Common use of Employee Benefit Plans; ERISA Clause in Contracts

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a) of the Company Disclosure Schedule, there exist, as of the date hereof, no employment or consulting agreement, collective bargaining agreement or any bonus, pension, profit sharing, deferred or extra compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right or other stock-based incentive, retirement, vacation, severance, change in control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other plan, program, agreement, arrangement or understanding (whether or not legally binding) that is sponsored, maintained, contributed to or required to be contributed to, or has been entered into by the Company or any Company Subsidiary or any person or entity that, together with the Company and its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA, including without limitation any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA). (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Company Subsidiary, any Commonly Controlled Entity, any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Code. (k) Except as disclosed in Section 3.12(a) of the Company Disclosure Schedule, no increase in the compensation or benefits of officers or employees (including pursuant to any Benefit Plan) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understanding.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed set forth in Section 3.12(a3.15(a) of the Company Disclosure Schedule, there exist, Highland Schedule and as of the date hereof, no employment neither Highland nor any Subsidiary is a party to or consulting agreementhas or could have any liability, collective bargaining agreement contingent liability or obligation with respect to (i) any bonus"employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), (ii) any profit sharing, pension, profit sharing, deferred or extra compensation, incentive compensationbonus, stock ownershipoption, stock purchase, stock optionseverance, phantom stockretainer, stock appreciation right consulting, health, welfare or other stockincentive plan or agreement, including any post-based incentiveemployment benefits, retirementwhether pursuant to contract, arrangement, custom or informal understanding, which does not constitute an employee benefit plan, (iii) any material plan or policy providing for "fringe benefits" to its employees, including but not limited to vacation, severancepaid holidays, change in control personal leave, employee discount, educational benefit or similar programs, or (iv) any employment agreement (individually a"Benefit Plan", and collectively the "Benefit Plans"). (b) Highland has included correct and complete copies of (A) the Benefit Plans and all contracts relating thereto or to the funding thereof, (B) any employment, consulting or termination pay (agreements with respect to current, or other termination), disability, death benefit, hospitalization, medical, life insurance former employees or other insurance directors of Highland or any other Subsidiary to the extent any liability or obligation remains thereunder, (C) the most recent Internal Revenue Service determination letter relating to each Benefit Plan that is an employee pension benefit plan, program, agreement, arrangement or understanding as defined in Section 3(2) of ERISA (whether or not legally bindingthe "Employee Pension Benefit Plans") and that is sponsoredintended to be qualified under Section 401(a) of the Code, maintained, contributed (D) to or the extent required to be contributed tofiled, or the two most recent Annual Reports (Form 5500 Series) and accompanying schedules of each Benefit Plan, as filed with the Internal Revenue Service, (E) any summary plan descriptions relating to any Benefit Plan, (F) if applicable, the most recent audited financial statements of each Employee Pension Benefit Plan and (G) the two most recent actuarial valuation reports for each Employee Pension Benefit Plan for which such reports were prepared in Section 3.15 (b) of the Highland Schedule. Highland has been entered into also included an accurate description of any Benefit Plan that is not in written form in Section 3.15(b) of the Highland Schedule. (c) Highland and each Subsidiary has received, with respect to each of the Employee Pension Benefit Plans which is intended to qualify under Section 401(a) of the Code, a favorable determination letter issued by the Company Internal Revenue Service that covers all amendments to the plan for which the remedial amendment period (within the meaning of Section 401(b) of the Code and applicable regulations) has expired, and no events, actions or failures to act, have occurred which would adversely affect the qualification of any such Employee Pension Benefit Plan or result in a tax under Section 511 of the Code. Neither Highland, any Subsidiary nor any entity which is part of a group which includes Highland or any Company Subsidiary or any person or entity that, together with the Company and its Subsidiaries, which is treated as a single employer under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) 414 of the Code have been the subject of determination letters from the Internal Revenue Service (a "Controlled Group Member") contributes to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA, including without limitation any "multiemployer plan" (", as defined in Section 4001(a)(3) of ERISA, or has had a complete or partial withdrawal from any such multiemployer plan, the liability for which remains unsatisfied. Each of the Benefit Plans has been administered in all material respects in accordance with its terms, the requirements of ERISA and any other applicable law. (d) All reports and information required to be filed with the United States Department of Labor, Internal Revenue Service or Pension Benefit Guaranty Corporation ("PBGC"), or distributed to plan participants and their beneficiaries, which if not timely filed or distributed would result in any liability to Highland or any Subsidiary with respect to any Benefit Plan, have been timely filed or distributed. With respect to each Benefit Plan for which an Annual Report had been filed, no change has occurred with respect to the matters covered by the most recent Annual Report since the date thereof which would result in any liability to Highland or any Subsidiary. (e) None of the Employee Pension Benefit Plans (or any pension plan maintained by a Controlled Group Member) which is subject to Title IV of ERISA have (A) completely or partially terminated or (B) been the subject of a "reportable event" as defined in Section 4043 of ERISA, if any such event would result in any liability to Highland or any Subsidiary. (f) No proceedings by the PBGC to terminate pursuant to Subtitle C of Title IV of ERISA any Employee Pension Benefit Plan of Highland (or any pension plan maintained by a Controlled Group Member) have been instituted or threatened and no event has occurred or condition exists which might constitute grounds under Section 4042 of ERISA for the termination of or the appointment of a trustee to administer any such plan. No material liability under Title IV of ERISA has been incurred by Highland or any Subsidiary with respect to an Employee Pension Benefit Plan (or any pension plan maintained by a Controlled Group Member) and none of Highland, any Subsidiary or any Controlled Group Member has engaged in (or is a successor to an entity that has engaged in) a transaction for which Highland or any Subsidiary would have liability under Section 4069 or 4212(c) of ERISA. Except as set forth in Section 3.15(f) of the Highland Schedule, none of the Employee Pension Benefit Plans (or any pension plan of a Controlled Group Member) which is a defined benefit pension plan has incurred any "accumulated funding deficiency" (whether or not waived), as that term is defined in Section 412 of the Code, and the fair market value of the assets held to fund each such plan equals or exceeds the actuarial present value (based on the actuarial assumptions used by the actuary of the plan for purposes of determining the contributions for such plan) of all accrued benefits, both vested and nonvested, under such plan. (g) Except as set forth in Section 3.12(e3.15(g) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this AgreementHighland Schedule, no current or former employee, officer, consultant or director all contributions for all periods ending prior to the Closing Date (including periods from the first day of the Company or any Company Subsidiary current plan year to the Closing Date) will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant made prior to the terms of the Benefit Plans, Closing Date by Highland or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company its Subsidiary, the Surviving Corporation or any other person as applicable, in the event that the excise tax of Section 4999(a) of the Code is imposed on such personaccordance with past practice. (h) No Benefit Plan provides benefits, including without limitation death There have been no "prohibited transactions" (as such term is defined in Section 4975 of the Code or medical benefits (whether or not insured), in Part 4 of Subtitle B of Title I of ERISA) with respect to current any Benefit Plan as to which Highland or former employees, officers, consultants any Subsidiary may have any liability. No penalty or directors tax for which Highland or any of its Subsidiaries may be liable has been imposed under Section 502(i) of ERISA or Section 4975 of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension PlanCode. (i) There are no pending orpending, or to the Company's knowledgebest knowledge of Highland threatened, threatened or anticipated claims by or on behalf of any Benefit Plan, or by any employee or beneficiary covered under any such Benefit Plan, which allege a breach of fiduciary duties or violations of other applicable state or federal law which may result in liability on the part of Highland or any Subsidiary or result in any decrease in the assets of any Benefit Plan under ERISA or otherwise involving any Benefit Plan (other than routine and immaterial law, nor, to Highland's best knowledge, is there any basis for any such claim. Highland will notify Xxxxxxx in writing of any such threatened or pending claims for benefits)arising after the date hereof but before the Effective Time. (j) Neither Except as set forth in Section 3.15(j) of the Company Highland Schedule, neither Highland nor any Company SubsidiarySubsidiary has any obligation to provide, or liability or contingent liability with respect to, any Commonly Controlled Entitypost- employment benefits for any current or former employee under any "welfare benefit plan" as defined in Section 3(l) of ERISA, any other than for group health plan continuation coverage required under Part 6 of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B Title I of the Code.ERISA (k) Except as disclosed All expenses and liabilities relating to all of the Benefit Plans described in Section 3.12(a3.15(k) of the Company Disclosure Highland Schedule have been, and will on the Closing Date, be fully and properly accrued on Highland's books and records, to the extent required by generally accepted accounting principles. (l) Except as set forth in Section 3.15(l) of the Highland Schedule, none of the assets of any Benefit Plan are invested in employer securities or employer real property. (m) There has been no increase in act or omission that would impair the compensation ability of Highland or benefits of officers any Subsidiary (or employees (including pursuant any successor thereto) to amend or terminate unilaterally any Benefit Plan. (n) made since December 31There have been no acts or omissions by Highland or any Subsidiary which have given rise to or may give rise to fines, 2000 is customary on a periodic basis penalties, taxes or required by related charges under Section 502 of ERISA or Chapters 43, 47, 68 and 100 of the Code for which Highland or any agreement or understandingSubsidiary may be liable.

Employee Benefit Plans; ERISA. (a) Section 6.12(a) of the Company Disclosure Schedule includes a complete list of each material employee benefit plan, program or policy providing benefits to any current or former employee, officer or trustee of the Company, the FUMI Share Trust or any of their respective subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by the Company, the FUMI Share Trust or any of their respective subsidiaries or to which the Company, the FUMI Share Trust or any of their respective subsidiaries contributes or is obligated to contribute, including any employee welfare benefit plan within the meaning of Section 3(1) of ERISA, any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any material bonus, incentive, deferred compensation, vacation, stock purchase, stock option, severance, employment, change of control or fringe benefit agreement, plan, program or policy (collectively, the "COMPANY PLANS"). (b) With respect to each Company Plan, the Company, the FUMI Share Trust and their respective subsidiaries have delivered or made available to Gotham or its representa- tives a true, correct and complete copy of: (i) all plan documents and trust agreements; (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) the current summary plan description, if any; (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; and (vi) the most recent determination letter from the IRS, if any. (c) Except as ----------------------------- disclosed set forth in Section 3.12(a6.12(c) of the Company Disclosure Schedule, as of the date hereof, (i) each of the Company, the FUMI Share Trust and their respective subsidiaries has no employees, (ii) all Company Plans have been terminated without obligation or other liability to the Company, the FUMI Share Trust, their respective subsidiaries (and each of the forgoing persons' respective successors and assigns) or to any person or governmental entity, (iii) there existare no employment agreements currently existing to which the Company, the FUMI Share Trust or their respective subsidiaries is a party, (iv) there have been no employment agreements to which the Company, the FUMI Share Trust or each of their respective subsidiaries was a party that have not been terminated pursuant to their terms, and (v) all obligations of such persons under any such terminated employment agreements have been satisfied in full. Further, except as set forth in Section 6.06(a) of the Company Disclosure Schedule, as of the date hereof, no employment neither the Company, the FUMI Share Trust nor their respective subsidiaries has any obligations or consulting agreement, collective bargaining agreement or any bonus, pension, profit sharing, deferred or extra compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right or other stock-based incentive, retirement, vacation, severance, change liabilities in control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other plan, program, agreement, arrangement or understanding (whether or not legally binding) that is sponsored, maintained, contributed to or required to be contributed to, or has been entered into by the Company or any Company Subsidiary or any person or entity that, together with the Company and its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit respect of any --------------- current or former employees, officers, consultants or directors of employees that the Company or any Company Subsidiary (collectivelyCompany, the "Benefit Plans"). Since FUMI Share Trust or their respective subsidiaries may have employed prior to the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Plandate hereof. (d) All Benefit No Company Plan is intended to be qualified within the meaning of Section 401(a) of the Code. (e) Except as would not reasonably be expected to have a Company Material Adverse Effect: (i) the Company, the FUMI Share Trust and their respective subsidiaries have complied, and are now in compliance with, all provisions of ERISA, the Code and all laws and regulations applicable to the Company Plans that are and each Company Plan has been administered in all material respects in accordance with its terms; (ii) none of the Company, the FUMI Share Trust and their respective subsidiaries nor, to the knowledge of the Company, the FUMI Share Trust or their respective subsidiaries, any other person, including any fiduciary, has engaged in any "employee pension benefit plansprohibited transaction" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) 4975 of the Code have been the subject or Section 406 of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(aERISA), respectively, which could subject any of the CodeCompany Plans or their related trusts, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor the FUMI Share Trust or any Company Subsidiaryof their respective subsidiaries, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA, including without limitation any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA). (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current tax or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance penalty imposed under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) 4975 of the Code is imposed on such person. or Section 502 of ERISA; and (hiii) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There there are no pending or, to the Company's, the FUMI Share Trust's or their respective subsidiaries' knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefitsbenefits in the ordinary course), lawsuits or arbitrations that have been asserted or instituted against the Company Plans that could reasonably be expected to result in any liability of the Company, the FUMI Share Trust or any of their respective subsidiaries to any Company Plan participant, to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Multiemployer Plan or any Company Plan. (jf) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby shall (either alone or in conjunction with any other event) result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any material payment or benefit to any current or former employee, officer or trustee of the Company, the FUMI Share Trust or any of their respective subsidiaries. (g) No Company Plan is a Multiemployer Plan and neither of the Company nor any Company Subsidiaryof its subsidiaries has at any time since October 1, 1998, contributed to or been obligated to contribute to, any Commonly Controlled Entity, any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the CodeMultiemployer Plan. (k) Except as disclosed in Section 3.12(a) of the Company Disclosure Schedule, no increase in the compensation or benefits of officers or employees (including pursuant to any Benefit Plan) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understanding.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a3.9(a) of the Company Disclosure ScheduleSchedule lists all of the material Company Benefit Plans. For each material Company Benefit Plan, there exist, as of prior to the date hereof, no employment or consulting agreement, collective bargaining agreement or any bonus, pension, profit sharing, deferred or extra compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right or other stock-based incentive, retirement, vacation, severance, change in control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other plan, program, agreement, arrangement or understanding (whether or not legally binding) that is sponsored, maintained, contributed to or required to be contributed to, or has been entered into by the Company or any Company Subsidiary or any person or entity that, together with the Company and its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent truecorrect and complete copies or forms of the following, complete and correct copies of as applicable: (i) each all such Company Benefit Plan Plans (or, including all amendments thereto) to the extent in the case of any unwritten Benefit Plans, descriptions thereof), writing; (ii) written summaries of any such Benefit Plan not in writing; (iii) all related trust agreements, insurance contracts or other funding vehicles; (iv) the three most recent annual reports on report (Form 5500 5500) filed with the Internal Revenue Service with respect and most recent actuarial reports and financial statements; (v) the most recent determination or opinion letter from the Internal Revenue Service; and (vi) to each Benefit Plan (if any such report was required)the extent required by applicable Law, plus schedules related thereto, (iii) the most recent summary plan description for each and any summaries of material modification. (b) Each Company Benefit Plan for which that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service and, to the Company’s Knowledge, nothing has occurred that would adversely affect any such summary plan description is required qualification or tax exemption of any such Company Benefit Plan. Since December 31, 2017, each Company Benefit Plan has been established and administered in compliance with its terms and with ERISA, the Code and other applicable Laws, in each case, except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, a material Liability or loss to the Company Entities, taken as a whole. (together with all Summaries c) During the previous six (6) years, none of Material Modification issued with respect theretothe Company Entities have maintained, sponsored, participated in or contributed to (or been obligated to maintain, sponsor, participate in or contribute to), (ivi) each trust agreement and group annuity contract relating a plan which is subject to any Benefit Plan Section 412 of the Code or Section 302 or Title IV of ERISA or (if any such report was requiredii) and a “multiemployer plan” as defined in Section 3(37) of ERISA. None of the Company Entities maintains, sponsors, participates in or contributes to or is obligated to contribute to (v1) all material contracts and employee communications relating to each Benefit Plana multiple employer plan as described in Section 413(c) of the Code or (2) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA. (d) All None of the Company Entities, any Company Benefit Plans that are "employee pension benefit plans" Plan or, to the Company’s Knowledge, any trustee, administrator or other third-party fiduciary and/or party-in-interest thereof, has engaged in any breach of fiduciary responsibility or any “prohibited transaction” (as such term is defined in Section 3(2406 of ERISA or Section 4975 of the Code) to which Section 406 of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) ERISA or Section 4975 of the Code have been applies and which could subject the subject of determination letters from the Internal Revenue Service Company or any ERISA Affiliate to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, any tax or penalty on prohibited transactions imposed by Section 4975 of the Code, a truein each case, complete except as has not resulted in and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would not reasonably be expected to adversely affect its qualification result in, individually or materially increase its costsin the aggregate, material Liability or loss to the Company Entities (taken as a whole). (e) Neither No material Company Benefit Plan is maintained outside the Company, nor jurisdiction of the United States or covers any employees or other service providers of any Company Subsidiary, nor Entity who reside or work outside of the United States on behalf of any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA, including without limitation any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA)Company Entity. (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge’s Knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits) by, on behalf of or against any Company Benefit Plan or any trust related thereto, and no audit or other proceeding by a Governmental Authority is pending or, to the Company’s Knowledge, threatened related to any Company Benefit Plan, in each case, except as has not resulted in and would not reasonably be expected to result in, individually or in the aggregate, material Liability or loss to the Company Entities (taken as a whole). (jg) Neither Except as required by applicable Law or through the end of the month in which coverage is terminated, no material Company Benefit Plan provides retiree or post-employment medical or life insurance benefits to any Person, and no Company Entity has any obligation to provide such benefits other than any payment or reimbursement of COBRA premiums as part of a severance benefit. (h) None of the execution and delivery hereof, stockholder or other approval hereof or the consummation of the Merger could, either alone or in combination with another event, (i) entitle any Company Service Provider to any material payment, (ii) accelerate the time of payment or vesting, or materially increase the amount, of compensation due to any Company Service Provider or (iii) directly or indirectly require the Company nor to transfer or set aside any assets to fund any benefits under any Company SubsidiaryBenefit Plan. No Company Entity has any obligation to gross-up, indemnify or otherwise reimburse any Commonly Controlled Entity, Company Service Provider for any of the Benefit Plans, any trust created thereunder nor any trustee Tax incurred by such individual under Section 409A or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B 4999 of the Code. (k) Except as disclosed in Section 3.12(a) of the Company Disclosure Schedule, no increase in the compensation or benefits of officers or employees (including pursuant to any Benefit Plan) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understanding.

