Common use of Employee Benefit Plans; Employment Agreements Clause in Contracts

Employee Benefit Plans; Employment Agreements. (a) The Parent's Disclosure Schedule lists all employee benefit plans (as defined in ERISA) and all bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and other similar fringe or employee benefit plans, programs or arrangements, and any current or former employment or executive compensation or severance agreements, written or otherwise, for the benefit of, or relating to, any employee of the Parent, any trade or business (whether or not incorporated) which is a member of a controlled group including the Parent or which is under common control with the Parent (a "Parent ERISA Affiliate") within the meaning of section 414 of the Code, as well as each plan with respect to which the Parent or a Parent ERISA Affiliate could incur liability under Section 4069 (if such plan has been or was terminated) or Section 4212(c) of ERISA (together, the "Parent Benefit Plans"), excluding former agreements under which the Parent has no remaining obligations. Copies of each of the following, to the extent applicable, have been made available to the Company with respect to each Parent Benefit Plan: the most recent annual report (Form 5500) filed with the IRS, the plan document, the trust agreement, the most recent summary plan description if required by ERISA, the most recent actuarial report or valuation relating to each Benefit Plan subject to Title IV of ERISA, and the most recent determination letter issued by the IRS with respect to any Benefit Plan intended to be qualified under section 401 of the Code. (b) With respect to each Parent Benefit Plan, no event has occurred and, to the knowledge of Parent, there currently exists no condition or set of circumstances, in connection with which Parent or any of its subsidiaries could be subject to any liability under the terms of such Parent Benefit Plan, ERISA, the Code or any other applicable law which would have a Parent Material Adverse Effect. (c) Each Parent Benefit Plan intended to be qualified under section 401 of the Code (i) satisfies in form the requirements of such section except to the extent amendments are not required by law to be made until a date after the Effective Time, (ii) has received a favorable determination letter from the IRS regarding such qualified status, and (iii) has not, since receipt of the most recent favorable determination letter, been amended in a way that would adversely affect its qualified status. (d) There are no actions, suits, or claims pending (other than routine claims for benefits) or, to the knowledge of the Parent, threatened against, or with respect to, any Parent Benefit Plan or its assets that could reasonably be expected to have a Parent Material Adverse Effect. (e) To the knowledge of the Parent, there is no matter pending (other than routine qualification determination filings) with respect to any Parent Benefit Plans before the IRS, the U.S. Department of Labor, the PBGC or any other governmental authority. (f) All material contributions required to be made to Parent Benefit Plans pursuant to their terms and the provisions of ERISA, the Code, or any other applicable law have been timely made. (g) As to each Parent Benefit Plan subject to Title IV of ERISA, (i) there has been no event or condition which presents a significant risk of plan termination, (ii) no accumulated funding deficiency, whether or not waived, within the meaning of Section 302 of ERISA or section 412 of the Code has been incurred, (iii) no reportable event within the meaning of Section 4043 of ERISA (for which the disclosure requirements of Regulation section 4043.1 et seq., promulgated by the PBGC, have not been waived) has occurred within six years prior to the date of this Agreement, (iv) no notice of intent to terminate such Parent Benefit Plan has been given under Section 4041 of ERISA, (v) no proceeding has been instituted under Section 4042 of ERISA to terminate such Parent Benefit Plan, (vi) no liability to the PBGC has been incurred (other than with respect to required premium payments), (vii) no withdrawal liability, within the meaning of Section 4201 of ERISA, has been incurred, which withdrawal liability has not been satisfied, and (viii) the assets of the Parent Benefit Plan equal or exceed the actuarial present value of the benefit liabilities, within the meaning of Section 4041 of ERISA, under the Parent Benefit Plan, based upon reasonable actuarial assumptions and the asset valuation principles established by the PBGC. (h) Neither the Parent nor Parent ERISA Affiliates contributes or has an obligation to contribute, and has not within six years prior to the date of this Agreement contributed or had an obligation to contribute to, a multiemployer plan within the meaning of Section 3(37) of ERISA.

