 4.12(d) of the Company Disclosure Letter and except for matters that would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Each Benefit Plan is has in all material respects been maintained and administered in accordance with its terms and in compliance with all applicable laws and regulationsregulations including ERISA and the Code, (ii) each Benefit Plan which is intended to qualify under Code Section 401(a) is so qualified and has been issued a favorable determination letter by the IRS and has not been amended in a manner, and no event has occurred since such date, which would cause any such plan to fail to remain so qualified, (iii) each Benefit Plan that requires registration with a relevant government body has been so registered and registered, (iv) there are no actions, liens, suits Proceedings or claims pending or, to the Company's Knowledge, threatened (other than routine claims for benefits) by, on behalf of or against any Benefit Plan or any trusts related thereto, (v) no Benefit Plan is under audit or, to the Company's Knowledge, investigation by, or is the subject of a Proceeding with respect to any Benefit Planthe IRS, the Department of Labor or other Governmental Entity and, to the Knowledge of Company, no such audit, investigation or Proceeding is threatened. (e) Except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985 (within the meaning of Code Section 4980B) and at the expense of the employee or former employee, and except as set forth in Section 4.12(e) of the Company Disclosure Letter, the Company has no obligation to provide or make available post-employment welfare benefits or welfare benefit coverage for any current or former employee or former employeedirector. (f) Except as set forth in Section 4.12(f) of the Company Disclosure Letter, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (i) entitle any current or former employee or director of the Company to severance pay, unemployment compensation or any similar paymentpayment or any forgiveness of Indebtedness, (ii) except as set forth in Section 3.08(a), accelerate the time of payment or vesting, or increase the amount, of any compensation or benefits due to any current or former employee or director of the Company or Company, (iii) give rise to any obligation to fund for any such payment or benefits, (iv) give rise to any limitation on the Company's Knowledgeability to amend or terminate any Benefit Plan, (v) result in any payment or benefit that constitutes an "excess parachute payment" within the meaning of Section 280G of the Code or (vii) constitute or involve a non-exempt prohibited transaction (as defined in ERISA Section 406 or Code Section 4975) or constitute or involve a breach of fiduciary responsibility within the meaning of ERISA Section 502(l) that would have, individually or in the aggregate, a Company Material Adverse Effect). (g) No Benefit Plan is a The Company has not maintained or contributed to (or had an obligation to contribute to) any "multiemployer plan" or "multiple employer plan" within the meaning of the Code or ERISA or the regulations promulgated thereunder. (h) The Company's Employee Stock Ownership Plan (the "ESOP") is an "employee stock ownership plan" (within the meaning of Section 4.12(h4975(e)(7) of the Code). Neither the Company Disclosure Letter sets forth (including any of its Subsidiaries) nor the number ESOP has any outstanding Indebtedness in connection with or with respect to the ESOP. (i) (i) Neither the Company nor any of employees its Subsidiaries is a party to or bound by any collective bargaining or similar agreement with any union or other labor organization or is engaged in the aggregate, the number of full-time personnel any labor negotiations with any labor union; and the number of contract workers (ii) (A) each of the Company and its Subsidiaries is, and has at all times been, in compliance in all material respects with all applicable laws, rules, regulations and orders respecting employment and employment practices, terms and conditions of employment, wages, hours or work and occupational safety and health, and is not engaged in any unfair labor practices as defined in the National Labor Relations Act or other applicable law; (B) there is no arbitration, strike, slowdown, stoppage or lockout pending, or, to the Knowledge of the close of business on April 14Company, 2004. Except as disclosed in Section 4.12(h) threatened against or affecting the Company or any of the Subsidiaries; (C) there are no Proceedings pending between the Company Disclosure Letter, none or any of its Subsidiaries and any of their respective employees before any Governmental Entity; and (D) to the Knowledge of the Company, there are no activities or proceedings of any labor union to organize any employees of the Company is represented by a union, and, to the Company's Knowledge, no union organizing efforts have been conducted within the last three years or are now being conducted. Except as disclosed in Section 4.12(h) any of the Company Disclosure Letter, the Company does not currently have, nor to the Company's Knowledge, is there now threatened, any strike, picket, work stoppage, work slowdown or other organized labor disputeits