Employee Benefit Plans; ERISA. (a) Schedule 7.14(a) includes a complete list of all Employee Benefit Plans and all Employment Agreements. (b) Except as ----------------------------- disclosed in Section 3.12(aset forth on Schedule 7.14(b) of the Company Price Disclosure Schedule, there existwith respect to each Plan, as the Price Entities have delivered or made available to NGP a true, correct and complete copy of: (i) each writing constituting a part of such Plan, including all plan documents, employee communications, benefit schedules, trust agreements, and insurance contracts and other funding vehicles; (ii) the date hereofmost recent Annual Report (Form 5500 Series) and accompanying schedule, no employment or consulting agreementif any; (iii) each final summary plan description and any material modifications thereto, collective bargaining agreement or if any bonus(in each case, pension, profit sharing, deferred or extra compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right or other stock-based incentive, retirement, vacation, severance, change in control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other plan, program, agreement, arrangement or understanding (whether or not legally binding) that is sponsored, maintained, contributed to or required to be contributed tofurnished under ERISA); (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; and (vi) the most recent determination letter from the IRS, if any. The Price Entities have delivered or has been entered into by the Company or any Company Subsidiary or any person or entity thatmade available to NGP a true, together with the Company correct and its Subsidiaries, is treated complete copy of each Employment Agreement. Except as a single employer under Section 414(b), (c), (mset forth on Schedule 7.14(b) or (o) of as specifically provided in the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of foregoing documents delivered or made available as provided aboveto NGP, there are no amendments to any Plan or Employment Agreement that have been no adoptions adopted or approved nor has any of the Price Entities undertaken to make any such amendments of or to adopt or approve any plans, and no adoptions new Plan or amendments of plans are contemplated except to conform the plans to changes in applicable lawsEmployment Agreement. (bc) Schedule 7.14(c) identifies each Plan that is intended to be a "qualified plan" within the meaning of Section 401(a) of the Code ("QUALIFIED PLANS"). The Company IRS has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service issued a favorable determination letter with respect to each Benefit Qualified Plan (if and the related trust that has not been revoked, and, to the Knowledge of the Price Group, there are no existing circumstances and no events have occurred that could adversely affect the qualified status of any such report was requiredQualified Plan or the related trust. Except as set forth on Schedule 7.14(c) of the Price Disclosure Schedule, no trust funding any Plan is intended to meet the requirements of Code Section 501(c)(9), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (material contributions required to be made to any Plan by Applicable Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Plan, for any period through the date hereof have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Financial Statements. Except as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(aset forth on Schedule 7.14(d) of the Code have been Price Disclosure Schedule, each Employee Benefit Plan that is an employee welfare benefit plan under Section 3(1) of ERISA either (i) is funded through an insurance company contract and is not a "welfare benefit fund" with the subject meaning of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, Section 419 of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter Code or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs(ii) is unfunded. (e) Neither Except as set forth on Schedule 7.14(e) of the CompanyPrice Disclosure Schedule, with respect to each Employee Benefit Plan, the Price Entities have complied, and are now in compliance with all provisions of ERISA, the Code and all laws and regulations applicable to such Employee Benefit Plans, except as would not reasonably be expected to result in a Price Material Adverse Effect. Each Plan has been administered in accordance with its terms, except as would not reasonably be expected to result in a Price Material Adverse Effect. There is not now, nor to the knowledge of the Price Group, do any circumstances exist that could give rise to, any requirement for the posting of security with respect to a Plan or the imposition of any lien on the assets of the Price Entities under ERISA or the Code. (f) No Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, and none of the Price Entities or any of their subsidiaries, nor any Company Subsidiaryof their respective ERISA Affiliates, has, within the past six years, sponsored, maintained or contributed to, or been obligated to sponsor, maintain or contribute to, any "employee pension benefit plan" (within the meaning of Section 3(2) of ERISA) subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code. (g) Except as set forth on Schedule 7.14(g) of the Price Disclosure Schedule: (i) No Employee Benefit Plan is a Multiemployer Plan or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a "MULTIPLE EMPLOYER PLAN"); (ii) none of the Price Entities nor any of their respective ERISA Affiliate has Affiliates has, at any time maintainedduring the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan; and (iii) none of the Price Entities nor any of their respective ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full. With respect to each Employee Benefit Plan that is subject a Multiemployer Plan: (i) neither the Price Entities nor any of their ERISA Affiliates expect to Title IV withdraw in a "complete withdrawal" or "partial withdrawal" within the meaning of Section 4203 and 4205 of ERISA; and (ii) neither the Price Entities nor any of their ERISA Affiliates has received any notification, including without limitation nor has any "multiemployer plan" (as defined reason to believe, that any such Employee Benefit Plan is in Section 4001(a)(3) of ERISA)reorganization, has been terminated, is insolvent, or may reasonably be expected to be in reorganization, to be insolvent, or to be terminated. (fh) Except as would not reasonably be expected to result in a Price Material Adverse Effect, (i) there does not now exist, nor, to the knowledge of the Price Group, do any circumstances exist that could reasonably be expected to result in, any Controlled Group Liability that would be a liability of the Price Entities following the Closing and (ii) without limiting the generality of the foregoing, neither the Price Entities nor any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA. (i) Except as set forth in Section 3.12(eon Schedule 7.14(i) of the Company Price Disclosure Schedule and Schedule, the Price Entities have no liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health continuation coverage as contemplated required by Section 2.4 4980B of the Code or Part 6 of Title I of ERISA and at no expense to the Price Entities. (j) Except as set forth on Schedule 7.14(j) of the Price Disclosure Schedule, neither the execution and delivery of this AgreementAgreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (i) result in any payment (including, no current without limitation, severance, unemployment compensation, forgiveness of indebtedness or former employee, otherwise) becoming due to any officer, consultant director or director employee of the Company Price Entities under any Employee Benefit Plan or otherwise; (ii) increase any Company Subsidiary will be entitled to benefits otherwise payable under any additional compensation or benefits or Employee Benefit Plan; (iii) result in any acceleration of the time of payment or vesting or any other enhancement of any compensation amounts or benefits under benefits; (iv) require the funding of any trust or other funding vehicle; or (v) limit or prohibit the ability to amend, merge, terminate or receive a reversion of assets from any Employee Benefit Plan as a result of the TransactionsPlan, trust or other funding vehicle. (gk) None of the Price Entities nor any other person, including any fiduciary, has engaged in any "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Employee Benefit Plans or their related trusts, the Price Entities or any person that the Price Entities has an obligation to indemnify, to any tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA that would reasonably be expected to result in a Price Material Adverse Effect. (l) Except as disclosed in Section 3.12(gset forth on Schedule 7.14(1) of the Company Price Disclosure Schedule, there are no pending or threatened claims (other than claims for benefits in the deduction ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to Knowledge of the Price Group, no set of circumstances exists which may give rise to a claim or lawsuit, against the Plans, any fiduciaries thereof with respect to their duties to the Plans or the assets of any amount payable or benefit provided pursuant of the trusts under any of the Plans, in each case, which could reasonably be expected to result in any material liability of the Price Entities to the terms PBGC, the Department of Treasury, the Benefit PlansDepartment of Labor, any Multiemployer Plan, any Plan, any participant in a Plan, or any other arrangementparty. The Price Entities and each member of their respective business enterprises has complied with the Worker Adjustment and Retraining Notification Act and all similar state, obligation or agreement, whether written or oral, or otherwise will not be local and foreign laws. (m) All Employee Benefit Plans subject to disallowance under Section 280G or 162(mthe laws of any jurisdiction outside of the United States (i) have been maintained in all material respects in accordance with all applicable requirements, (ii) if they are intended to qualify for special tax treatment meet all requirements for such treatment, and (iii) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions. (n) Schedule 7.14(n) of the Code. Except as disclosed in Section 3.12(g) Price Disclosure Schedule sets forth a correct and complete list of the Company Disclosure Scheduletotal amounts due as of the date hereof, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person which may become payable in the event that future (whether actual or contingent or subject to the excise tax satisfaction of Section 4999(a) vesting requirements, performance goals or other conditions), under the terms of each long- or short-term incentive compensation, severance, stay bonus or retention bonus plan, program, arrangement or agreement of any of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of servicePrice Entities, other than (i) coverage mandated by applicable law or stock options granted under the AGC Option Plans and the award agreements thereunder, (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims severance required by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Company Subsidiary, any Commonly Controlled Entity, any Applicable Law in jurisdictions outside of the Benefit PlansUnited States, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Code. (k) Except as disclosed in Section 3.12(a) of the Company Disclosure Schedule, no increase in the compensation or benefits of officers or employees (including pursuant to any Benefit Planagreements that provide for the payment of such required severance, and (iii) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understandingseverance under employment agreements entered into with employees in jurisdictions outside of the United States.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(aSchedule 3.14(a) of the Company Disclosure ScheduleLetter sets forth a correct and complete list of all material Benefit Plans. Except as may be required by applicable Law, there existor as contemplated by this Agreement, as of the date hereof, no employment Company does not have any plan or consulting agreement, collective bargaining agreement legally binding commitment to amend or modify any bonus, pension, profit sharing, deferred existing Benefit Plan or extra compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right to establish or other stock-based incentive, retirement, vacation, severance, change in control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or implement any other plan, program, agreement, employee or retiree benefit or compensation plan or arrangement or understanding (whether or not legally binding) that is sponsored, maintained, contributed in such a manner as to or required materially increase the cost of such Benefit Plans to be contributed to, or has been entered into by the Company or any Company Subsidiary or any person or entity that, together with in the Company and its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable lawsaggregate. (b) The Company has With respect to the Benefit Plans, each to the extent applicable, correct and complete copies of the following have been delivered or made available or will be delivered or made available within 45 days after the execution and delivery of this Agreement to Parent true, complete and correct copies of by the Company: (i) each all Benefit Plan Plans (or, in the case of any unwritten Benefit Plans, descriptions thereofincluding all amendments and attachments thereto), ; (ii) written summaries of any Benefit Plan not in writing; (iii) all related trust documents; (iv) all insurance contracts or other funding arrangements; (v) the three two most recent annual reports on (Form 5500 5500) filed with the Internal Revenue Service with respect to each Benefit Plan Service; (if any such report was required), plus schedules related thereto, vi) the most recent determination letter from the Internal Revenue Service; (iiivii) the most recent summary plan description for and any summary of material modification thereto; and (viii) all material communications received from or sent to the Internal Revenue Service, the Pension Benefit Guaranty Corporation, the Department of Labor, or any other Governmental Entity (including a written description of any material oral communication) since January 1, 2010. (c) Each Benefit Plan that is intended to be qualified under Section 401(a) of the Code, and each trust that is related to a Benefit Plan and intended to be tax exempt under Section 501(a) of the Code, has been determined by the Internal Revenue Service to be qualified under Section 401(a) of the Code or exempt from taxation under Section 501(a) of the Code, as applicable, and, to the knowledge of the Company, nothing has occurred that would adversely affect the qualification or tax exemption of any such Benefit Plan or related trust. Except as would not reasonably be expected to have a Company Material Adverse Effect, each Benefit Plan for which such summary plan description is required (together and any related trust complies, and has been administered in compliance, with all Summaries of Material Modification issued with respect thereto)its terms, (iv) each trust agreement ERISA, the Code, and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Planother applicable Laws. (d) All No Benefit Plans that are "employee pension benefit plans" Plan (i) is a “multiemployer plan” (as defined in Section 3(23(37) or 4001(a)(3) of ERISA)(the "Pension Plans"ERISA), intended (ii) is subject to qualify ------------- under Sections 401(a) and 501(a) Part 3 of Subtitle B of Title I of ERISA or Title IV of ERISA or Section 412 of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(aor (iii) and 501(aprovides for post-retirement or other post-employment welfare benefits (other than health care continuation coverage as required by applicable Law), respectively, . (e) None of the CodeCompany, a true, complete and correct copy any of each such determination letter its Subsidiaries or any of its ERISA Affiliates has been provided to Parent, and no such determination letter has been revoked nor has involved in any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan transaction that would reasonably be expected to adversely affect cause the Company, any of its qualification Subsidiaries or, after the Effective Time, Parent or any of its Affiliates to be subject to liability under Section 4069 of ERISA, except as would not reasonably be expected to have a Company Material Adverse Effect. None of the Company, any of its Subsidiaries or any of its ERISA Affiliates has incurred (either directly or indirectly, including as a result of any indemnification obligation) any liability under or pursuant to Title I or IV of ERISA or the penalty, excise Tax or joint and several liability provisions of the Code relating to employee benefit plans, and no event, transaction or condition has occurred or exists that would reasonably be expected to result in any such liability to the Company, any of its Subsidiaries, any of its ERISA Affiliates or, after the Effective Time, Parent or any of its Affiliates, except as would not reasonably be expected to have a Company Material Adverse Effect. (f) The consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event (i) entitle any current or former employee, director, consultant or officer of the Company or any of the Company Subsidiaries to severance pay, unemployment compensation or accrued pension benefit or any other payment, (ii) accelerate the time of payment or vesting, or materially increase its costs. the amount of compensation due any such employee, consultant or officer, (eiii) Neither the Company, nor trigger any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to funding obligation under any Benefit Plan or impose any restrictions or limitations on the Company’s rights to administer, amend or terminate any Benefit Plan or (iv) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) that is subject could reasonably be construed, individually or in combination with any other such payment, to Title IV of ERISA, including without limitation any "multiemployer plan" constitute an “excess parachute payment” (as defined in Section 4001(a)(3) of ERISA). (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m280G(b)(1) of the Code). Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no No person is entitled to receive any "gross-up" payment indemnification from the Company or any Company Subsidiary, of its Subsidiaries as a result of the Surviving Corporation or any other person in the event that imposition of the excise tax of taxes required by Section 4999(a) 4999 of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated taxes required by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Company Subsidiary, any Commonly Controlled Entity, any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B Section 409A of the Code. (kg) Except as disclosed in Section 3.12(a) To the knowledge of the Company Disclosure ScheduleCompany, no increase in the compensation or benefits of officers or employees (including paid pursuant to any Benefit Plan) made since December 31Plan by the Company to any “service provider” (as such term is defined in Section 409A of the Code and the United States Treasury Regulations and Internal Revenue Service guidance thereunder), 2000 is customary on a periodic basis or required by any agreement or understandingviolates the requirements of Section 409A of the Code.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a) 5.21 of the Company Disclosure Schedule, there exist, Letter contains as of the date hereofof this Agreement a correct and complete list identifying each "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, no employment or consulting agreement, collective bargaining agreement or any as amended ("ERISA") and each other bonus, pension, profit sharing, deferred or extra compensation, incentive compensation, stock ownership, stock purchase, stock appreciation, restricted stock, stock option, phantom stock, stock appreciation right or other stock-based incentiveperformance, retirement, vacation, severance, change in control or termination pay (or other termination), disability, death benefit, employment, consulting, independent contractor, director, retention, hospitalization, fringe benefit, sick leave, salary continuation, medical, life insurance dental, vision, or other insurance or any other employee benefit plan, program, agreement, program or arrangement which is maintained or understanding (whether or not legally binding) that is sponsored, maintained, contributed to or required to be contributed to, or has been entered into to by the Company or any Company Subsidiary ERISA Affiliate or as to which the Company or any Company ERISA Affiliate has any direct or indirect, actual or contingent liability ("Benefit Plans"). The Company has delivered or made available to Parent true and complete copies of (i) each Benefit Plan (including all amendments since the last restatement), (ii) the annual report (Form 5500-series) filed with respect to each Benefit Plan (if such report was required) for each of the three most recent plan years for which such reports were filed, (iii) the most recent summary plan description (and any summary of material modifications since the most recent summary plan description), if any, for each Benefit Plan, (iv) the most recent determination letter (or, if such plan is a prototype or volume submitter plan document that has been pre-approved by the Internal Revenue Service, an opinion letter) issued to each Benefit Plan that is intended to be qualified under Section 401(a) of the Code, and (v) each trust agreement or insurance contract with respect to each Benefit Plan. (b) No Benefit Plans are subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA or Section 412 of the Code. Neither the Company nor any person which is (or entity thatat the relevant time was) a member of a "controlled group of corporations" with, together "under common control" with, or a member of an "affiliated service group" with the Company and its Subsidiaries, is treated as a single employer under such terms are defined in Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of has ever maintained or contributed to or been required to contribute to, or had any --------------- current direct or former employeesindirect, officers, consultants actual or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service contingent liability with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA. (i) The Company and all Benefit Plans are in material compliance with the applicable provisions of ERISA and the Code; (ii) each Benefit Plan has been operated and administered in all material respects in accordance with its terms and applicable Law; (iii) with respect to each Benefit Plan, including without limitation all contributions to, and payments from, such Benefit Plan that are required to have been made under the terms of the Benefit Plan or applicable Law have been timely made, and no such plan has incurred an accumulated funding deficiency, whether or not waived; (iv) with respect to all Benefit Plans, there are no investigations by governmental entities or claims pending or, to the best knowledge of the Company, threatened (other than routine claims for benefits); (v) there have been no prohibited transactions under the Code or ERISA with respect to any "multiemployer plan" Benefit Plans; (vi) with respect to all Benefit Plans that are welfare plans (as defined in ERISA Section 4001(a)(33(1)), all such plans have complied with the COBRA continuation coverage requirements of Code Section 4980B (to the extent applicable); (vii) there are no lawsuits, actions or proceedings pending or, to the best knowledge of ERISA)the Company, threatened, against or involving any Benefit Plan, and (viii) with respect to each Benefit Plan, all reports, returns and similar documents required to be filed with any governmental entity or distributed to any Benefit Plan participant, beneficiary or alternate payee have been duly and timely filed or distributed. (d) Each Benefit Plan intended to qualify under Section 401 of the Code, is so qualified. (e) The Company has no liability with respect to any plans providing benefits on a voluntary basis with respect to employees employed outside the U.S. (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any No Benefit Plan as a result provides for medical, life insurance or other welfare benefits following retirement or other termination of the Transactionsemployment (other than COBRA coverage and any similar coverage mandated by state law). (g) Except as disclosed in Section 3.12(g) The consummation of the Company Disclosure Scheduletransactions contemplated by this Agreement will not: (i) entitle any individual to severance pay, the deduction of (ii) increase or accelerate compensation due to any amount payable individual or benefit provided pursuant (iii) result in or satisfy a condition to the terms payment of the Benefit Planscompensation that would, or in combination with any other arrangementpayment, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under result in an "excess parachute payment" within the meaning of Section 280G or 162(m280G(b) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Company Subsidiary, any Commonly Controlled Entity, any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Code. (k) Except as disclosed in Section 3.12(a) of the Company Disclosure Schedule, no increase in the compensation or benefits of officers or employees (including pursuant to any Benefit Plan) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understanding.