Employee Benefit Plans; Employment Agreements. (a) The Parent's Disclosure Schedule lists all Each employee benefit plans plan (as defined in Section 3(d) of ERISA) and ), regardless of whether ERISA is applicable thereto, all other bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance or termination pay, medical or life insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plans, agreements or arrangements and other similar fringe or employee benefit plans, programs or arrangements, and any current or former employment or executive compensation or severance agreements, written or otherwise, for the benefit of, or relating to, any employee of the Parent, any trade or business (whether or not incorporated) which is a member of a controlled group including the Parent or which is under common control with the Parent (a "Parent ERISA Affiliate") within the meaning of section Section 414 of the Code, or any subsidiary of the Parent, to which the Parent, a Parent ERISA Affiliate, or any subsidiary is a party, with respect to which the Parent, a Parent ERISA Affiliate, or any subsidiary has or could have any obligation, as well as each plan with respect to which the Parent or a Parent ERISA Affiliate could incur liability under Section 4069 (if such plan has been or was terminated) or Section 4212(c) of ERISA were terminated (together, the "Parent Benefit Employee Plans"), excluding former agreements under which the Parent has no remaining obligations. Copies of each of the following, to the extent applicable, have been made available to the Company with respect to each Parent Benefit Plan: the most recent annual report (Form 5500) filed with the IRS, the plan document, the trust agreement, the most recent summary plan description if that is required by ERISA, the most recent actuarial report or valuation relating to each Benefit Plan subject to Title IV of ERISA, and the most recent determination letter issued by the IRS with respect to any Benefit Plan intended to be qualified under section 401 applicable law or registered or approved by a governmental agency or authority, has been so qualified, registered or approved by the appropriate governmental agency or authority, and nothing has occurred since the date of the Code. last qualification, registration or approval to adversely affect, or cause the appropriate governmental agency or authority to revoke, such qualification, registration or approval. 20 25 (b) With All contributions (including premiums) required by law or contract to have been made or approved by the Parent under or with respect to each the Parent Benefit Plan, no event has occurred and, to Employee Plans have been paid or accrued by the knowledge of Parent, there currently exists no condition or set of circumstances, in connection with which Parent or any of its subsidiaries could be subject to any liability under the terms of such Parent Benefit Plan, ERISA, the Code or any other applicable law which would have a Parent Material Adverse Effect. (c) Each Parent Benefit Plan intended to be qualified under section 401 of the Code (i) satisfies in form the requirements of such section except to the extent amendments are not required by law to be made until a date after the Effective Time, (ii) has received a favorable determination letter from the IRS regarding such qualified status, and (iii) has not, since receipt of the most recent favorable determination letter, been amended in a way that would adversely affect its qualified status. (d) There are no actions, suits, or claims pending (other than routine claims for benefits) or, to the knowledge of the Parent, threatened againstmaterial investigations, litigation or other enforcement actions against the Parent with respect toto any of the Parent Employee Plans. (d) There are no material actions, any suits or claims pending or, to the knowledge of the Parent, threatened by former or present employees of the Parent Benefit Plan (or its their beneficiaries) with respect to the Parent Employee Plans or the assets that could reasonably be expected to have a Parent Material Adverse Effector fiduciaries thereof (other than routine claims for benefits). (e) To the knowledge of the Parent's knowledge, there is no matter pending (other than routine qualification determination filings) condition or event has occurred with respect to any the Parent Benefit Employee Plans before the IRS, the U.S. Department of Labor, the PBGC which has or any other governmental authority. (f) All material contributions required could reasonably be expected to be made to Parent Benefit Plans pursuant to their terms and the provisions of ERISA, the Code, or any other applicable law have been timely made. (g) As to each Parent Benefit Plan subject to Title IV of ERISA, (i) there has been no event or condition which presents result in a significant risk of plan termination, (ii) no accumulated funding deficiency, whether or not waived, within the meaning of Section 302 of ERISA or section 412 of the Code has been incurred, (iii) no reportable event within the meaning of Section 4043 of ERISA (for which the disclosure requirements of Regulation section 4043.1 et seq., promulgated by the PBGC, have not been waived) has occurred within six years prior Material Adverse Effect to the date of this Agreement, (iv) no notice of intent to terminate such Parent Benefit Plan has been given under Section 4041 of ERISA, (v) no proceeding has been instituted under Section 4042 of ERISA to terminate such Parent Benefit Plan, (vi) no liability to the PBGC has been incurred (other than with respect to required premium payments), (vii) no withdrawal liability, within the meaning of Section 4201 of ERISA, has been incurred, which withdrawal liability has not been satisfied, and (viii) the assets of the Parent Benefit Plan equal or exceed the actuarial present value of the benefit liabilities, within the meaning of Section 4041 of ERISA, under the Parent Benefit Plan, based upon reasonable actuarial assumptions and the asset valuation principles established by the PBGCParent. (h) Neither the Parent nor Parent ERISA Affiliates contributes or has an obligation to contribute, and has not within six years prior to the date of this Agreement contributed or had an obligation to contribute to, a multiemployer plan within the meaning of Section 3(37) of ERISA.