Subsidiaries. (ij) The Company has not incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act, and the regulations promulgated thereunder (the "WARN Act") that remains unsatisfied or any liability or obligation that is material to the Company and its Subsidiaries, taken as a whole, under any similar state or local law that remains unsatisfied. (jk) Except as set forth in Section 4.12(j) of the Company Disclosure Letter or otherwise in the ordinary course of business consistent with past practice and not in connection with, or in anticipation of or otherwise related to, the Offer, the Merger and the transactions contemplated hereby, since Since January 1, 2003, neither the Company nor any Subsidiary has entered into any new, or modified or amended any existing existing, employment agreement or Benefit Plan and the Company does not have any formal plan or commitment, whether legally binding or not, to create any additional Benefit Plan or to amend or modify any Benefit Plan. (kl) Neither the Company nor any Benefit Plan, nor, to the Company's Knowledge, any "disqualified person" (as defined in Code Section 4975) or any "party in interest" (as defined in ERISA Section 3(18)), has engaged in any non-exempt prohibited transaction (within the meaning of Code Section 4975 or ERISA Section 406) for which a class exemption is not available. All contributions, premiums, benefits and other payments required to be made to or under, or accrued with respect to, each Benefit Plan with respect to all periods through the Effective Time shall have been made or properly accrued prior to Closing. Each Benefit Plan may be unilaterally terminated and/or amended by the Company at any time without liability, damage or penalty. The Company does not have any unfunded liabilities under any pension plan (within the meaning of Section 3(2) of ERISA) that would have a Company Material Adverse Effectis not intended to be qualified under Section 401(a) of the Code.

Employee Benefit Plans; Employee Relations. (a) Section 4.12 3.12(a) of the Company Disclosure Letter Schedule of Exceptions contains a true and complete list of each "“employee benefit plan" ” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"“), including multiemployer plans within the meaning of ERISA Section 3(37)), and any material stock purchase, stock option, severance, employment, change-in-control, loans, fringe benefit, welfare benefit, collective bargaining, bonus, incentive, deferred compensation and all other material employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transaction contemplated by this Agreement or otherwise), whether formal or informal, oral or written, legally binding or not, under which any employee or former employee of the Company may have has any present or future right to benefits or under which the Company has any present or future liability. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the "“Benefit Plans." Where appropriate all ” All references to the "“Company" ” in this Section 4.12 3.12 shall refer to the Company and any employer that would be considered a single employer with each member of its “controlled group,” including, without limitation, the Company under Section 414(bSubsidiaries, within the meaning of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Internal Revenue Code of 1986, as amended (the “Code“), (c), (m) or (o) of the Code. (b) The Company has, with respect to each Benefit Plan, if applicable, delivered or made available to Parent true and complete copies of: (i) all Benefit Plan plan texts and agreements and related trust agreements (or other funding vehicles); (ii) the most recent summary plan descriptionsdescriptions and material employee communications; (iii) the most recent annual report (including all schedules thereto); (iv) the most recent Form 5500 and attached schedules, annual audited financial statement and actuarial valuation reportopinion; (v) if the Benefit Plan plan is intended to qualify under Code Section 401(a)) of the Code, the most recent determination letter received from the Internal Revenue Service ("IRS")Service; and (vi) all material communications with any governmental entity or agency Governmental Entity (including the Pension Benefit Guaranty Corporation ("PBGC") and the IRSInternal Revenue Service) given or received within the past yearthree years. (c) No The Company does not currently and has not within the last six years maintained, contributed to or had any liability under any Benefit Plan that is subject to either Code Section 412 of the Code or Title IV of ERISA and the Company has not sponsored, maintained or contributed toERISA, or had any obligation to sponsor, maintain “multiemployer plan” or contribute to, any employee benefit “multiple employer” plan subject to Title IV of ERISA within as defined in the last six yearsCode or ERISA. (d) Except as set forth in Section 4.12(d) of the Company Disclosure Letter and except for matters that would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Benefit Plan is in material compliance with all applicable laws and regulations, (ii) each Benefit Plan which is intended to qualify under Code Section 401(a) has been issued a favorable determination letter by the IRS