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a) of the Company Disclosure Schedule, there existSchedule sets forth a correct and complete list of: (i) all “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as of the date hereof, no amended (“ERISA”)) and (ii) all employment or consulting agreementother compensation agreements, collective bargaining agreement or any bonus, pension, profit sharing, deferred bonus or extra compensation, other incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right equity or other stockequity-based incentivecompensation, retirementdeferred compensation, change in control, severance, pension benefit, welfare benefit, sick leave, vacation, severancesalary continuation, change in control or termination pay (or other termination), disability, death benefit, hospitalization, medicalhealth, life insurance insurance, educational assistance and other employee benefit plans, policies, agreements or other insurance or any other plan, program, agreement, arrangement or understanding arrangements (whether or not legally bindingx) that is sponsored, maintained, contributed which are applicable to or required to be contributed to, or has been entered into by the Company or any Company Subsidiary or any person or entity that, together with the Company and its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, individual consultants or directors of the Company or any of its Subsidiaries, (y) with respect to which the Company Subsidiary or any of its Subsidiaries has any obligation or liability, contingent or otherwise, or (z) for which the Company or any of its Subsidiaries could incur liability under the Code or ERISA, including Section 4069 or 4212(c) of ERISA (collectively, the "Benefit “Company Plans"”). Since Section 3.12(a) of the ------------- versions Company Disclosure Schedule separately sets forth each Company Plan which is subject to Title IV of documents delivered ERISA and each “multiemployer plan”, as defined in Section 3(37) of ERISA to which the Company or made available as provided abovea Subsidiary contributes (a “Multiemployer Plan”), there have or is or has been no adoptions subject to Sections 4063 or amendments 4064 of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable lawsERISA. (b) The Correct and complete copies of the following documents with respect to each of the Company has Plans (other than a Multiemployer Plan) have been delivered or made available to Parent true, complete and correct copies of by the Company to the extent applicable: (i) each Benefit Plan (orany plans and related trust documents, in the case of any unwritten Benefit Plansinsurance Contracts or other funding arrangements, descriptions thereof), and all amendments thereto; (ii) the three most recent annual reports on Form Forms 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus and all schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto)actuarial report, if any; (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and the most recent Internal Revenue Service determination letter; (v) the most recent summary plan descriptions; and (vi) written summaries of all non-written Company Plans. Neither the Company nor any of its Subsidiaries has any commitment (I) to create, incur liability with respect to or cause to exist, any other employee benefit plan, program or arrangement, (II) to enter into any contract or agreement to provide compensation or benefits to any individual or (III) to modify, change or terminate any Company Plan, other than with respect to a modification, change or termination required by applicable Law. (c) Company Plans have been maintained, in all material contracts respects, in accordance with their terms and employee communications relating with all applicable provisions of ERISA, the Code and other Law. To the extent any representation in this Section 3.12 applies to each Benefit a Multiemployer Plan, such representation is only made to the extent of the knowledge of the Company. (d) All Benefit Company Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) Section 401 or other tax-favored treatment under of Subchapter B of Chapter 1 of Subtitle A of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified qualified, and are any trusts intended to be exempt from federal income taxes taxation under Sections 401(a) the Code are so exempt and 501(a), respectively, such Company Plans have received a favorable determination letter from the IRS to that effect. Nothing has occurred with respect to the operation or terms of the Code, a true, complete and correct copy Company Plans referred to in this subsection that could cause the loss of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costsexemption, or the imposition of any material liability, penalty or tax under ERISA or the Code. (e) Neither All contributions required to have been made by the Company, nor Company or any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute of its Subsidiaries (without regard to any Benefit Plan that is waivers granted under Section 412 of the Code), have been timely made, and no accumulated funding deficiencies exist in any of the Company Plans subject to Title IV of ERISAERISA or Section 412 of the Code. Neither the Company nor any of its Subsidiaries has incurred any liability under, arising out of or by operation of Title IV of ERISA (other than liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course), including without limitation any "multiemployer liability in connection with (i) the termination or reorganization of any employee benefit plan subject to Title IV of ERISA or (ii) the withdrawal from any Multiemployer Plan, and no fact or event exists that could give rise to any such liability. Under each Company Plan which is a single employer pension plan" , as of the last day of the most recent plan year ended prior to the date of this Agreement, the actuarially determined present value of all “benefit liabilities”, within the meaning of Section 4001(a)(16) of ERISA (as defined determined on the basis of the actuarial assumptions contained in Section 4001(a)(3) such Company Plan’s most recent actuarial valuation), did not exceed the then current value of ERISA)the assets of such Company Plan, and there has been no material change in the financial condition of such Company Plan since the last day of the most recent plan year. (f) Except as set forth in Section 3.12(e) of There are no pending material actions, claims or lawsuits arising from or relating to the Company Disclosure Schedule and as contemplated by Section 2.4 Plans (other than routine benefit claims), nor does Company have any knowledge of this Agreement, no current facts that could form the basis for any such material claim or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactionslawsuit. (g) Except as disclosed set forth in Section 3.12(g) of the Company Disclosure Schedule, neither the deduction execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment becoming due to any employee, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment or vesting of any amount such benefits under any Company Plan, (iv) require any contributions or payments to fund any obligations under any Company Plan or (v) limit or restrict the right of the Company or any of its Subsidiaries or, after the consummation of the transactions contemplated hereby, the Parent, to merge, amend or terminate any of the Company Plans. (h) The parties acknowledge that certain payments have been made or are to be made and certain benefits have been granted or are to be granted according to employment compensation, severance and other employee benefit plans of the Company and its Subsidiaries, including the Company Plans (collectively, the “Arrangements”) to certain holders of Company common stock and other securities of the Company (the “Covered Securityholders”). The Company represents and warrants that all such amounts payable under the Arrangements (i) are being paid or granted as compensation for past services performed, future services to be performed, or future services to be refrained from performing, by the Covered Securityholders (and matters incidental thereto) and (ii) are not calculated based on the number of Shares tendered or to be tendered into the Offer by the applicable Covered Securityholder. The Company also represents and warrants that (i) the adoption, approval, amendment or modification of each Arrangement since the discussions relating to the transactions contemplated hereby between the Company and Parent began has been approved as an employment compensation, severance or other employee benefit arrangement solely by independent directors of the Company in accordance with the requirements of Rule 14d-10(d)(2) under the Exchange Act and the instructions thereto and (ii) the “safe harbor” provided pursuant to the terms Rule 14d-10(d)(2) is otherwise applicable thereto as a result of the Benefit Planstaking prior to the execution of this Agreement of all necessary actions by the Company Board of Directors, the Compensation Committee of the Company Board of Directors or its independent directors. A true and complete copy of any resolutions of any committee of the Company Board of Directors reflecting any approvals and actions referred to in the preceding sentence and taken prior to the date of this Agreement has been provided to Parent prior to the execution of this Agreement. (i) Any individual who performs services for the Company or any of its Subsidiaries (other arrangement, obligation than through a Contract with an organization other than such individual) and who is not treated as an employee of the Company or agreement, whether written or oral, or otherwise will any of its Subsidiaries for U.S. federal income tax purposes by the Company is not be subject to disallowance under an employee for such purposes. (j) Except as set forth on Section 280G or 162(m3.12(j) of the CodeCompany Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to a collective bargaining or other labor union Contract applicable to Persons employed by the Company or any of its Subsidiaries (each a “Company Collective Bargaining Agreement”). Except As of the date of this Agreement, except as disclosed in set forth on Section 3.12(g3.12(j) of the Company Disclosure Schedule, no person collective bargaining agreement or other labor union contract is entitled to receive any "gross-up" payment from being negotiated or renegotiated the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), its Subsidiaries with respect to current or former employees, officers, consultants or directors of persons employed by the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement of its Subsidiaries, and there are no organizational campaigns, petitions or other termination unionization activities seeking recognition of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither a collective bargaining unit which could affect the Company nor any Company Subsidiary, any Commonly Controlled Entity, or any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Codeits Subsidiaries. (k) Except as disclosed set forth in Section 3.12(a3.12(k) of the Company Disclosure Schedule, there are no increase (i) strikes, work stoppages, slowdowns, lockouts or arbitrations, (ii) material grievances or other labor disputes pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against or involving the Company or any of its Subsidiaries involving any employee of the Company or any of its Subsidiaries or (iii) complaints, charges or claims against the Company or any of its Subsidiaries pending or, to the knowledge of the Company, threatened that could be brought or filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment or failure to employ by the Company or any of its Subsidiaries, of any individual. Except as set forth in Section 3.12(k) of the Company Disclosure Schedule, there are no unfair labor practice charges pending or, to the knowledge of the Company, threatened by or on behalf of any employee or former employee of the Company or any of its Subsidiaries. (l) The Company and its Subsidiaries are in compliance with all Laws relating to the employment of labor, including all such Law relating to wages, hours, the Worker Adjustment and Retraining Notification Act and any similar state or local “mass layoff” or “plant closing” law (“WARN”), collective bargaining, discrimination, civil rights, safety and health, workers’ compensation and the collection and payment of withholding and/or social security taxes and any similar tax, except for immaterial non-compliance. Except as set forth in Section 3.12(l) of the Company Disclosure Schedule, there will not have been any “mass layoff” or benefits “plant closing” (as defined by WARN) with respect to the Company or any of officers its Subsidiaries within the six (6) months prior to the Closing. (m) Except as set forth in Section 3.12(m) of the Company Disclosure Schedule, none of the Company Plans in effect immediately prior to the Closing, individually or employees (including pursuant collectively, could give rise to the payment of any Benefit Planamount which would not be deductible by reason of Section 162(m) made since December 31, 2000 is customary on or Section 280G of the Code or would be subject to a periodic basis or required by any agreement or understandingTax under Section 4999 of the Code.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a3.10 of the Disclosure Schedule includes a complete list of (i) each material employee benefit plan, program or policy providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by the Company or any of its Subsidiaries, including without limitation any employee welfare benefit plan within the meaning of Section 3(1) of the Company Disclosure Schedule, there existEmployee Retirement Income Security Act of 1974, as amended ("ERISA"), any employee pension benefit plan within the meaning of the date hereofSection 3(2) of ERISA (whether or not such plan is subject to ERISA, no employment or consulting agreement, collective bargaining agreement or but excluding any plan that is a "multiemployer plan" as defined in Section 3(37) of ERISA) and any material bonus, pension, profit sharingincentive, deferred or extra compensation, incentive compensation, stock ownershipvacation, stock purchase, stock option, phantom stock, stock appreciation right or other stock-based incentive, retirement, vacation, severance, employment, change in of control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other fringe benefit plan, programprogram or policy (collectively, agreement, arrangement or understanding the "Employee Benefit Plans") (whether or not legally bindingbut excluding for all purposes of this Section 3.10 other than Section 3.10(i) any Employee Benefit Plan that is sponsored, maintained, contributed primarily subject to or required the laws of any jurisdiction other than the United States) and (ii) each employment and severance agreement pursuant to be contributed to, or has been entered into by which the Company or any Company Subsidiary of its Subsidiaries has or would have any person obligation to provide compensation and/or benefits in an amount or entity thathaving a value in excess of $200,000 per year or $1,000,000 in the aggregate (each, together with a "Material Employment Agreement"). (b) With respect to each Employee Benefit Plan, the Company has delivered or made available to Parent a true, correct and its Subsidiariescomplete copy of: (i) all plan documents and trust agreements; (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, is treated as if any; (iii) the current summary plan description, if any; (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; and (vi) the most recent determination letter from the IRS, if any. The Company has delivered or made available to Parent a single employer under Section 414(b)true, correct and complete copy of each Material Employment Agreement. (c)) The Company has received, (m) or (ohas timely applied for, a determination letter with respect to each Employee Benefit Plan that is intended to be a "qualified plan" within the meaning of Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code") (), and the Company related trust that covers the Employee Benefit Plan as amended as of the date of this Agreement, and, to the knowledge of the Company, there are no circumstances and each ---- no events have occurred that could be reasonably expected to adversely affect the qualified status of any such other person Employee Benefit Plan or entitythe related trust, an "ERISA Affiliate") which cannot be cured without a material payment or cost to the Company. All such Employee Benefit Plans have been timely amended for the benefit of any --------------- current or former employees, officers, consultants or directors requirements of the Company or any Company Subsidiary (collectively, the legislation commonly known as "Benefit PlansGUST" and "). Since the ------------- versions of documents delivered or made available as provided above, there EGTRRA" and have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except submitted to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) for a favorable determination letter on the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit PlanGUST requirements within the remedial amendment period prescribed by GUST. (d) All Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any No Employee Benefit Plan that is subject to Title IV of ERISAERISA or Section 412 of the Code, including without limitation any and no Employee Benefit Plan is a "multiemployer plan" (as defined in Section 4001(a)(33(37) of ERISA). Neither the Company nor any of its Subsidiaries has incurred or could incur any liability or obligation under Title IV of ERISA or Section 412 of the Code. Neither the Company nor any of its Subsidiaries has any current or potential liability or obligation on account of being at any time considered a single employer under Section 414 of the Code with any Person other than the Company and its Subsidiaries. (fe) Except as set forth in Section 3.12(e) 3.10 of the Company Disclosure Schedule Schedule, (i) Each Employee Benefit Plan has been maintained, funded and as contemplated by Section 2.4 administered in all material respects in accordance with its terms and with the applicable provisions of this AgreementERISA, no current or former employeethe Code and other applicable laws, officer, consultant or director rules and regulations; (ii) none of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Scheduleits Subsidiaries or, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors knowledge of the Company, any fiduciary of any Employee Benefit Plan has engaged in any "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Employee Benefit Plans or their related trusts, the Company Subsidiary or any Commonly Controlled Entity after retirement of its Subsidiaries to any material tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA and, to the knowledge of the Company, no fiduciary of any Employee Benefit Plan has any material liability or obligation for breach of fiduciary duty or any other termination of service, other than failure to act in connection with any Employee Benefit Plan; and (iiii) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There there are no pending or, to the Company's knowledge, threatened actions, suits, proceedings, audits, hearings, investigations or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefitsbenefits in the ordinary course). (j) , which relate to any of the Employee Benefit Plans or the assets of any of the trusts thereof which could reasonably be expected to result in a material liability to the Company. Neither the Company nor any Company Subsidiaryof its Subsidiaries maintains, contributes to or has any Commonly Controlled Entityobligation or liability with respect to, the provision of any health or life insurance or other welfare-type benefits for current or future retired or terminated directors, officers, employees or contractors (or any spouse or other dependent thereof) other than in accordance with Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code ("COBRA") or as provided in the Material Employment Agreements or as set forth in Section 3.10(e) of the Disclosure Schedule. The Company and its Subsidiaries have complied and are in compliance in all material respects with the requirements of COBRA. With respect to the Employee Benefit Plans, any trust created thereunder nor any trustee all material payments, premiums, contributions, reimbursements for all periods ending prior to or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B as of the CodeEffective Time shall have been made. (kf) Except as disclosed would not be material or as otherwise contemplated by this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) constitute an event under an Employee Benefit Plan that will or may result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit to any current or former employee, officer, contractor or director of the Company or any of its Subsidiaries. (g) The Company and its Subsidiaries have, for purposes of each Employee Benefit Plan, correctly classified those individuals performing services for the Company and its Subsidiaries as common law employees, leased employees, independent contractors or agents to the extent any failure to correctly classify such individuals would result in a material liability to the Company or any of its Subsidiaries. (h) The amounts owing under the Retention Bonus Plan as of the date hereof and as of the Effective Time are set forth in Section 3.12(a3.10(h) of the Company Disclosure Schedule. The account balances under the Deferred Compensation Plan as of the date hereof and as of the Effective time are set forth in Section 3.10(h) of the Disclosure Schedule. (i) All the Employee Benefit Plans that are primarily subject to the laws of any jurisdictions outside of the United States (collectively, the "Foreign Plans"), which are set forth in Section 3.10(i) to the Disclosure Schedule, no increase have been maintained in the compensation or benefits of officers or employees compliance in all material respects with all applicable laws (including pursuant including, if they are intended to any Benefit Plan) made since December 31qualify for special tax treatment, 2000 is customary on a periodic basis or required by any agreement or understandingapplicable tax laws).