Employee Benefit Plans; Employment Agreements. (a) The Parent's Section 3.11(a) of the Parent Disclosure Schedule lists as of the date hereof all employee benefit pension plans (as defined in Section 3(2) of ERISA), all material employee welfare plans, (as defined in Section 3(1) of ERISA) and all other material bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance and other similar fringe or employee benefit plans, programs or arrangements, and any current or former employment or executive compensation or severance agreements, written or otherwise, for the benefit of, or relating to, any employee group of the current or former employees of or consultants to Parent, any trade or business (whether or not incorporated) which is a member of a controlled group including the Parent or which is under common control with the Parent (a "Parent ERISA Affiliate") within the meaning of section Section 414 of the Code, or any subsidiary of Parent, as well as each plan with respect to which the Parent or a Parent ERISA Affiliate could would incur liability under Section 4069 (if such plan has been or was were terminated) or Section 4212(c) of ERISA (togetherall such plans, practices, and programs are referred to herein as the "Parent Benefit Employee Plans"), excluding former agreements under which the Parent has no remaining obligations. Copies of each of the following, to ." To the extent applicablerequested by the Company, there have been made available to the Company copies of (i) each such written Parent Employee Plan (other than those referred to in Section 4(b)(4) of ERISA), (ii) the most recent annual report on form 5500 series, with accompanying schedules and attachments, filed with respect to each Parent Benefit Plan: the most recent annual report Employee Plan required to make such a filing, and (Form 5500iii) filed with the IRS, the plan document, the trust agreement, the most recent summary plan description if required by ERISA, the most recent actuarial report or valuation relating to for each Benefit Parent Employee Plan subject to Title IV of ERISA. For purposes of this Section 3.11 (a) the term material, and the most recent determination letter issued by the IRS used with respect to any Benefit Plan intended Parent Employee Plan, shall mean that Parent or a Parent ERISA Affiliate has incurred or may reasonably be expected to be qualified under section 401 of the Codeincur obligations in an annual amount exceeding $1,000,000 with respect to such Parent Employee Plan. (b) With (i) None of the Parent Employee Plans promises or provides retiree medical or other welfare benefits to any person, and none of the Parent Employee Plans is a "multiemployer plan" as such term is defined in Section 3(37) of ERISA; (ii) there has been no "prohibited transaction," as such term is defined in Section 406 of ERISA and Section 4975 of the Code, with respect to each any Parent Benefit Employee Plan, no event has occurred and, to the knowledge which would result in any material liability of Parent, there currently exists no condition or set of circumstances, in connection with which Parent or any of its subsidiaries; (iii) all Parent Employee Plans are in compliance in all material respects with the requirements prescribed by any and all Laws (including ERISA and the Code), currently in effect with respect thereto (including all applicable requirements for notification to participants or the Department of Labor, IRS, PBGC or Secretary of the Treasury), and Parent and each of its subsidiaries could have performed all material obligations required to be performed by them under, are not in any material respect in default under or violation of, and have no knowledge of any default or violation by any other party to, any of the Parent Employee Plans; (iv) each Parent Employee Plan intended to qualify under Section 401(a) of the Code and each trust intended to qualify under Section 501(a) of the Code is the subject of a favorable determination letter from the IRS, and nothing has occurred which may reasonably be expected to impair such determination; (v) all contributions required to be made to any Parent Employee Plan pursuant to Section 412 of the Code, or the terms of the Parent Employee Plan or any collective bargaining agreement, have been made on or before their due dates; (vi) with respect to each Parent Employee Plan, no "reportable event" within the meaning of Section 4043 of ERISA (excluding any such event for which the 30 day notice requirement has been waived under the regulations to Section 4043 of ERISA) nor any event described in Section 4062, 4063 or 4041 of