and has not been amended in a manner, and no event has occurred since such date, which would cause any such plan to fail to remain so qualified, (iii) each Benefit Plan that requires registration with a relevant government body has been so registered and (iv) there No Claims are no actions, liens, suits or claims pending or, to the knowledge of the Company's Knowledge, threatened (other than routine claims for benefits) with respect to any Benefit PlanPlan as to which the Company has or could reasonably be expected to have any direct or indirect, actual or contingent, material liability. (e) Except Each Benefit Plan which is a “group health plan” (as may be required under defined in Section 607(1) of ERISA) is in material compliance with the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (within the meaning of Code Section 4980B) and at the expense of the employee or former employee1985, and except as set forth in Section 4.12(e) of the Company Disclosure Letteramended, the Company has no obligation to provide Health Insurance Portability and Accountability Act and any other applicable federal, state or make available post-employment welfare benefits or welfare benefit coverage for any employee or former employeelocal law. (f) Except as set forth in Section 4.12(f3.12(f) of the Schedule of Exceptions, there are no Benefit Plans maintained by the Company Disclosure Letterpursuant to which welfare benefits are provided to current or former employees beyond their retirement or other termination of service, neither the execution and delivery of this Agreement nor the other than coverage mandated by applicable Law. (g) The consummation of the transactions contemplated hereby by this Agreement will (either alone or in combination with another event) not (i) except as set forth in Section 3.12(g) of the Schedule of Exceptions, entitle any current or former employee of the Company to severance pay, bonus, unemployment compensation (to the knowledge of the Company) or any similar paymentother payment (other than as a stockholder), (ii) except as set forth in Section 3.08(a), accelerate the time of payment or vesting, or increase the amount, amount of any compensation due to to, any current or former employee of the Company Company, or (iii) to the Company's Knowledge, constitute or involve a non-exempt prohibited transaction (as defined in ERISA Section 406 of ERISA or Code Section 4975) or 4975 of the Code), constitute or involve a breach of fiduciary responsibility within the meaning of ERISA Section 502(l) that would have, individually of ERISA as to which the Company has or in the aggregate, a Company Material Adverse Effect. (g) No Benefit Plan is a "multiemployer plan" reasonably could be expected to have any direct or "multiple employer plan" within the meaning of the Code or ERISA or the regulations promulgated thereunderindirect actual material liability. (h) Section 4.12(h) of the Company Disclosure Letter sets forth the number of employees in the aggregate, the number of full-time personnel and the number of contract workers of the Company as of the close of business on April 14, 2004. Except as disclosed in Section 4.12(h) of the Company Disclosure Letter, none of the employees of the Company is represented by a union, and, to the Company's Knowledge, no union organizing efforts have been conducted within the last three years or are now being conducted. Except as disclosed in Section 4.12(h) of the Company Disclosure Letter, the Company does not currently have, nor to the Company's Knowledge, is there now threatened, any strike, picket, work stoppage, work slowdown or other organized labor dispute. (i) The Company has not incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act, and the regulations promulgated thereunder (the "WARN Act") that remains unsatisfied or any liability or obligation that is material to the Company and its Subsidiaries, taken as a whole, under any similar state or local law that remains unsatisfied. (j) Except as set forth in Section 4.12(j) of the Company Disclosure Letter or otherwise in the ordinary course of business consistent with past practice and not in connection with, or in anticipation of or otherwise related to, the Offer, the Merger and the transactions contemplated hereby, since January 1, 2003, neither the Company nor any Subsidiary has entered into any new, or modified or amended any existing employment agreement or Benefit Plan. (k) Neither the Company nor any Benefit Plan, nor, or to the knowledge of the Company's Knowledge, any "“disqualified person" ” (as defined in Code Section 49754975 of the Code) or any "“party in interest" ” (as defined in ERISA Section 3(18)) of ERISA), has engaged in any non-exempt prohibited transaction (within the meaning of Code Section 4975 of the Code or ERISA Section 406406 of ERISA) which could reasonably be expected to result in any material liability to the Company. No event has occurred that would have could subject the Company or any Benefit Plan to a Company Material Adverse Effectmaterial excise tax under Chapter 43 of Subtitle D of the Code. (i) None of the assets of any Benefit Plan is stock of the Company, or property leased to or jointly owned by the Company.