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in 0 of the Disclosure Schedule includes a complete list of (i) each material employee benefit plan, program or policy providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by the Company or any of its Subsidiaries, including without limitation any employee welfare benefit plan within the meaning of Section 3.12(a3(1) of the Company Disclosure Schedule, there existEmployee Retirement Income Security Act of 1974, as amended (“ERISA”), any employee pension benefit plan within the meaning of the date hereofSection 3(2) of ERISA (whether or not such plan is subject to ERISA, no employment or consulting agreement, collective bargaining agreement or but excluding any plan that is a “multiemployer plan” as defined in Section 3(37) of ERISA) and any material bonus, pension, profit sharingincentive, deferred or extra compensation, incentive compensation, stock ownershipvacation, stock purchase, stock option, phantom stockseverance, stock appreciation right employment, change of control or fringe benefit plan, program or policy (collectively, the “Employee Benefit Plans”) (but excluding, for all purposes of this Agreement other stock-based incentivethan Section 3.10(i) and Section 6.9 hereof, retirementany Employee Benefit Plan that is primarily subject to the laws of any jurisdiction outside of the United States) and (ii) each employment and severance agreement pursuant to which the Company or any of its Subsidiaries has or would have any obligation to provide compensation and/or benefits in an amount or having a value in excess of $125,000 per year or $500,000 in the aggregate (each, vacationa “Material Employment Agreement”). (b) With respect to each Employee Benefit Plan, the Company has delivered or made available to Parent a true, correct and complete copy of: (i) all plan documents and trust agreements; (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) the current summary plan description, if any; (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; and (vi) the most recent determination letter from the United States Internal Revenue Service (the “IRS”), if any. The Company has delivered or made available to Parent a true, correct and complete copy of each Material Employment Agreement. (c) The Company has, or has applied for, a determination letter with respect to each Employee Benefit Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code, and the trust maintained pursuant thereto has been determined to be so qualified and exempt from federal income taxation under Section 501 of the Code by the IRS, and to the knowledge of the Company, nothing has occurred with respect to the operation of any such Employee Benefit Plan that would reasonably be expected to cause the loss of such qualification or exemption from Tax that cannot be corrected without material liability. (d) Except as would not reasonably be expected to have a Material Adverse Effect on the Company (i) each Employee Benefit Plan and each Material Employment Agreement has been administered, in all respects, in accordance with its terms and the applicable provisions of ERISA, the Code and other applicable laws and (ii) neither the Company nor any of its Subsidiaries has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject the Company or any of its Subsidiaries to any Tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA. (e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) (i) constitute an event under an Employee Benefit Plan or Material Employment Agreement that will result in, cause the accelerated vesting, funding or delivery of, or increase in any material respect the amount or value of, any material payment or material benefit (including, without limitation, severance, change in control unemployment compensation, forgiveness of indebtedness or termination pay (otherwise) to any employee, officer or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance director of the Company or any other plan, program, agreement, arrangement of its Subsidiaries or understanding (ii) cause any material amount to fail to be deductible under Code Sections 280G or 4999. (f) No Employee Benefit Plan is subject to Title IV of ERISA. Neither the Company nor any trade or business (whether or not legally bindingincorporated) that is sponsored, maintained, contributed to or required to be contributed to, or has been entered into by under common control with the Company or any Company Subsidiary or any person or entity thatof its Subsidiaries and which, together with the Company and or any of its Subsidiaries, is treated as a single employer under within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "“ERISA Affiliate"”) for the benefit of made, or was required to make, any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating material contributions to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is plan subject to Title IV of ERISAERISA during the five-year period ending on the last day of the most recent plan year ended prior to the Effective Time. Except as would not reasonably be expected to have a Material Adverse Effect on the Company, including without limitation any "no liability under Title IV or Section 302 of ERISA has been incurred by the Company or an ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk of such liability. No Employee Benefit Plan is a “multiemployer plan" ” (as such term is defined in Section 4001(a)(33(37) of ERISA). (fg) Except Each Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as set forth defined in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m409A(d)(1) of the Code. Except as disclosed ) has been operated and administered in good faith compliance with Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) 409A of the Code is imposed and the regulations and other authoritative guidance thereunder, except as would not be reasonably expected to have a Material Adverse Effect on such personthe Company. (h) No Except as would not reasonably be expected to have a Material Adverse Effect on the Company, each Employee Benefit Plan provides benefitsand each Material Employment Agreement that is maintained pursuant to the laws of a country other than the United States is in compliance with all such applicable laws, including without limitation death or medical benefits (whether or not insured), relevant laws with respect to current Taxes and the requirements of any trust deed under which such Employee Benefit Plan or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension PlanMaterial Employment Agreement is established. (i) There are no pending or, Except as would not reasonably be expected to have a Material Adverse Effect on the Company's knowledge, threatened (i) neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or anticipated claims other labor union contract applicable to persons employed by the Company or any of its Subsidiaries, nor does the Company know of any activities or proceedings of any labor union to organize any such employees; (ii) within the past three years there have been no, nor does the Company have any knowledge of any threatened, strikes, slowdowns, work stoppages, lockouts or material labor disputes, by or on behalf with respect to any employees of the Company or its Subsidiaries; and (iii) neither the Company nor any Benefit PlanSubsidiary is engaged in any material unfair labor practice, by any employee as defined in the National Labor Relations Act or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits)applicable legal requirements. (j) Neither Except as would not reasonably be expected to have a Material Adverse Effect on the Company, the Company nor any and each Company SubsidiarySubsidiary are and have been in compliance with all applicable legal requirements and regulations respecting employment and terms and conditions of employment, any Commonly Controlled Entityincluding, any but not limited to, discrimination and harassment, termination of the Benefit Plansemployment, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975wages, 4976 or 4980B hours, overtime classification, occupational safety and health, employee whistle-blowing, immigration, employee privacy, mass layoffs and plant closures and classification of the Codeemployees, consultants and independent contractors. (k) Except as disclosed in Section 3.12(a) of the Company Disclosure Schedule, no increase in the compensation or benefits of officers or employees (including pursuant to any Benefit Plan) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understanding.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a3.9(a) of the Company Disclosure Schedule, there exist, Letter contains a true and complete list of each material "employee benefit plan" as defined in Section 3(3) of the date hereof, no employment or consulting agreement, collective bargaining agreement or any ERISA and each bonus, pension, profit sharing, deferred or extra compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stockstock award, stock appreciation right severance or termination benefit, hospitalization or other stock-based incentive, retirement, vacation, severance, change in control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance insurance, supplemental unemployment benefits, profit-sharing, pension, or any other retirement plan, program, agreementagreement or arrangement, each employment, retention or severance agreement or arrangement which cannot be terminated in fewer than three months or understanding (whether without liability exceeding the greater of one month's salary or not legally binding) that is one week of salary for each year of service and each other material employee benefit plan, program, agreement or arrangement, sponsored, maintained, maintained or contributed to or required to be contributed to, or has been entered into by the Company or by any Company Subsidiary trade or any person business, whether or entity thatnot incorporated (an "ERISA Affiliate"), that together with the Company would be deemed a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), for the benefit of any employee or former employee or director of the Company or any ERISA Affiliate employed in the United States (the "Plans"). (b) With respect to each Plan, the Company has heretofore delivered or made available to Merger Company true and its Subsidiariescomplete copies of each of the following documents: (i) the Plan; (ii) the most recent annual report and actuarial report; (iii) the most recent Summary Plan Description required under ERISA with respect thereto; (iv) if the Plan is funded through a trust or third party funding vehicle, is treated as a single employer the trust or other funding agreement and the latest financial statements thereof; and (v) the most recent determination letter received from the Internal Revenue Service with respect to each Plan intended to qualify under Section 414(b), (c), (m) or (o401(a) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA, including without limitation any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA). (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Company Subsidiary, any Commonly Controlled Entity, any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Code. (k) Except as disclosed in Section 3.12(a) of the Company Disclosure Schedule, no increase in the compensation or benefits of officers or employees (including pursuant to any Benefit Plan) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understanding.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a4.13(a) of the Company Disclosure Schedule, there exist, as of the date hereof, no employment or consulting agreement, collective bargaining agreement or any bonus, pension, profit sharing, deferred or extra compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right or other stock-based incentive, retirement, vacation, severance, change in control or termination pay Schedule lists (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other i) each plan, program, agreementarrangement, arrangement practice or understanding policy, whether formal or informal, funded or unfunded, written or oral, under which any current or former officer, employee or director of the Company or a Subsidiary of the Company has any right to employment, to purchase or receive any stock or other securities of the Company or a Subsidiary of the Company or to receive any compensation (whether in the form of cash or stock or otherwise) or benefits of any kind or description whatsoever in any amount or under which the Company or a Subsidiary of the Company has any liability, and (ii) each employee benefit plan within the meaning set forth in Section 3(3) of ERISA, that is sponsored or maintained by the Company or a Subsidiary of the Company, or under which the Company or a Subsidiary has any liability (collectively, the “Company Plans”). Section 4.13(a) of the Company Disclosure Schedule identifies the Company Plans pursuant to which Company Stock Options may be granted. (b) The Company has delivered or made available to Parent, with respect to each Company Plan to the extent applicable: (i) a current, complete and accurate copy of the plan document (and any related trust, insurance contract or other funding arrangement) and a written summary of each Company Plan which is not set forth in writing; (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related schedules, exhibits and auditor’s reports; (iii) the most recent summary plan description and any summary of material modifications; (iv) the most recent actuarial report, financial statements and annual non-discrimination test results; (v) the most recent favorable determination or opinion letter received from the IRS, or a copy of the most recent determination letter application filed with the IRS, as applicable; and (vi) all material correspondence to or from any Governmental Entity with respect to the registration, maintenance or qualification of each such Company Plan, including, without limitation, any filings under the IRS’ Voluntary Correction Program or the United States Department of Labor’s Delinquent Filer Voluntary Compliance Program or Voluntary Fiduciary Correction Program. (c) Neither the Company nor any ERISA Affiliate has ever maintained, sponsored, contributed to, had any obligation to contribute to, or had any liability (including “withdrawal liability” as defined in ERISA Section 4201) under or with respect to any: (i) “defined benefit plan” (as defined in Section 3(35) of ERISA); (ii) “employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is subject to Title IV of ERISA or Sections 412 or 430 of the Code; (iii) “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), or (iv) “multiple employer plan” within the meaning of Section 413(c) of the Code. For purposes of this Agreement, “ERISA Affiliate” means any trade or business (whether or not legally bindingincorporated) that is sponsored, maintained, contributed to or required to be contributed to, or has been entered into by the Company or any Company Subsidiary or any person or entity that, together with the Company and its Subsidiaries, is treated as a single employer with the Company under Section Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA, including without limitation any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA). (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Company Subsidiary, any Commonly Controlled Entity, any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Code. (k) Except as disclosed in Section 3.12(a) of the Company Disclosure Schedule, no increase in the compensation or benefits of officers or employees (including pursuant to any Benefit Plan) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understanding.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a4.11(a) of the Company Disclosure ScheduleSchedule contains a true and complete list of each “employee benefit plan” within the meaning of Section 3(3) of ERISA, there existwhether or not subject to ERISA, as of the date hereof, no employment or consulting agreement, collective bargaining agreement or any and each bonus, pension, profit sharing, deferred or extra compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right or other stockequity-based incentivecompensation, retirement, vacation, severance, change in control severance or termination pay (or other termination), disability, death benefitpay, hospitalization, medical, life insurance life, dental, vision, disability, prescription drug, other health insurance, supplemental unemployment benefits, fringe benefit, loan, salary continuation, change in control, flexible spending, service award, educational assistance, sick leave, vacation, profit sharing, pension or other insurance or any other retirement plan, program, agreementagreement or arrangement, arrangement and each other material employee benefit plan, program, agreement or understanding (whether arrangement, in each case sponsored or not legally binding) that is sponsored, maintained, contributed to or required to be contributed to, or has been entered into maintained by the Company or any Company Subsidiary or any person or entity that, together with the Company and its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of respect to which the Company or any Company Subsidiary would reasonably be expected to have material Liability thereunder following the Closing for the benefit of any current or former employee, officer, director, consultant or other individual providing services to the Company or a Company Subsidiary (individually, a “Plan” and, collectively, the "Benefit “Plans"”). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company With respect to each of the Plans, Seller has heretofore made available to Parent Buyer true, current, and complete and correct copies of each of the following documents, to the extent applicable: (i) each Benefit Plan document (or, in the case of any unwritten Benefit Plans, descriptions thereofincluding all amendments thereto), ; (ii) the three most recent annual report, if required under ERISA; (iii) if the Plan is funded through a trust or any third-party funding vehicle, the trust or other funding agreement (including all amendments thereto), the two most recent financial statements and any reports on Form 5500 filed with required by the Code; (iv) the most recent determination, opinion, or advisory letter received from the Internal Revenue Service with respect to each Benefit Plan Plan; (v) any contracts or agreements, insurance contracts or other funding arrangements and all amendments thereto; (vi) the results of the non-discrimination testing for the most recent three years; (vii) the most recent actuarial report, if any; (viii) the most recent IRS determination letter; (ix) all correspondence, rulings or opinions issued by the DOL, IRS or any such report was required)other Governmental Entity and all material correspondence from the Company to the DOL, plus schedules related theretoIRS or other Governmental Entity other than routine reports, returns or other filings within the last three years; (iiix) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries descriptions and any summaries of Material Modification issued material modifications with respect thereto; (xi) written descriptions of all non-written Plans; (xii) material correspondence with individuals eligible for and/or participating in the Plans, including sample 401(k) safe harbor notices if applicable; (xiii) model Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), forms and related invoices; (ivxiv) each trust agreement fiduciary insurance policies and group annuity contract relating fidelity bonds; (xv) filings, disclosures, policies and procedures, including 1094 and 1095 forms for the most recent three years, with respect to the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010, as amended, and any Benefit Plan guidance issued thereunder (if any such report was required“PPACA”) and (vxvi) all material contracts and employee communications relating to each Benefit Planany other document(s) reasonably requested by Buyer. (dc) All Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension No Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA or Section 412 of the Code. No liability under Title IV of ERISA has been incurred by the Company or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a risk to the Company or any ERISA Affiliate of incurring a liability under Title IV of ERISA. Each Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service or, including without limitation with respect to a pre-approved plan, is entitled to rely on an opinion letter from the IRS to the pre-approved plan sponsor as to its qualification and, to the Knowledge of Seller, no event has occurred that could reasonably be expected to result in disqualification of such Plan. No Plan is or has been a “multiple employer” plan within the meaning of ERISA Section 201(a) or Code Section 413(a), a “voluntary employees’ beneficiary association” (within the meaning of Section 501(c)(9) of the Code), or a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. Neither the Company nor any "of its ERISA Affiliates has ever completely or partially withdrawn from any “multiemployer plan" (” as defined in Section 3(37) or 4001(a)(3) of ERISA (“Multiemployer Plan”) and no termination Liability to the United States Pension Benefit Guaranty Corporation or withdrawal Liability to any Multiemployer Plan has been or is reasonably expected to be incurred with respect to any Multiemployer Plan by the Company nor any of its ERISA Affiliates. Neither the Company nor any other “disqualified person” or “party in interest,” as defined in Section 4975 of the Code and Section 3(14) of ERISA, respectively, has engaged in any “prohibited transaction,” as defined in Section 4975 of the Code or Section 406 of ERISA (which is not otherwise exempt), with respect to any Plan, nor, to the Knowledge of Seller, have there been any fiduciary violations under ERISA that could subject the Company (or any employee) to any material penalty or tax under Section 502(i) of ERISA or Section 4975 of the Code. (d) Each Plan has been operated and administered in accordance with its terms and applicable Law in all material respects, including ERISA, the Code and other applicable Laws. There are no pending or, to the Knowledge of Seller, threatened claims by or on behalf of any of the Plans, by any employee or beneficiary covered under any such Plan or otherwise involving any such Plan (other than routine claims for benefits). (fe) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated required by Section 2.4 of this Agreementapplicable Law, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after Employees beyond their retirement or other termination of service, except as may be required under Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code or any similar state law and at the sole expense of the participant or the participant’s beneficiary (unless subsidized under the American Rescue Plan Act of 2021). (f) Except as set forth in Section 4.11(f) of the Disclosure Schedule, neither the performance by the Company of this Agreement nor the consummation of the transactions contemplated by this Agreement (whether alone or together with any other than event) will, in any respect, (i) coverage mandated by applicable law entitle any current or former Company Employee to severance pay, unemployment compensation or any other payment or (ii) death benefits accelerate the time of payment or retirement vesting, or increase the amount of compensation due any such director, officer or employee. Neither the Company nor any Company Subsidiary is a party to any agreement, Contract or arrangement that would result, separately or in the aggregate, in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code. (g) All contributions required to have been made under any of the Plans or by Law have been timely made. There are no unfunded liabilities or benefits under any Pension Plans. (h) All required reports and descriptions (including Form 5500 Annual Reports, Summary Annual Reports and Summary Plan Descriptions) with respect to each Plan have been properly and timely filed with the appropriate Governmental Entity and distributed to participants, as applicable. None of the assets of any Plan are invested in employer securities or employer real property. Each Plan may, under its terms, be amended or terminated at any time. No tax or penalty is or has been assessed, or is reasonably expected to be assessed, under Section 4908H of the Code, and no 226-J letter has been issued, with respect to any Plan, the Company, or a Company Subsidiary. Except as set forth in Section 4.11(h) of the Disclosure Schedule, no Plan is funded through self-insurance. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Company SubsidiarySubsidiary has made any plan or commitment to establish any new Plan or to modify any Plan, except to the extent required by applicable Law or to conform any Commonly Controlled Entity, such Plan to the requirements of any applicable Law or as disclosed on Section 4.11(i) of the Benefit Plans, Disclosure Schedule. (j) To the extent that any trust created thereunder nor any trustee or administrator thereof has engaged Plan is a “Nonqualified Deferred Compensation Plan,” as such term is defined in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B Section 409A of the Code, such Plan is in documentary and operational compliance with Section 409A of the Code and all applicable guidance issued by the IRS thereunder. Neither the Company nor any Company Subsidiary has any obligation to any employee or other individual service provider to provide any indemnification, “gross-up” or similar obligation in the event that any excise tax is imposed on such employee under Sections 409A or 4999 of the Code or any similar state law. (k) Except as disclosed in Section 3.12(a) No Plan is subject to the laws of any jurisdiction other than the Company Disclosure Schedule, no increase in the compensation or benefits United States of officers or employees (including pursuant to any Benefit Plan) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understandingAmerica.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a) of the Company Disclosure Schedule, there existSchedule sets forth a correct and complete list of: (i) all “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as of the date hereof, no amended (“ERISA”)) and (ii) all employment or consulting agreementother compensation agreements, collective bargaining agreement or any bonus, pension, profit sharing, deferred bonus or extra compensation, other incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right equity or other stockequity-based incentivecompensation, retirementdeferred compensation, change in control, severance, pension benefit, welfare benefit, sick leave, vacation, severancesalary continuation, change in control or termination pay (or other termination), disability, death benefit, hospitalization, medicalhealth, life insurance insurance, educational assistance and other employee benefit plans, policies, agreements or other insurance or any other plan, program, agreement, arrangement or understanding arrangements (whether or not legally bindingx) that is sponsored, maintained, contributed which are applicable to or required to be contributed to, or has been entered into by the Company or any Company Subsidiary or any person or entity that, together with the Company and its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, individual consultants or directors of the Company or any of its Subsidiaries, (y) with respect to which the Company Subsidiary or any of its Subsidiaries has any obligation or liability, contingent or otherwise, or (z) for which the Company or any of its Subsidiaries could incur liability under the Code or ERISA, including Section 4069 or 4212(c) of ERISA (collectively, the "Benefit “Company Plans"”). Since Section 3.12(a) of the ------------- versions Company Disclosure Schedule separately sets forth each Company Plan which is subject to Title IV of documents delivered ERISA and each “multiemployer plan”, as defined in Section 3(37) of ERISA to which the Company or made available as provided abovea Subsidiary contributes (a “Multiemployer Plan”), there have or is or has been no adoptions subject to Sections 4063 or amendments 4064 of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable lawsERISA. (b) The Correct and complete copies of the following documents with respect to each of the Company has Plans (other than a Multiemployer Plan) have been delivered or made available to Parent true, complete and correct copies of by the Company to the extent applicable: (i) each Benefit Plan (orany plans and related trust documents, in the case of any unwritten Benefit Plansinsurance Contracts or other funding arrangements, descriptions thereof), and all amendments thereto; (ii) the three most recent annual reports on Form Forms 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus and all schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto)actuarial report, if any; (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and the most recent Internal Revenue Service determination letter; (v) the most recent summary plan descriptions; and (vi) written summaries of all non-written Company Plans. Neither the Company nor any of its Subsidiaries has any commitment (I) to create, incur liability with respect to or cause to exist, any other employee benefit plan, program or arrangement, (II) to enter into any contract or agreement to provide compensation or benefits to any individual or (III) to modify, change or terminate any Company Plan, other than with respect to a modification, change or termination required by applicable Law. (c) Company Plans have been maintained, in all material contracts respects, in accordance with their terms and employee communications relating with all applicable provisions of ERISA, the Code and other Law. To the extent any representation in this Section 3.12 applies to each Benefit a Multiemployer Plan, such representation is only made to the extent of the knowledge of the Company. (d) All Benefit Company Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) Section 401 or other tax-favored treatment under of Subchapter B of Chapter 1 of Subtitle A of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified qualified, and are any trusts intended to be exempt from federal income taxes taxation under Sections 401(a) the Code are so exempt and 501(a), respectively, such Company Plans have received a favorable determination letter from the IRS to that effect. Nothing has occurred with respect to the operation or terms of the Code, a true, complete and correct copy Company Plans referred to in this subsection that could cause the loss of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costsexemption, or the imposition of any material liability, penalty or tax under ERISA or the Code. (e) Neither All contributions required to have been made by the Company, nor Company or any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute of its Subsidiaries (without regard to any Benefit Plan that is waivers granted under Section 412 of the Code), have been timely made, and no accumulated funding deficiencies exist in any of the Company Plans subject to Title IV of ERISAERISA or Section 412 of the Code. Neither the Company nor any of its Subsidiaries has incurred any liability under, arising out of or by operation of Title IV of ERISA (other than liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course), including without limitation any "multiemployer liability in connection with (i) the termination or reorganization of any employee benefit plan subject to Title IV of ERISA or (ii) the withdrawal from any Multiemployer Plan, and no fact or event exists that could give rise to any such liability. Under each Company Plan which is a single employer pension plan" , as of the last day of the most recent plan year ended prior to the date of this Agreement, the actuarially determined present value of all “benefit liabilities”, within the meaning of Section 4001(a)(16) of ERISA (as defined determined on the basis of the actuarial assumptions contained in Section 4001(a)(3) such Company Plan’s most recent actuarial valuation), did not exceed the then current value of ERISA)the assets of such Company Plan, and there has been no material change in the financial condition of such Company Plan since the last day of the most recent plan year. (f) Except as set forth in Section 3.12(e) of There are no pending material actions, claims or lawsuits arising from or relating to the Company Disclosure Schedule and as contemplated by Section 2.4 Plans (other than routine benefit claims), nor does Company have any knowledge of this Agreement, no current facts that could form the basis for any such material claim or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactionslawsuit. (g) Except as disclosed set forth in Section 3.12(g) of the Company Disclosure Schedule, neither the deduction execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment becoming due to any employee, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment or vesting of any amount such benefits under any Company Plan, (iv) require any contributions or payments to fund any obligations under any Company Plan or (v) limit or restrict the right of the Company or any of its Subsidiaries or, after the consummation of the transactions contemplated hereby, the Parent, to merge, amend or terminate any of the Company Plans. (h) The parties acknowledge that certain payments have been made or are to be made and certain benefits have been granted or are to be granted according to employment compensation, severance and other employee benefit plans of the Company and its Subsidiaries, including the Benefit Plans and the (collectively, the “Arrangements”) to certain holders of Company common stock and other securities of the Company (the “Covered Securityholders”). The Company represents and warrants that all such amounts payable under the Arrangements (i) are being paid or granted as compensation for past services performed, future services to be performed, or future services to be refrained from performing, by the Covered Securityholders (and matters incidental thereto) and (ii) are not calculated based on the number of Shares tendered or to be tendered into the Offer by the applicable Covered Securityholder. The Company also represents and warrants that (i) the adoption, approval, amendment or modification of each Arrangement since the discussions relating to the transactions contemplated hereby between the Company and Parent began has been approved as an employment compensation, severance or other employee benefit arrangement solely by independent directors of the Company in accordance with the requirements of Rule 14d-10(d)(2) under the Exchange Act and the instructions thereto and (ii) the “safe harbor” provided pursuant to the terms Rule 14d-10(d)(2) is otherwise applicable thereto as a result of the Benefit Planstaking prior to the execution of this Agreement of all necessary actions by the Company Board of Directors, the Compensation Committee of the Company Board of Directors or its independent directors. A true and complete copy of any resolutions of any committee of the Company Board of Directors reflecting any approvals and actions referred to in the preceding sentence and taken prior to the date of this Agreement has been provided to Parent prior to the execution of this Agreement. (i) Any individual who performs services for the Company or any of its Subsidiaries (other arrangement, obligation than through a Contract with an organization other than such individual) and who is not treated as an employee of the Company or agreement, whether written or oral, or otherwise will any of its Subsidiaries for U.S. federal income tax purposes by the Company is not be subject to disallowance under an employee for such purposes. (j) Except as set forth on Section 280G or 162(m3.12(i) of the CodeCompany Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to a collective bargaining or other labor union Contract applicable to Persons employed by the Company or any of its Subsidiaries (each a “Company Collective Bargaining Agreement”). Except As of the date of this Agreement, except as disclosed in set forth on Section 3.12(g3.12(i) of the Company Disclosure Schedule, no person collective bargaining agreement or other labor union contract is entitled to receive any "gross-up" payment from being negotiated or renegotiated the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), its Subsidiaries with respect to current or former employees, officers, consultants or directors of persons employed by the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement of its Subsidiaries, and there are no organizational campaigns, petitions or other termination unionization activities seeking recognition of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither a collective bargaining unit which could affect the Company nor any Company Subsidiary, any Commonly Controlled Entity, or any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Codeits Subsidiaries. (k) Except as disclosed set forth in Section 3.12(a3.12(j) of the Company Disclosure Schedule, there are no increase (i) strikes, work stoppages, slowdowns, lockouts or arbitrations, (ii) material grievances or other labor disputes pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against or involving the Company or any of its Subsidiaries involving any employee of the Company or any of its Subsidiaries or (iii) complaints, charges or claims against the Company or any of its Subsidiaries pending or, to the knowledge of the Company, threatened that could be brought or filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment or failure to employ by the Company or any of its Subsidiaries, of any individual. Except as set forth in Section 3.12(j) of the Company Disclosure Schedule, there are no unfair labor practice charges pending or, to the knowledge of the Company, threatened by or on behalf of any employee or former employee of the Company or any of its Subsidiaries. (l) The Company and its Subsidiaries are in compliance with all Laws relating to the employment of labor, including all such Law relating to wages, hours, the Worker Adjustment and Retraining Notification Act and any similar state or local “mass layoff” or “plant closing” law (“WARN”), collective bargaining, discrimination, civil rights, safety and health, workers’ compensation and the collection and payment of withholding and/or social security taxes and any similar tax, except for immaterial non-compliance. Except as set forth in Section 3.12(k) of the Company Disclosure Schedule, there will not have been any “mass layoff” or benefits “plant closing” (as defined by WARN) with respect to the Company or any of officers its Subsidiaries within the six (6) months prior to the Closing. (m) Except as set forth in Section 3.12(l) of the Company Disclosure Schedule, none of the Company Plans in effect immediately prior to the Closing, individually or employees (including pursuant collectively, could give rise to the payment of any Benefit Planamount which would not be deductible by reason of Section 162(m) made since December 31, 2000 is customary on or Section 280G of the Code or would be subject to a periodic basis or required by any agreement or understandingTax under Section 4999 of the Code.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a5.10(a) of the Company Disclosure Schedule, there exist, as Schedule contains a true and complete list of the date hereof, no employment or consulting agreement, collective bargaining agreement or any bonus, each material pension, profit sharing, deferred or extra compensationretirement savings, incentive compensation, employee stock ownership, stock purchase, stock option, phantom restricted stock, stock appreciation right or other stock-based incentive, retirement, vacation, severance, termination, employment, consulting, change in control or termination pay (control, fringe benefit, welfare, collective bargaining, bonus, insurance, medical or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other employee benefit plan, program, agreementagreement or arrangement, arrangement or understanding including each "employee benefit plan" as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (whether or not legally binding"ERISA") that is and including any multi-employer plan (as defined in section 4001(a)(3) of ERISA) (each, a "Plan"), sponsored, maintained, maintained or contributed to or required to be contributed to, or has been entered into to by the Company Sellers for the benefit of current or former employees (the "Business Employees") of the Business (each, a "Business Benefit Plan"). (b) True and complete copies of the following documents relating to each Business Benefit Plan, where applicable, have been delivered to the Buyer: (i) the Plan, including all amendments thereto; (ii) the most recent summary plan description, summary of material modifications and all material general employee communications relating to such Plan; (iii) a copy of the most recent annual report, if required under ERISA, with respect to each such Plan; (iv) a copy of the most recent actuarial report, if required under ERISA, with respect to each such Plan; (v) if the Plan is funded through a trust or any Company Subsidiary other funding vehicle, a copy of the trust or any person or entity thatother funding agreement (including all amendments thereto) and the latest financial statements thereof, together and (vi) the most recent determination letter received from the Internal Revenue Service with the Company and its Subsidiaries, respect to each Plan that is treated as a single employer intended to be qualified under Section 414(b), (c), (m) or (o) section 401 of the Internal Revenue Code of 1986, as from time to time amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA, including without limitation any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA). (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (gc) Except as disclosed in Section 3.12(g5.10(c) of the Company Disclosure Schedule or in the Parent SEC Reports, the Business Benefit Plans are in substantial compliance with all applicable provisions of ERISA and the Code except for instances of noncompliance or liabilities or obligations that would not, individually or in the aggregate, result in a Lien on the Purchased Assets or in any liability of the Buyer therefor. Except to the extent any of the following either individually or in the aggregate would not have a Material Adverse Effect, or result in any liability to Buyer following the Closing Date, (i) neither the Seller nor any trade or business, whether or not incorporated (an "ERISA Affiliate"), which together with the Seller would be deemed a "single employer" within the meaning of section 4001 (b) of ERISA, has incurred any unsatisfied liability under title IV of ERISA and no condition exists that could reasonably be expected to present a risk to the Seller or any ERISA Affiliate of incurring any such liability (other than liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course), and (ii) no "employee benefit plan," maintained or contributed to by the Seller or any ERISA Affiliate has incurred an "accumulated funding deficiency" (within the meaning of section 302 of ERISA or section 412 of the Code) whether or not waived. (d) Except as expressly provided in this Agreement, the Transition Services Agreement or as set forth in Section 5.10(d) of the Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms consummation of the Benefit Planstransactions contemplated by this Agreement will not, either alone or in combination with another event, (i) entitle any current or former employee of the Sellers to severance pay or any other arrangementpayment, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits accelerate the time of payment or retirement benefits under any Pension Plan. (i) There are no pending orvesting, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Company Subsidiary, any Commonly Controlled Entity, any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Code. (k) Except as disclosed in Section 3.12(a) of the Company Disclosure Schedule, no increase in the compensation or benefits of officers or employees (including pursuant provided to such employee, in either case for which Buyer would have any Benefit Plan) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understandingliability.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a4.13(a) of the Company Disclosure ScheduleSchedule includes a complete list of each employee benefit plan, there existprogram or policy providing benefits to any current or former employee, as officer or director of the date hereof, no employment or consulting agreement, collective bargaining agreement Company or any of its subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by the Company or any of its subsidiaries or to which the Company or any of its subsidiaries contributes or is obligated to contribute (other than those programs or policies that do not provide material benefits and other than employee benefit plans, programs or policies providing benefits to non-U.S. employees of the Company), including without limitation any employee welfare benefit plan within the meaning of Section 3(1) of ERISA, any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA, and including any "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA (a "MULTIEMPLOYER PLAN")) and any material bonus, pension, profit sharingincentive, deferred or extra compensation, incentive compensation, stock ownershipvacation, stock purchase, stock option, phantom stock, stock appreciation right or other stock-based incentive, retirement, vacationbased, severance, employment, change in of control or termination pay (or other termination)fringe benefit agreement, disability, death benefit, hospitalization, medical, life insurance or other insurance or any other plan, program, agreement, arrangement program or understanding (whether or not legally binding) that is sponsored, maintained, contributed to or required to be contributed to, or has been entered into by the Company or any Company Subsidiary or any person or entity that, together with the Company and its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary policy (collectively, the "Benefit PlansCOMPANY EMPLOYEE BENEFIT PLANS"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The With respect to each Company Employee Benefit Plan other than a Multiemployer Plan (a "COMPANY PLAN"), the Company has delivered or made available to Parent a true, correct and complete and correct copies of copy of: (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), all plan documents and trust agreements; (ii) the three most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) the current summary plan description, if any; (iv) the most recent annual reports on Form 5500 filed with financial report, if any; (v) the Internal Revenue Service most recent actuarial report, if any; and (vi) the most recent determination letter from the IRS, if any. Except as specifically provided in the foregoing documents, or in other documents, delivered or made available to Parent, there are no amendments to any Company Plan that have been adopted or approved. (c) The IRS has issued a favorable determination letter with respect to each Benefit Plan that is intended to be a "qualified plan" within the meaning of Section 401(a) of the Code (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was requireda "QUALIFIED PLAN") and (v) all material contracts its related trust that has not been revoked, and employee communications relating there are no circumstances and no events have occurred that would reasonably be expected to each Benefit Planresult in a revocation of such letter, which cannot be cured without a Company Material Adverse Effect. (d) All Except as is not reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect: (i) the Company and its subsidiaries have complied, and are now in compliance, with all provisions of ERISA, the Code and all laws and regulations applicable to the Company Employee Benefit Plans that are and each Company Plan has been administered in all material respects in accordance with its terms; (ii) none of the Company and its subsidiaries nor any other person, including any fiduciary, has engaged in any "employee pension benefit plansprohibited transaction" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) 4975 of the Code have been the subject or Section 406 of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(aERISA), respectively, which could subject any of the CodeCompany Employee Benefit Plans or their related trusts, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor of its subsidiaries or any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan person that is subject to Title IV of ERISA, including without limitation any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA). (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled of its subsidiaries has an obligation to indemnify, to any additional compensation tax or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance penalty imposed under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) 4975 of the Code is imposed on such person. or Section 502 of ERISA; (hiii) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There there are no pending or, to the Company's knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits or anticipated claims by arbitrations which have been asserted or on behalf instituted against the Company Plans, any fiduciaries thereof with respect to their duties to the Company Plans or the assets of any Benefit Plan, by any employee or beneficiary of the trusts under any of the Company Plans which could reasonably be expected to result in any liability of the Company or any of its subsidiaries to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any Multiemployer Plan or any Plan. (e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any material payment or benefit to any employee, officer or director of the Company or any of its subsidiaries, or result in any limitation on the right of the Company or any of its subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Employee Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits)related trust. (jf) Neither the No Company nor any Company Subsidiary, any Commonly Controlled Entity, any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be Plan is subject to either a civil penalty assessed pursuant to section 409 Title IV or 502(i) or Section 302 of ERISA or a tax imposed pursuant to section 4975, 4976 Section 412 or 4980B 4971 of the Code. (k) Except as disclosed in Section 3.12(a) , and none of the Company Disclosure Scheduleand its subsidiaries, no increase in nor any of their respective ERISA Affiliates, has, at any time during the compensation last six years contributed to or benefits of officers or employees (including pursuant been obligated to contribute to any Benefit Plan) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understandingplan subject to Title IV of ERISA.