ERISA has occurred; and (vii) neither Parent nor any Parent ERISA Affiliate has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than liability for premium payments to the terms PBGC arising in the ordinary course), except where the failure of such Parent Benefit Plan, ERISA, any of the Code or any other applicable law which foregoing to be true would not have a Parent Material Adverse Effect. (c) Each Parent Benefit Plan intended to be qualified under section 401 Section 3.1l(c) of the Code Parent Disclosure Schedule sets forth as of the date hereof a true and complete list of each current or former officer or director of Parent, and of all other employees as a group who hold (i) satisfies in form any option to purchase Parent Common Stock as of the requirements date hereof, together with the number of shares of Parent Common Stock subject to such option, the option price of such section except option (to the extent amendments are not required by law determined as of the date hereof), whether such option is intended to be made until a qualify as an ISO, and the expiration date after the Effective Timeof such option, and (ii) has received a favorable determination letter from any other right, directly or indirectly, to acquire Parent Common Stock, together with the IRS regarding number of shares of Parent Common Stock subject to such qualified status, and right. Section 3.11 (iiic) has not, since receipt of the most recent favorable determination letterParent Disclosure Schedule also sets forth the total number of such ISOs, been amended in a way that would adversely affect its qualified statussuch nonqualified options and such other rights outstanding on the date hereof. (d) There are no actions, suits, or claims pending (other than routine claims for benefitsSection 3.11(d) or, to the knowledge of the Parent, threatened against, Parent Disclosure Schedule sets forth a true and complete list of: (i) all written employment agreements with officers or with respect to, any employees of Parent Benefit Plan or its assets that could reasonably be expected to have a Parent Material Adverse Effect. (e) To the knowledge of the Parent, there is no matter pending (other than routine qualification determination filings) with respect to any Parent Benefit Plans before the IRS, the U.S. Department of Labor, the PBGC or any other governmental authority. of its subsidiaries that provide for annual base salaries in excess of $250,000; (fii) All material contributions all agreements with consultants who are individuals obligating the Company or any of its subsidiaries to make annual cash payments in an amount exceeding $250,000; (iii) all severance agreements, programs and policies of Parent with or relating to its employees in each case with outstanding commitments exceeding $250,000, excluding programs and policies required to be made to Parent Benefit Plans pursuant to their terms and the provisions of ERISA, the Code, or any other applicable law have been timely mademaintained by law. (g) As to each Parent Benefit Plan subject to Title IV of ERISA, (i) there has been no event or condition which presents a significant risk of plan termination, (ii) no accumulated funding deficiency, whether or not waived, within the meaning of Section 302 of ERISA or section 412 of the Code has been incurred, (iii) no reportable event within the meaning of Section 4043 of ERISA (for which the disclosure requirements of Regulation section 4043.1 et seq., promulgated by the PBGC, have not been waived) has occurred within six years prior to the date of this Agreement, (iv) no notice of intent to terminate such Parent Benefit Plan has been given under Section 4041 of ERISA, (v) no proceeding has been instituted under Section 4042 of ERISA to terminate such Parent Benefit Plan, (vi) no liability to the PBGC has been incurred (other than with respect to required premium payments), (vii) no withdrawal liability, within the meaning of Section 4201 of ERISA, has been incurred, which withdrawal liability has not been satisfied, and (viii) the assets of the Parent Benefit Plan equal or exceed the actuarial present value of the benefit liabilities, within the meaning of Section 4041 of ERISA, under the Parent Benefit Plan, based upon reasonable actuarial assumptions and the asset valuation principles established by the PBGC. (h) Neither the Parent nor Parent ERISA Affiliates contributes or has an obligation to contribute, and has not within six years prior to the date of this Agreement contributed or had an obligation to contribute to, a multiemployer plan within the meaning of Section 3(37) of ERISA.