Employee Benefit Plans; Employee Relations. (a) Section 4.12 3.12 of the Company Disclosure Letter contains a true and complete list of each "“employee benefit plan" ” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”), including multiemployer plans within the meaning of ERISA Section 3(37)), and any material stock purchase, stock option, stock bonus, phantom stock, severance, retention, employment, consulting, change-in-control, fringe benefit, welfare benefit, collective bargaining, bonus, incentive, deferred compensation compensation, retirement, supplemental retirement, excess benefit, sick leave, vacation, holiday, salary continuance, tuition, post-retirement and all other material compensation or employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transaction contemplated by this Agreement or otherwise), whether formal or informal, oral or written, under which is or has been maintained, sponsored, contributed to or otherwise provided or made by the Company for the benefit of or with any employee current or former employee of the Company may have any present or future right to benefits director or under which the Company has any present or future liabilityliability or obligation. All such plans, agreements, programs, policies and arrangements shall be collectively referred to as the "“Benefit Plans." Where appropriate all ” All references to the "“Company" ” in this Section 4.12 3.12 shall be deemed to refer to the Company and any employer that would be considered a single employer with the Company under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (together with the rules and regulations thereunder, the “Code”) or Section 4001 of ERISA. (b) The Company has, with respect to each Benefit Plan, if applicable, delivered or made available to Parent true and complete copies of: (i) all Benefit Plan texts documents (including amendments) and agreements and related trust agreements (or other funding vehicles); (ii) the most recent summary plan descriptions; (iii) the most recent annual report (including all schedules thereto); (iv) the two most recent Form 5500 and attached schedules, annual audited financial statement and actuarial valuation report; (v) if the Benefit Plan is intended to qualify under Code Section 401(a), the most recent determination letter received from the Internal Revenue Service ("“IRS"”); and (vi) all material communications with any governmental entity or agency (including the Pension Benefit Guaranty Corporation ("PBGC") and the IRS) given or received within the past yearany current or former employee. (c) No Benefit Plan is subject to either Code Section 412 or Title IV of ERISA and the Company has not sponsored, maintained or contributed to, or had any obligation to sponsor, maintain or contribute to, any employee benefit plan subject to Title IV of ERISA within the last six yearsERISA. The Company has not incurred and could not reasonably be expected to incur any direct or indirect liability (contingent or otherwise) under Title IV of ERISA. (d) Except as set forth in Section 4.12(d) of the Company Disclosure Letter and except for matters that would not, individually or in the aggregate, have a Company Material Adverse Effect, (i) each Each Benefit Plan is has in all material respects been maintained and administered in accordance with its terms and in compliance with all applicable laws and regulationsregulations including ERISA and the Code, (ii) each Benefit Plan which is intended to qualify under Code Section 401(a) is so qualified and has been issued a favorable determination letter by the IRS and has not been amended in a manner, and no event has occurred since such date, which would cause any such plan to fail to remain so qualified, (iii) each Benefit Plan that requires registration with a relevant government body has been so registered and registered, (iv) there are no actions, liens, suits Proceedings or claims pending or, to the Company's ’s Knowledge, threatened (other than routine claims for benefits) by, on behalf of or against any Benefit Plan or any trusts related thereto, (v) no Benefit Plan is under audit or, to the Company’s Knowledge, investigation by, or is the subject of a Proceeding with respect to any Benefit Planthe IRS, the Department of Labor or other Governmental Entity and, to the Knowledge of Company, no such audit, investigation or Proceeding is threatened. (e) Except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985 (within the meaning of Code Section 4980B) and at the expense of the employee or former employee, and except as set forth in Section 4.12(e) of the Company Disclosure Letter, the Company has no obligation to provide or make available post-employment welfare benefits or welfare benefit coverage for any current or former employee or former employeedirector. (f) Except as set forth in Section 4.12(f) of the Company Disclosure Letter, neither Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (i) entitle any current or former employee or director of the Company to severance pay, unemployment compensation or any similar paymentpayment or any forgiveness of Indebtedness, (ii) except as set