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a) of the Company Disclosure Schedule, there existSchedule sets forth a correct and complete list of: (i) all “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as of the date hereof, no amended (“ERISA”)) and (ii) all employment or consulting agreementother compensation agreements, collective bargaining agreement or any bonus, pension, profit sharing, deferred bonus or extra compensation, other incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right equity or other stockequity-based incentivecompensation, retirementdeferred compensation, change in control, severance, pension benefit, welfare benefit, sick leave, vacation, severancesalary continuation, change in control or termination pay (or other termination), disability, death benefit, hospitalization, medicalhealth, life insurance insurance, educational assistance and other employee benefit plans, policies, agreements or other insurance or any other plan, program, agreement, arrangement or understanding arrangements (whether or not legally bindingx) that is sponsored, maintained, contributed which are applicable to or required to be contributed to, or has been entered into by the Company or any Company Subsidiary or any person or entity that, together with the Company and its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, individual consultants or directors of the Company or any of its Subsidiaries, (y) with respect to which the Company Subsidiary or any of its Subsidiaries has any obligation or liability, contingent or otherwise, or (z) for which the Company or any of its Subsidiaries could incur liability under Section 4069 or 4212(c) of ERISA (collectively, the "Benefit “Company Plans"”). Since Section 3.12(a) of the ------------- versions Company Disclosure Schedule separately sets forth each Company Plan which is subject to Title IV of documents delivered ERISA and each “multiemployer plan”, as defined in Section 3(37) of ERISA to which the Company or made available as provided abovea Subsidiary contributes (a “Multiemployer Plan”), there have or is or has been no adoptions subject to Sections 4063 or amendments 4064 of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable lawsERISA. (b) The Correct and complete copies of the following documents with respect to each of the Company has Plans (other than a Multiemployer Plan) have been delivered or made available to Parent true, complete and correct copies of by the Company to the extent applicable: (i) each Benefit Plan (orany plans and related trust documents, in the case of any unwritten Benefit Plansinsurance Contracts or other funding arrangements, descriptions thereof), and all amendments thereto; (ii) the three most recent annual reports on Form Forms 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus and all schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto)actuarial report, if any; (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and the most recent Internal Revenue Service determination letter; (v) the most recent summary plan descriptions; and (vi) written summaries of all non-written Company Plans. Neither the Company nor any of its Subsidiaries has any commitment (I) to create, incur liability with respect to or cause to exist, any other employee benefit plan, program or arrangement, (II) to enter into any contract or agreement to provide compensation or benefits to any individual or (III) to modify, change or terminate any Company Plan, other than with respect to a modification, change or termination required by applicable Law. (c) Company Plans have been maintained, in all material contracts respects, in accordance with their terms and employee communications relating with all applicable provisions of ERISA, the Code and other Law. To the extent any representation in this Section 3.12 applies to each Benefit a Multiemployer Plan, such representation is only made to the extent of the knowledge of the Company. (d) All Benefit Company Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) Section 401 or other tax-favored treatment under of Subchapter B of Chapter 1 of Subtitle A of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified qualified, and are any trusts intended to be exempt from federal income taxes taxation under Sections 401(a) the Code are so exempt and 501(a), respectively, such Company Plans have received a favorable determination letter from the IRS to that effect. Nothing has occurred with respect to the operation or terms of the Code, a true, complete and correct copy Company Plans referred to in this subsection that could cause the loss of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costsexemption, or the imposition of any material liability, penalty or tax under ERISA or the Code. (e) Neither All contributions required to have been made by the Company, nor Company or any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute of its Subsidiaries (without regard to any Benefit Plan that is waivers granted under Section 412 of the Code), have been timely made, and no accumulated funding deficiencies exist in any of the Company Plans subject to Title IV of ERISAERISA or Section 412 of the Code. Neither the Company nor any of its Subsidiaries has incurred any liability under, arising out of or by operation of Title IV of ERISA (other than liability for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary course), including without limitation any "multiemployer liability in connection with (i) the termination or reorganization of any employee benefit plan subject to Title IV of ERISA or (ii) the withdrawal from any Multiemployer Plan, and no fact or event exists that could give rise to any such liability. Under each Company Plan which is a single employer pension plan" , as of the last day of the most recent plan year ended prior to the Memorandum Date, the actuarially determined present value of all “benefit liabilities”, within the meaning of Section 4001(a)(16) of ERISA (as defined determined on the basis of the actuarial assumptions contained in Section 4001(a)(3) such Company Plan’s most recent actuarial valuation), did not exceed the then current value of ERISA)the assets of such Company Plan, and there has been no material change in the financial condition of such Company Plan since the last day of the most recent plan year. (f) Except as set forth in Section 3.12(e) of There are no pending material actions, claims or lawsuits arising from or relating to the Company Disclosure Schedule and as contemplated by Section 2.4 Plans (other than routine benefit claims), nor does Company have any knowledge of this Agreement, no current facts that could form the basis for any such material claim or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactionslawsuit. (g) Except as disclosed set forth in Section 3.12(g) of the Company Disclosure Schedule, neither the deduction execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment becoming due to any employee, (ii) increase any benefits otherwise payable under any Company Plan, (iii) result in the acceleration of the time of payment or vesting of any amount payable such benefits under any Company Plan, (iv) require any contributions or benefit provided pursuant payments to fund any obligations under any Company Plan or (v) limit or restrict the terms right of the Benefit Plans, Company or any of its Subsidiaries or, after the consummation of the transactions contemplated hereby, the Parent, to merge, amend or terminate any of the Company Plans. (h) Any individual who performs services for the Company or any of its Subsidiaries (other arrangement, obligation than through a Contract with an organization other than such individual) and who is not treated as an employee of the Company or agreement, whether written or oral, or otherwise will any of its Subsidiaries for U.S. federal income tax purposes by the Company is not be subject to disallowance under an employee for such purposes. (i) Except as set forth on Section 280G or 162(m3.12(i) of the CodeCompany Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to a collective bargaining or other labor union Contract applicable to Persons employed by the Company or any of its Subsidiaries (each a “Company Collective Bargaining Agreement”). Except As of the Memorandum Date, except as disclosed in set forth on Section 3.12(g3.12 (i) of the Company Disclosure Schedule, no person collective bargaining agreement or other labor union contract is entitled to receive any "gross-up" payment from being negotiated or renegotiated the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), its Subsidiaries with respect to current or former employees, officers, consultants or directors of persons employed by the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement of its Subsidiaries, and there are no organizational campaigns, petitions or other termination unionization activities seeking recognition of service, other than (i) coverage mandated by applicable law a collective bargaining unit which could affect the Company or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits)its Subsidiaries. (j) Neither the Company nor any Company Subsidiary, any Commonly Controlled Entity, any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Code. (k) Except as disclosed set forth in Section 3.12(a3.12(j) of the Company Disclosure Schedule, there are no increase (i) strikes, work stoppages, slowdowns, lockouts or arbitrations, (ii) material grievances or other labor disputes pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against or involving the Company or any of its Subsidiaries involving any employee of the Company or any of its Subsidiaries or (iii) complaints, charges or claims against the Company or any of its Subsidiaries pending or, to the knowledge of the Company, threatened that could be brought or filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment or failure to employ by the Company or any of its Subsidiaries, of any individual. Except as set forth in Section 3.12(j) of the Company Disclosure Schedule, there are no unfair labor practice charges pending or, to the knowledge of the Company, threatened by or on behalf of any employee or former employee of the Company or any of its Subsidiaries. (k) The Company and its Subsidiaries are in compliance with all Laws relating to the employment of labor, including all such Law relating to wages, hours, the Worker Adjustment and Retraining Notification Act and any similar state or local “mass layoff” or “plant closing” law (“WARN”), collective bargaining, discrimination, civil rights, safety and health, workers’ compensation and the collection and payment of withholding and/or social security taxes and any similar tax, except for immaterial non-compliance. Except as set forth in Section 3.12(k) of the Company Disclosure Schedule, there will not have been any “mass layoff” or benefits “plant closing” (as defined by WARN) with respect to the Company or any of officers its Subsidiaries within the six (6) months prior to the Closing. (l) Except as set forth in Section 3.12(l) of the Company Disclosure Schedule, none of the Company Plans in effect immediately prior to the Closing, individually or employees (including pursuant collectively, could give rise to the payment of any Benefit Planamount which would not be deductible by reason of Section 162(m) made since December 31, 2000 is customary on or Section 280G of the Code or would be subject to a periodic basis or required by any agreement or understandingTax under Section 4999 of the Code.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a3.9(a) of the Company Disclosure Schedule, there exist, Letter contains a true and complete list of each material "employee benefit plan" as defined in Section 3(3) of the date hereof, no employment or consulting agreement, collective bargaining agreement or any ERISA and each bonus, pension, profit sharing, deferred or extra compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stockstock award, stock appreciation right severance or termination benefit, hospitalization or other stock-based incentive, retirement, vacation, severance, change in control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance insurance, supplemental unemployment benefits, profit-sharing, pension, or any other retirement plan, program, agreementagreement or arrangement, each employment, retention or severance agreement or arrangement which cannot be terminated in fewer than three months or understanding (whether without liability exceeding the greater of one month's salary or not legally binding) that is one week of salary for each year of service and each other material employee benefit plan, program, agreement or arrangement, sponsored, maintained, maintained or contributed to or required to be contributed to, or has been entered into by the Company or by any Company Subsidiary trade or any person business, whether or entity thatnot incorporated (an "ERISA Affiliate"), that together with the Company would be deemed a "single employer" within the meaning of Section 4001 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), for the benefit of any employee or former employee or director of the Company or any ERISA Affiliate employed in the United States (the "Plans"). (b) With respect to each Plan, the Company has heretofore delivered or made available to Merger Company true and its Subsidiariescomplete copies of each of the following documents: (i) the Plan; (ii) the most recent annual report and actuarial report; (iii) the most recent Summary Plan Description required under ERISA with respect thereto; (iv) if the Plan is funded through a trust or third party funding vehicle, is treated as a single employer the trust or other funding agreement and the latest financial statements thereof; and (v) the most recent determination letter received from the Internal Revenue Service with respect to each Plan intended to qualify under Section 414(b), (c), (m) or (o401(a) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "voluntary employee benefit association intended to qualify under Section 501(c)(9) of the Code. (c) No liability under Title IV of ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of has been incurred by the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have ERISA Affiliate that has not been no adoptions or amendments of any planssatisfied in full, and no adoptions condition exists that presents a material risk to the Company or amendments any ERISA Affiliate of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent trueincurring a liability under such Title, complete and correct copies of (i) each Benefit Plan (or, other than liability for contributions due in the case of any unwritten ordinary course and premiums due the Pension Benefit Plans, descriptions thereof), Guaranty Corporation (ii"PBGC") the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any which contributions and premiums have been paid when due) except for such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of liabilities that would not have a Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit PlanAdverse Effect. (d) All Benefit Plans No Plan that are is an "employee benefit plan," as defined in Section 3(3) of ERISA (an "ERISA Plan"), is a "multiemployer pension benefit plansplan," as defined in Section 3(37) of ERISA, nor is any ERISA Plan a plan described in Section 4063(a) of ERISA. (e) No ERISA Plan or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in Section 3(2) 302 of ERISA)(the "Pension Plans"ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each ERISA Plan ended prior to the Closing Date. Each ERISA Plan intended to qualify ------------- under Sections be "qualified" within the meaning of Section 401(a) and 501(a) of the Code have has been the subject of determination letters from determined by the Internal Revenue Service to the effect that such Pension Plans are be so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter (or timely application has been provided to Parent, and made therefor); no such determination letter event has been revoked nor has any event occurred since the date of the most recent such determination letter or application therefor for each Pension Plan that would reasonably be expected to materially adversely affect such qualification; and each trust maintained thereunder has been determined by the Internal Revenue Service to be exempt from taxation under Section 501(a) of the Code. All contributions or other payments required to have been made by Company and its qualification Subsidiaries to or materially increase under any Plan by applicable law or the terms of such Plan have been timely and properly made. Each Plan has been operated and administered in all material respects in accordance with its costs. (e) Neither terms and applicable law, including but not limited to ERISA and the Code except where a failure to so operate or administer would not have a Material Adverse Effect. There are no pending, or to the knowledge of the Company, nor threatened, material claims by or on behalf of any Company SubsidiaryPlan, nor by any ERISA Affiliate has at employee or beneficiary covered under any time maintainedsuch Plan, contributed or been obligated to contribute to otherwise involving any Benefit such Plan that is subject to Title IV of ERISA, including without limitation any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISAother than routine claims for benefits). (f) Except as set forth disclosed in Section 3.12(eSchedule 3.9(f) of the Company Disclosure Schedule Letter or in connection with equity compensation or otherwise disclosed or referred to in Section 3.9 (or in Section 3.9 of the Disclosure Letter), neither the execution and as contemplated by Section 2.4 delivery of this AgreementAgreement nor the consummation of the transactions contemplated hereby will, no without further action (i) result in any payment becoming due to any current or former employee, officer, consultant employee or director of Company and its Subsidiaries, (ii) increase any benefits under any Plan, (iii) result in the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation benefits, (iv) satisfy any condition or benefits under requirement entitling any Benefit Plan as a result current or former employee or director of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of and its Subsidiaries to additional rights or features with respect to any amount payable or benefit provided pursuant to the terms of the Benefit Plansbenefits, or (v) result in any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from becoming due by the Company or any of its Subsidiaries or the Merger Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Company Subsidiary, any Commonly Controlled Entity, any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could would be subject to either a civil penalty assessed pursuant to section 409 Sections 162(m), 280G or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B 4999 of the Code. (kg) Section 3.9(g) of the Disclosure Letter identifies each Employment Agreement containing a provision for "Good Reason" or similar terms relating to the potential termination of the employee's employment with the Company in connection with the consummation of the Merger. Neither the Company nor its Subsidiaries has taken any corporate action acknowledging that an individual party to a Listed Employee Agreement will have, upon consummation of the Merger, "Good Reason" or a similar right (as that term is defined in such Listed Employee Agreement) to terminate his or her employment thereunder with the Company. (h) With respect to each Plan that is not subject to United States law (a "Foreign Plan"): (i) Except as disclosed in Section 3.12(aSchedule 3.9(h) of the Company Disclosure ScheduleLetter, no increase with respect to each Foreign Plan, any liability for accrued benefit obligations has been funded (through insurance or otherwise) or a book reserve account has been established (in each case sufficient to procure or provide for the accrued benefit obligations in accordance with GAAP), and each such account is reflected on the Balance Sheets except for such liability for accrued benefit obligations incurred in the compensation or benefits ordinary course of officers or employees (including pursuant to any Benefit Plan) made business consistent with past practice since December 31, 2000 is customary on a periodic basis 1998 or otherwise disclosed in the Company SEC Documents; and (ii) each Foreign Plan required by any agreement or understandingto be registered has been registered and has been maintained in good standing with applicable regulatory authorities.