Employee Benefit Plans; Employment Agreements. (a) The Parent's Disclosure Schedule lists all Each employee benefit plans plan (as defined in Section 3(d) of ERISA) and ), regardless of whether ERISA is applicable thereto, all other bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, severance or termination pay, medical or life insurance, supplemental unemployment benefits, profit-sharing, pension or retirement plans, agreements or arrangements and other similar fringe or employee benefit plans, programs or arrangements, and any current or former employment or executive compensation or severance agreements, written or otherwise, for the benefit of, or relating to, any employee of the Parent, any trade or business (whether or not incorporated) which is a member of a controlled group including the Parent or which is under common control with the Parent (a "Parent ERISA Affiliate") within the meaning of section Section 414 of the Code, or any subsidiary of the Parent, to which the Parent, a Parent ERISA Affiliate, or any subsidiary is a party, with respect to which the Parent, a Parent ERISA Affiliate, or any subsidiary has or could have any obligation, as well as each plan with respect to which the Parent or a Parent ERISA Affiliate could incur liability under Section 4069 (if such plan has been or was terminated) or Section 4212(c) of ERISA were terminated (together, the "Parent Benefit Employee Plans"), excluding former agreements under which the Parent has no remaining obligations. Copies of each of the following, to the extent applicable, have been made available to the Company with respect to each Parent Benefit Plan: the most recent annual report (Form 5500) filed with the IRS, the plan document, the trust agreement, the most recent summary plan description if that is required by ERISA, the most recent actuarial report or valuation relating to each Benefit Plan subject to Title IV of ERISA, and the most recent determination letter issued by the IRS with respect to any Benefit Plan intended to be qualified under section 401 applicable law or registered or approved by a governmental agency or authority, has been so qualified, registered or approved by the appropriate governmental agency or authority, and nothing has occurred since the date of the Codelast qualification, registration or approval to adversely affect, or cause the appropriate governmental agency or authority to revoke, such qualification, registration or approval. (b) With All contributions (including premiums) required by law or contract to have been made or approved by the Parent under or with respect to each the Parent Benefit Plan, no event has occurred and, to Employee Plans have been paid or accrued by the knowledge of Parent, there currently exists no condition or set of circumstances, in connection with which Parent or any of its subsidiaries could be subject to any liability under the terms of such Parent Benefit Plan, ERISA, the Code or any other applicable law which would have a Parent Material Adverse Effect. (c) Each Parent Benefit Plan intended to be qualified under section 401 of the Code (i) satisfies in form the requirements of such section except to the extent amendments are not required by law to be made until a date after the Effective Time, (ii) has received a favorable determination letter from the IRS regarding such qualified status, and (iii) has not, since receipt of the most recent favorable determination letter, been amended in a way that would adversely affect its qualified status. (d) There are no actions, suits, or claims pending (other than routine claims for benefits) or, to the knowledge of the Parent, threatened againstmaterial investigations, litigation or other enforcement actions against the Parent with respect toto any of the Parent Employee Plans. (d) There are no material actions, any suits or claims pending or, to the knowledge of the Parent, threatened by former or present employees of the Parent Benefit Plan (or its their beneficiaries) with respect to the Parent Employee Plans or the assets that could reasonably be expected to have a Parent Material Adverse Effector fiduciaries thereof (other than routine claims for benefits). (e) To the knowledge of the Parent's knowledge, there is no matter pending (other than routine qualification determination filings) condition or event has occurred with respect to any the Parent Benefit Employee Plans before the IRS, the U.S. Department of Labor, the PBGC which has or any other governmental authority. (f) All material contributions required could reasonably be expected to be made to Parent Benefit Plans pursuant to their terms and the provisions of ERISA, the Code, or any other applicable law have been timely made. (g) As to each Parent Benefit Plan subject to Title IV of ERISA, (i) there has been no event or condition which presents result in a significant risk of plan termination, (ii) no accumulated funding deficiency, whether or not waived, within the meaning of Section 302 of ERISA or section 412 of the Code has been incurred, (iii) no reportable event within the meaning of Section 4043 of ERISA (for which the disclosure requirements of Regulation section 4043.1 et seq., promulgated by the PBGC, have not been waived) has occurred within six years prior Material Adverse Effect to the date of this Agreement, (iv) no notice of intent to terminate such Parent Benefit Plan has been given under Section 4041 of ERISA, (v) no proceeding has been instituted under Section 4042 of ERISA to terminate such Parent Benefit Plan, (vi) no liability to the PBGC has been incurred (other than with respect to required premium payments), (vii) no withdrawal liability, within the meaning of Section 4201 of ERISA, has been incurred, which withdrawal liability has not been satisfied, and (viii) the assets of the Parent Benefit Plan equal or exceed the actuarial present value of the benefit liabilities, within the meaning of Section 4041 of ERISA, under the Parent Benefit Plan, based upon reasonable actuarial assumptions and the asset valuation principles established by the PBGCParent. (h) Neither the Parent nor Parent ERISA Affiliates contributes or has an obligation to contribute, and has not within six years prior to the date of this Agreement contributed or had an obligation to contribute to, a multiemployer plan within the meaning of Section 3(37) of ERISA.