forth in Section 3.08(a), accelerate the time of payment or vesting, or increase the amount, of any compensation or benefits due to any current or former employee or director of the Company or Company, (iii) give rise to any obligation to fund for any such payment or benefits, (iv) give rise to any limitation on the Company's Knowledgeability to amend or terminate any Benefit Plan, (v) result in any payment or benefit that constitutes an “excess parachute payment” within the meaning of Section 280G of the Code or (vii) constitute or involve a non-exempt prohibited transaction (as defined in ERISA Section 406 or Code Section 4975) or constitute or involve a breach of fiduciary responsibility within the meaning of ERISA Section 502(l) that would have, individually or in the aggregate, a Company Material Adverse Effect). (g) No Benefit Plan is a "The Company has not maintained or contributed to (or had an obligation to contribute to) any “multiemployer plan" ” or "“multiple employer plan" ” within the meaning of the Code or ERISA or the regulations promulgated thereunder. (h) The Company’s Employee Stock Ownership Plan (the “ESOP”) is an “employee stock ownership plan” (within the meaning of Section 4.12(h4975(e)(7) of the Code). Neither the Company Disclosure Letter sets forth (including any of its Subsidiaries) nor the number ESOP has any outstanding Indebtedness in connection with or with respect to the ESOP. (i) (i) Neither the Company nor any of employees its Subsidiaries is a party to or bound by any collective bargaining or similar agreement with any union or other labor organization or is engaged in the aggregate, the number of full-time personnel any labor negotiations with any labor union; and the number of contract workers (ii) (A) each of the Company and its Subsidiaries is, and has at all times been, in compliance in all material respects with all applicable laws, rules, regulations and orders respecting employment and employment practices, terms and conditions of employment, wages, hours or work and occupational safety and health, and is not engaged in any unfair labor practices as defined in the National Labor Relations Act or other applicable law; (B) there is no arbitration, strike, slowdown, stoppage or lockout pending, or, to the Knowledge of the close of business on April 14Company, 2004. Except as disclosed in Section 4.12(h) threatened against or affecting the Company or any of the Subsidiaries; (C) there are no Proceedings pending between the Company Disclosure Letter, none or any of its Subsidiaries and any of their respective employees before any Governmental Entity; and (D) to the Knowledge of the Company, there are no activities or proceedings of any labor union to organize any employees of the Company is represented by a union, and, to the Company's Knowledge, no union organizing efforts have been conducted within the last three years or are now being conducted. Except as disclosed in Section 4.12(h) any of the Company Disclosure Letter, the Company does not currently have, nor to the Company's Knowledge, is there now threatened, any strike, picket, work stoppage, work slowdown or other organized labor disputeits Subsidiaries. (ij) The Company has not incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act, and the regulations promulgated thereunder (the "“WARN Act"”) that remains unsatisfied or any liability or obligation that is material to the Company and its Subsidiaries, taken as a whole, under any similar state or local law that remains unsatisfied. (jk) Except as set forth in Section 4.12(j) of the Company Disclosure Letter or otherwise in the ordinary course of business consistent with past practice and not in connection with, or in anticipation of or otherwise related to, the Offer, the Merger and the transactions contemplated hereby, since Since January 1, 2003, neither the Company nor any Subsidiary has entered into any new, or modified or amended any existing existing, employment agreement or Benefit Plan and the Company does not have any formal plan or commitment, whether legally binding or not, to create any additional Benefit Plan or to amend or modify any Benefit Plan. (kl) Neither the Company nor any Benefit Plan, nor, to the Company's ’s Knowledge, any "“disqualified person" ” (as defined in Code Section 4975) or any "“party in interest" ” (as defined in ERISA Section 3(18)), has engaged in any non-exempt prohibited transaction (within the meaning of Code Section 4975 or ERISA Section 406) for which a class exemption is not available. All contributions, premiums, benefits and other payments required to be made to or under, or accrued with respect to, each Benefit Plan with respect to all periods through the Effective Time shall have been made or properly accrued prior to Closing. Each Benefit Plan may be unilaterally terminated and/or amended by the Company at any time without liability, damage or penalty. The Company does not have any unfunded liabilities under any pension plan (within the meaning of Section 3(2) of ERISA) that would have a Company Material Adverse Effectis not intended to be qualified under Section 401(a) of the Code.