Employee Benefit Plans; ERISA. (a) Schedule 5.14(a) includes a complete list of all Employee Benefit Plans and all Employment Agreements. (b) Except as ----------------------------- disclosed in Section 3.12(aset forth on Schedule 5.14(b) of the Company Price Disclosure Schedule, there existwith respect to each Plan, as the Price Entities have delivered or made available to the Acquiror a true, correct and complete copy of: (i) each writing constituting a part of such Plan, including all plan documents, employee communications, benefit schedules, trust agreements, and insurance contracts and other funding vehicles; (ii) the date hereofmost recent Annual Report (Form 5500 Series) and accompanying schedule, no employment or consulting agreementif any; (iii) each final summary plan description and any material modifications thereto, collective bargaining agreement or if any bonus(in each case, pension, profit sharing, deferred or extra compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right or other stock-based incentive, retirement, vacation, severance, change in control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other plan, program, agreement, arrangement or understanding (whether or not legally binding) that is sponsored, maintained, contributed to or required to be contributed tofurnished under ERISA); (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; and (vi) the most recent determination letter from the IRS, if any. The Price Entities have delivered or has been entered into by made available to the Company or any Company Subsidiary or any person or entity thatAcquiror a true, together with the Company correct and its Subsidiaries, is treated complete copy of each Employment Agreement. Except as a single employer under Section 414(b), (c), (mset forth on Schedule 5.14(b) or (o) of as specifically provided in the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of foregoing documents delivered or made available as provided aboveto the Acquiror, there are no amendments to any Plan or Employment Agreement that have been no adoptions adopted or approved nor has any of the Price Entities undertaken to make any such amendments of or to adopt or approve any plans, and no adoptions new Plan or amendments of plans are contemplated except to conform the plans to changes in applicable lawsEmployment Agreement. (bc) Schedule 5.14(c) identifies each Plan that is intended to be a "qualified plan" within the meaning of Section 401(a) of the Code ("QUALIFIED PLANS"). The Company IRS has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service issued a favorable determination letter with respect to each Benefit Qualified Plan (if and the related trust that has not been revoked, and, to the Knowledge of the Price Group, there are no existing circumstances and no events have occurred that could adversely affect the qualified status of any such report was requiredQualified Plan or the related trust. Except as set forth on Schedule 5.14(c) of the Price Disclosure Schedule, no trust funding any Plan is intended to meet the requirements of Code Section 501(c)(9), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (material contributions required to be made to any Plan by Applicable Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Plan, for any period through the date hereof have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Financial Statements. Except as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(aset forth on Schedule 5.14(d) of the Code have been Price Disclosure Schedule, each Employee Benefit Plan that is an employee welfare benefit plan under Section 3(1) of ERISA either (i) is funded through an insurance company contract and is not a "welfare benefit fund" with the subject meaning of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, Section 419 of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter Code or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs(ii) is unfunded. (e) Neither Except as set forth on Schedule 5.14(e) of the CompanyPrice Disclosure Schedule, with respect to each Employee Benefit Plan, the Price Entities have complied, and are now in compliance with all provisions of ERISA, the Code and all laws and regulations applicable to such Employee Benefit Plans, except as would not reasonably be expected to result in a Price Material Adverse Effect. Each Plan has been administered in accordance with its terms, except as would not reasonably be expected to result in a Price Material Adverse Effect. There is not now, nor to the knowledge of the Price Group, do any circumstances exist that could give rise to, any requirement for the posting of security with respect to a Plan or the imposition of any lien on the assets of the Price Entities under ERISA or the Code. (f) No Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, and none of the Price Entities or any of their subsidiaries, nor any Company Subsidiaryof their respective ERISA Affiliates, has, within the past six years, sponsored, maintained or contributed to, or been obligated to sponsor, maintain or contribute to, any "employee pension benefit plan" (within the meaning of Section 3(2) of ERISA) subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code. (g) Except as set forth on Schedule 5.14(g) of the Price Disclosure Schedule: (i) No Employee Benefit Plan is a Multiemployer Plan or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA (a "MULTIPLE EMPLOYER PLAN"); (ii) none of the Price Entities nor any of their respective ERISA Affiliate has Affiliates has, at any time maintainedduring the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan; and (iii) none of the Price Entities nor any of their respective ERISA Affiliates has incurred any Withdrawal Liability that has not been satisfied in full. With respect to each Employee Benefit Plan that is subject a Multiemployer Plan: (i) neither the Price Entities nor any of their ERISA Affiliates expect to Title IV withdraw in a "complete withdrawal" or "partial withdrawal" within the meaning of Section 4203 and 4205 of ERISA; and (ii) neither the Price Entities nor any of their ERISA Affiliates has received any notification, including without limitation nor has any "multiemployer plan" (as defined reason to believe, that any such Employee Benefit Plan is in Section 4001(a)(3) of ERISA)reorganization, has been terminated, is insolvent, or may reasonably be expected to be in reorganization, to be insolvent, or to be terminated. (fh) Except as would not reasonably be expected to result in a Price Material Adverse Effect, (i) there does not now exist, nor, to the Knowledge of the Price Group, do any circumstances exist that could reasonably be expected to result in, any Controlled Group Liability that would be a liability of the Price Entities following the Closing and (ii) without limiting the generality of the foregoing, neither the Price Entities nor any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069 or Section 4204 or 4212 of ERISA. (i) Except as set forth in Section 3.12(eon Schedule 5.14(i) of the Company Price Disclosure Schedule and Schedule, the Price Entities have no liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof, except for health continuation coverage as contemplated required by Section 2.4 4980B of the Code or Part 6 of Title I of ERISA and at no expense to the Price Entities. (j) Except as set forth on Schedule 5.14(j) of the Price Disclosure Schedule, neither the execution and delivery of this AgreementAgreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (i) result in any payment (including, no current without limitation, severance, unemployment compensation, forgiveness of indebtedness or former employee, otherwise) becoming due to any officer, consultant director or director employee of the Company Price Entities under any Employee Benefit Plan or otherwise; (ii) increase any Company Subsidiary will be entitled to benefits otherwise payable under any additional compensation or benefits or Employee Benefit Plan; (iii) result in any acceleration of the time of payment or vesting or any other enhancement of any compensation amounts or benefits under benefits; (iv) require the funding of any trust or other funding vehicle; or (v) limit or prohibit the ability to amend, merge, terminate or receive a reversion of assets from any Employee Benefit Plan as a result of the TransactionsPlan, trust or other funding vehicle. (gk) None of the Price Entities nor any other person, including any fiduciary, has engaged in any "prohibited transaction" (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Employee Benefit Plans or their related trusts, the Price Entities or any person that the Price Entities has an obligation to indemnify, to any tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA that would reasonably be expected to result in a Price Material Adverse Effect. (l) Except as disclosed in Section 3.12(gset forth on Schedule 5.14(1) of the Company Price Disclosure Schedule, there are no pending or threatened claims (other than claims for benefits in the deduction ordinary course), lawsuits or arbitrations which have been asserted or instituted, and, to Knowledge of the Price Group, no set of circumstances exists which may give rise to a claim or lawsuit, against the Plans, any fiduciaries thereof with respect to their duties to the Plans or the assets of any amount payable or benefit provided pursuant of the trusts under any of the Plans, in each case, which could reasonably be expected to result in any material liability of the Price Entities to the terms PBGC, the Department of Treasury, the Benefit PlansDepartment of Labor, any Multiemployer Plan, any Plan, any participant in a Plan, or any other arrangementparty. The Price Entities and each member of their respective business enterprises has complied with the Worker Adjustment and Retraining Notification Act and all similar state, obligation or agreement, whether written or oral, or otherwise will not be local and foreign laws. (m) All Employee Benefit Plans subject to disallowance under Section 280G or 162(mthe laws of any jurisdiction outside of the United States (i) have been maintained in all material respects in accordance with all applicable requirements, (ii) if they are intended to qualify for special tax treatment meet all requirements for such treatment, and (iii) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions. (n) Schedule 5.14(n) of the Code. Except as disclosed in Section 3.12(g) Price Disclosure Schedule sets forth a correct and complete list of the Company Disclosure Scheduletotal amounts due as of the date hereof, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person which may become payable in the event that future (whether actual or contingent or subject to the excise tax satisfaction of Section 4999(a) vesting requirements, performance goals or other conditions), under the terms of each long- or short-term incentive compensation, severance, stay bonus or retention bonus plan, program, arrangement or agreement of any of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of servicePrice Entities, other than (i) coverage mandated by applicable law or stock options granted under the AGC Option Plans and the award agreements thereunder, (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims severance required by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Company Subsidiary, any Commonly Controlled Entity, any Applicable Law in jurisdictions outside of the Benefit PlansUnited States, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Code. (k) Except as disclosed in Section 3.12(a) of the Company Disclosure Schedule, no increase in the compensation or benefits of officers or employees (including pursuant to any Benefit Planagreements that provide for the payment of such required severance, and (iii) made since December 31, 2000 is customary on a periodic basis or required by any agreement or understandingseverance under employment agreements entered into with employees in jurisdictions outside of the United States.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a3.17(a) of the Company Selling Shareholder Disclosure ScheduleSchedule lists each material employment, there existbonus, as of the date hereofincentive compensation, no employment or consulting agreement, collective bargaining agreement or any bonusdeferred compensation, pension, profit sharing, deferred or extra compensationsavings, incentive compensation, stock ownershipretirement, stock purchase, stock option, stock appreciation rights, phantom stock, stock appreciation right leave of absence, vacation, day or dependent care, legal services, cafeteria, life, health, medical, accident, disability or other stock-based incentive, retirement, vacationinsurance, severance, change in of control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other benefit plan, program, agreement, arrangement program or understanding arrangement, including, but not limited to any "employee benefit plan" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (whether or not legally binding) that is sponsored"ERISA"), entered into, established, maintained, sponsored, contributed to or required to be contributed to, or has been entered into to by the Company or any Company Subsidiary its Subsidiaries for the benefit of the current or any person former employees or entity that, together with directors of the Company and its Subsidiariesexisting on the date of this Agreement (each, is treated a "Company Employee Benefit Plan"). (b) With respect to each Company Employee Benefit Plan, to the extent applicable, complete and correct copies of the following documents have been made available to Purchaser as a single employer of the date of this Agreement: (i) all of the currently effective governing plan documents, including, but not limited to, all plan documents, trust agreements, amendments to plan documents or trust agreements, summary plan descriptions, summaries of material modifications, any material written interpretations or descriptions given to plan participants or others, any other material descriptive material delivered to plan participants, and all material annuity contracts or other material funding arrangements or instruments, (ii) the most recent Form 5500 and Schedules thereto, (iii) the most recent determination letter from the Internal Revenue Service ("IRS") related to qualification under Section 414(b), (c), (m) or (o401(a) of the Internal Revenue Code of 1986, as amended (the "Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) the most recent financial statements, and (v) all material contracts the most recent actuarial reports. (c) Except as disclosed in the Company SEC Reports filed prior to the date of this Agreement, as disclosed in Section 3.17(c) of the Selling Shareholder Disclosure Schedule or as would not have a Company Material Adverse Effect, (i) each Company Employee Benefit Plan is in compliance with applicable law, including without limitation ERISA and employee communications relating the Code, (ii) each Company Employee Benefit Plan that is intended to each qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS in which the IRS has found the Company Employee Benefit Plan to be qualified for favorable tax treatment under Section 401(a) of the Code and the related trust to be exempt from tax pursuant to Section 501(a) of the Code and, to the knowledge of the Selling Shareholder, no circumstances exist that would be likely to result in the disqualification of any such Company Employee Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (Except as defined disclosed in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a3.17(d) of the Code have been Selling Shareholder Disclosure Schedule, the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified execution of, and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, performance of the Codetransactions contemplated in, a truethis Agreement (either alone or upon the occurrence of any additional or subsequent events) will not result in any additional or enhanced payment or benefit to any director, complete and correct copy of each such determination letter has been provided to Parentofficer, and no such determination letter has been revoked nor has any event occurred since the date employee former employee or former officer of the most recent determination letter Company or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costsSubsidiaries under any Company Employee Benefit Plan. (e) Neither Except as disclosed in the CompanyCompany SEC Reports filed prior to the date of this Agreement or in Section 3.17(e) of the Selling Shareholder Disclosure Schedule, nor any no Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Employee Benefit Plan that is subject provides material benefits under any life, medical or health Plan to retirees or other terminated employees, other than as required under the health care continuation provisions of Part 6 of Title IV I of ERISA, including without limitation any Subtitle I of ERISA and Section 4980B of the Code ("multiemployer plan" (as defined in Section 4001(a)(3COBRA") of ERISA)or other applicable law. (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Subsidiary contributes to, ever has contributed to, or ever has been required to contribute to any multiemployer plan within the meaning of Section 4001(a)(3) of ERISA or has any liability (including withdrawal liability) under any multiemployer plan. (g) No "reportable event" (as such term is used in Section 4043 of ERISA) or "accumulated funding deficiency" (as such term is defined in section 412 or 4971 of the Code) has occurred with respect to any Company SubsidiaryEmployee Benefit Plan, whether or not waived, that, in either case, reasonably could be expected to result in a Company Material Adverse Effect. (h) Neither the Company nor its Subsidiaries has any Commonly Controlled Entitymaterial liability to the Pension Benefit Guaranty Corporation (the "PBGC") other than for the payment of premiums in the ordinary course, and, to the knowledge of the Selling Shareholder, no circumstances exist that reasonably could be expected to result in any such material liability. (i) Other than routine claims for benefits and claims that reasonably could not be expected to result in a Company Material Adverse Effect, the Selling Shareholder does not have any knowledge of any pending or threatened disputes or lawsuits which have been asserted or instituted against any of the Company Employee Benefit Plans, any the assets of the trust created thereunder nor any trustee or funds under the Company Employee Benefit Plans, the sponsor or administrator thereof of any of the Company Employee Benefit Plans, or against any fiduciary of any of the Company Employee Benefit Plans with respect to the operation of such Company Employee Benefit Plan. The Selling Shareholder has engaged delivered to Purchaser copies of all correspondence regarding any pending or threatened claim against any Company Employee Benefit Plan or the Company or any Subsidiary regarding any matter related to any Company Employee Benefit Plan where such pending or threatened claim could reasonably expected to result in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with Company Material Adverse Effect. (j) To the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B knowledge of the CodeSelling Shareholder, neither the Company nor its Subsidiaries have made any written or oral representation to any employee or former employee of the Company (i) promising or guaranteeing any employer payment or funding for the continuation of medical, dental, life or disability coverage for any period of time beyond the end of the current plan year (except to the extent of coverage required under COBRA), or (ii) concerning the employee benefits of Purchaser unless approved or provided by Purchaser. (k) Except as disclosed in Section 3.12(a) would not reasonably be expected to have a Company Material Adverse Effect, the Selling Shareholder does not have any knowledge of, and has not received written notice of, any pending investigation or pending enforcement action by the PBGC, the Department of Labor (the "DOL"), the IRS, or any Governmental or Regulatory Authority with respect to any of the Employee Benefit Plans. The Company Disclosure Schedulehas delivered to Purchaser copies of all material correspondence with the IRS, no increase in the compensation DOL, the PBGC, or benefits of officers any other Governmental or employees (including pursuant to Regulatory Authority regarding any Benefit Plan) made since December 31, 2000 is customary on a periodic basis pending investigation or required by any agreement or understandingenforcement action.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a3.10(a) of the Company Disclosure ScheduleLetter contains a complete and correct list of each plan subject to ERISA, there exist, as of the date hereof, no employment or consulting agreement, collective bargaining agreement or any each material bonus, pension, profit sharing, deferred or extra compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right or other stockequity-based incentive, retirementseverance, vacation, severancetermination, change in control or termination pay (control, retention, employment, collective bargaining, hospitalization or other termination)medical, life or other insurance, disability, death benefitother welfare, hospitalizationsupplemental unemployment benefits, medicalprofit-sharing, life insurance pension, or other insurance or any other retirement plan, program, agreementagreement or arrangement, arrangement and each other material employee compensation or understanding (benefit plan, program, agreement or arrangement, sponsored, maintained or contributed to by the Company, any of its Subsidiaries or by any trade or business, whether or not legally bindingincorporated (an “ERISA Affiliate”) as of the date hereof, that is sponsored, maintained, contributed to or required to be contributed to, or has been entered into by together with the Company or any Company Subsidiary or any person or entity that, together with of its Subsidiaries would be deemed a “single employer” within the Company and its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (omeaning of section 4001(b) of the Internal Revenue Code Employee Retirement Income Security Act of 19861974, as amended (“ERISA”), or to which the "Code") (Company, any of its Subsidiaries or any ERISA Affiliate of the Company and each ---- such other person or entityis party, an "ERISA Affiliate") for the benefit of any --------------- current or former employeesemployee, officersofficer or director of the Company, consultants any of its Subsidiaries or directors any ERISA Affiliate of the Company or any (the “Company Subsidiary (collectively, the "Benefit Plans"”). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The With respect to each Company Benefit Plan, the Company has made available heretofore delivered to Parent true, complete and correct copies of each of the following documents (including all amendments to such documents), in each case as applicable: (i) each the Company Benefit Plan (or, in the case or a written description of any unwritten Company Benefit Plans, descriptions thereof), Plan not in writing; (ii) a copy of the three most recent recently filed annual reports on Form 5500 filed with the report or Internal Revenue Service (“IRS”) Form 5500 Series with respect to each Company Benefit Plan (if any as to which such a report was required)must be filed, plus including all required schedules related thereto, ; (iii) a copy of the most recent summary plan description for each Benefit Summary Plan for which such summary plan description is required Description of the Company (the “Company Summary Plan Description”), together with all Summaries of Material Modification issued with respect thereto)to such Company Summary Plan Description, with respect to each Company Benefit Plan as to which a summary plan description is required under ERISA; (iv) each if the Company Benefit Plan or any obligations thereunder are funded through a trust or any other funding vehicle, the trust or other funding agreement and group annuity contract the latest financial statements thereof; and (v) the most recent determination, opinion or advisory letter received from the IRS (or a copy of any pending application for a determination letter and any related correspondence from the IRS) with respect to each Company Benefit Plan intended to be qualified under section 401(a) of the Code. (c) No Company Benefit Plan or plan sponsored, maintained, or contributed to by the Company or any of its Subsidiaries currently is or was within six years prior to the Closing Date subject to Title IV or Section 302 of ERISA. No Company Benefit Plan or plan sponsored, maintained, or contributed to by any ERISA Affiliate of the Company is or, to the Knowledge of the Company, was within six years prior to the Closing Date subject to Title IV or Section 302 of ERISA; provided, however, that with respect to any such plan sponsored, maintained, or contributed to within six years prior to the Closing Date by an ERISA Affiliate, neither the Company nor any of its Subsidiaries has incurred or reasonably expects to incur, either directly or indirectly and individually or in the aggregate, any material liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Planplans. (d) All Benefit Plans that are "employee pension benefit plans" (Except as defined has not had, and would not be reasonably expected to have or result in, individually or in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Codeaggregate, a trueCompany Material Adverse Effect, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA, including without limitation any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA). (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors none of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination ERISA Affiliate of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Company Subsidiary, any Commonly Controlled Entity, any of the Company Benefit Plans, any trust created thereunder thereunder, nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which the Company, any such Person or entity of its Subsidiaries or any party dealing with the Benefit Plans or any such trust ERISA Affiliate could be subject to either a civil penalty assessed pursuant to section Section 409 or 502(i) or of ERISA or a tax imposed pursuant to section 4975Section 4975(a) or (b), 4976 or 4980B of the Code. (ke) Except as disclosed has not had, and would not be reasonably expected to have or result in, individually or in the aggregate, a Company Material Adverse Effect, each of the Company Benefit Plans has been operated and administered in accordance with its terms and applicable Laws, including ERISA and the Code. (f) Each of the Company Benefit Plans that is intended to be “qualified” within the meaning of Section 3.12(a401(a) of the Code has received a determination letter from the IRS stating that it is so qualified (or with respect to a prototype, an opinion letter from the IRS to the prototype plan sponsor) and, to the Knowledge of the Company, there are no existing circumstances or any events that have occurred that would reasonably be expected to adversely affect the qualified status of any such Company Benefit Plans or their related trusts. (g) No Company Benefit Plan provides post-termination welfare benefits or retiree welfare benefits to any individual for any reason except (i) as required under section 601 et seq. of ERISA or other applicable law, (ii) disability benefits that have been fully provided for by insurance under a Company Benefit Plan, or (iii) benefits in the nature of severance pay that would not result in, individually or in the aggregate, a Company Material Adverse Effect. (h) The consummation of the transactions contemplated by this Agreement will not, either alone or in combination with any other event which, standing alone, would not by itself trigger such entitlement or acceleration: (i) except as otherwise required by this Agreement (A) entitle any current or former employee, officer or director of the Company, any of its Subsidiaries or any ERISA Affiliate of the Company to any material severance pay, unemployment compensation or any other similar termination payment, or (B) accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due any such employee, officer or director in any material manner; (ii) require a “gross up” or other payment to any “disqualified individual” within the meaning of section 280G(c) of the Code with respect to any taxes that may be due pursuant to Section 4999 of the Code or (iii) except as has not had, and would not reasonably be expected to have or result in, individually or in the aggregate, a Company Material Adverse Effect, result in a loss of compensation deduction for Parent and its Subsidiaries (including the Surviving Corporation) for (A) “excess parachute payments” within the meaning of section 280G(b) of the Code, or (B) payments under any Company Benefit Plans that would not be deductible under section 162(m) of the Code. Section 3.10(h) of the Company Disclosure ScheduleSchedule contains a schedule of, as of the date of this Agreement, the equity-based compensation awards outstanding under the Company Equity Plans, including the number of shares of Company Common Stock subject thereto and the applicable award type and date of grant. (i) Except as has not had, and would not be reasonably expected to have or result in, individually or in the aggregate, a Company Material Adverse Effect, there are no pending or, to the Knowledge of the Company, threatened or anticipated claims by or on behalf of any Company Benefit Plan, by any employee or beneficiary under any such Company Benefit Plan or otherwise involving any such Company Benefit Plan (other than routine claims for benefits). (j) Except as set forth in Section 3.10(j) of the Company Disclosure Letter, no increase in the compensation or benefits of officers or employees (including trust maintained pursuant to any Company Benefit PlanPlan holds securities of the Company or any ERISA Affiliate. (k) made since December 31The Company does not have any obligation to gross up or otherwise reimburse any individual for any excise taxes, 2000 is customary on a periodic basis interest, or required by any agreement or understandingpenalties incurred under section 409A of the Code.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Schedule 4.10 includes a complete list of each employee benefit plan, program or policy, whether written or oral, providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries or any beneficiary or dependent thereof, including without limitation any employee welfare benefit plan within the meaning of Section 3.12(a3(1) of the Company Disclosure Schedule, there existEmployee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder (“ERISA”), any employee pension benefit plan within the meaning of the date hereof, no employment Section 3(2) of ERISA (whether or consulting agreement, collective bargaining agreement or not such plan is subject to ERISA) and any bonus, incentive, deferred compensation, pension, retirement, profit sharing, deferred or extra compensationhealth, incentive compensationwelfare, stock ownershipmedical, dental, hospitalization, insurance, disability, vacation, stock purchase, stock option, phantom restricted stock, stock appreciation right or other stock-based incentive, retirement, vacationcompensation, severance, change in control or termination pay fringe benefit or similar arrangement, plan, program or policy (collectively, the “Company Benefit Plans”). (b) With respect to each Company Benefit Plan, the Company has delivered or made available to Parent a true, correct and complete copy of: (i) all plan documents and trust or other terminationfunding agreements (including any amendments thereto as of the date hereof); (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, if any; (iii) the current summary plan description, if any; (iv) the most recent actuarial report and funding and financial information returns and statements, if any; and (v) the most recent determination letter from the United States Internal Revenue Service (the “IRS”), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other plan, program, agreement, arrangement or understanding if any. (whether or not legally bindingc) The IRS has issued a favorable determination letter with respect to each Company Benefit Plan that is sponsored, maintained, contributed to or required intended to be contributed to, or has been entered into by qualified within the Company or any Company Subsidiary or any person or entity that, together with the Company and its Subsidiaries, is treated as a single employer under meaning of Section 414(b), (c), (m) or (o401(a) of the Internal Revenue Code of 1986, as amended amended, and the rules and regulations promulgated thereunder (the "“Code"”) (and its related trust that has not been revoked, and, to the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors Knowledge of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided aboveCompany, there are no circumstances or events that have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect result in a revocation of such letter or in the inability of the plan sponsor to rely on the letter, which cannot be cured without a Material Adverse Effect. (d) Except as would not have a Material Adverse Effect: (i) the Company has complied, and is now in compliance, with all provisions of ERISA, the Code and all laws and regulations applicable to the Company Benefit Plans and each Company Benefit Plan has been established, administered, invested and, where required, registered, in all material respects in accordance with its qualification terms; and (ii) there are no pending or, to the Company’s Knowledge, threatened claims (other than claims for benefits in the ordinary course), lawsuits, investigations or materially increase its costsarbitrations which have been asserted or instituted against or involving the Company Benefit Plans which could reasonably be expected to result in any material liability of the Company or any Subsidiary to any Person, including any Company Benefit Plan participant or former participant, to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor, any other Governmental Entity, any Multiemployer Plan (as defined in Section 3(37) of ERISA) or any Company Benefit Plan or fiduciary thereof. (e) Neither Except as set forth in Schedule 4.10 or as otherwise provided in Section 2.10 hereof, neither the Companyexecution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in, nor cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any material payment or benefit to any employee, officer or director of the Company or any of its Subsidiaries under any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Benefit Plan that is subject to Title IV of ERISA, including without limitation any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA)Plan. (f) Except as set forth in Schedule 4.10, no Company Benefit Plan (i) is a “defined benefit plan” within the meaning of Section 3.12(e3(35) of ERISA or is a non-qualified plan that provides retirement income on a defined benefit basis, (ii) provides post-retirement benefits (other than as required under Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or other applicable Law), or (iii) is a plan described in Section 413(a) or 413(c) of the Company Disclosure Schedule and as contemplated by Code or Section 2.4 3(40) of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the TransactionsERISA. (g) Except as disclosed in Section 3.12(g) of the The Company Disclosure Schedule, the deduction is not a member of any amount payable or benefit provided pursuant to controlled group, within the terms meaning of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m412(n)(6)(B) of the Code. Except as disclosed in , with any entity other than any of its Subsidiaries, and, except with respect to those Company Benefit Plans that are multiemployer plans (within the meaning of Section 3.12(g4001(a)(3) of the Company Disclosure Schedule, no person is entitled ERISA) listed on Schedule 4.10 to receive any "gross-up" payment from which the Company or any Subsidiary has any liability or contributes (or has at any time contributed or had an obligation to contribute), there are no circumstances pursuant to which the Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax Subsidiary thereof could be liable for any material amount (either directly, secondarily, jointly or contingently) under Title IV of Section 4999(a) ERISA or Sections 4971 through 4980E of the Code is imposed on such personor under Section 502(i) or (1) of ERISA. (h) No Company Benefit Plan provides benefitsholds Company Common Stock, including without limitation death or medical benefits (whether or and the terms of such plans will not insured), with respect to current or former employees, officers, consultants or directors in any way prevent the completion of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension PlanMerger. (i) There are no pending orExcept as does not have a Material Adverse Effect, with respect to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Company Benefit Plan established, maintained or otherwise involving any Benefit Plan contributed to outside the United States of America that is not subject to ERISA, (other than routine and immaterial claims for benefits). (ji) Neither neither the Company nor any Company Subsidiary, of its Subsidiaries has incurred any Commonly Controlled Entity, any of the Benefit Plans, any trust created thereunder nor any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action obligation in connection with which the termination or withdrawal from any such Person or entity or any party dealing with Company Benefit Plan; (ii) the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B present value of the Code. accrued benefit liabilities (kwhether or not vested) Except under each such Company Benefit Plan which is funded, determined as disclosed in Section 3.12(a) of the end of the most recently ended fiscal year of the Company Disclosure Scheduleusing generally accepted and reasonable actuarial assumptions, no increase did not exceed the current value of the assets of such plan, and for each such Company Benefit Plan which is not funded, the obligations thereunder have been accrued in accordance with GAAP as in effect in the compensation United States as of the end of the most recently ended fiscal year of the Company, and are reflected on the Company Financial Statements; (iii) all contributions or benefits premiums required to be made by the Company or its Subsidiaries under the terms of officers each Company Benefit Plan and multi-employer employee benefit plan to which the Company is subject or employees by applicable laws and regulations have been made in a timely manner; and (including pursuant to any iv) all obligations regarding such Company Benefit Plan) made since December 31Plans and multi-employer employee benefit plans have been satisfied, 2000 is customary on a periodic basis there are no outstanding defaults or required violations by any agreement party to such Company Benefit Plans and no Taxes, penalties or understandingfees are owing or eligible in respect of any such Company Benefit Plans.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a3.17(a) of the Company Selling Shareholder Disclosure ScheduleSchedule lists each material employment, there existbonus, as of the date hereofincentive compensation, no employment or consulting agreement, collective bargaining agreement or any bonusdeferred compensation, pension, profit sharing, deferred or extra compensationsavings, incentive compensation, stock ownershipretirement, stock purchase, stock option, stock appreciation rights, phantom stock, stock appreciation right leave of absence, vacation, day or dependent care, legal services, cafeteria, life, health, medical, accident, disability or other stock-based incentive, retirement, vacationinsurance, severance, change in of control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other benefit plan, program, agreement, arrangement program or understanding arrangement, including, but not limited to any “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (whether or not legally binding) that is sponsored“ERISA”), entered into, established, maintained, sponsored, contributed to or required to be contributed to, or has been entered into to by the Company or any Company Subsidiary its Subsidiaries for the benefit of the current or any person former employees or entity that, together with directors of the Company and its Subsidiariesexisting on the date of this Agreement (each, is treated a “Company Employee Benefit Plan”). (b) With respect to each Company Employee Benefit Plan, to the extent applicable, complete and correct copies of the following documents have been made available to Purchaser as a single employer of the date of this Agreement: (i) all of the currently effective governing plan documents, including, but not limited to, all plan documents, trust agreements, amendments to plan documents or trust agreements, summary plan descriptions, summaries of material modifications, any material written interpretations or descriptions given to plan participants or others, any other material descriptive material delivered to plan participants, and all material annuity contracts or other material funding arrangements or instruments, (ii) the most recent Form 5500 and Schedules thereto, (iii) the most recent determination letter from the Internal Revenue Service (“IRS”) related to qualification under Section 414(b), (c), (m) or (o401(a) of the Internal Revenue Code of 1986, as amended (the "“Code") (the Company and each ---- such other person or entity, an "ERISA Affiliate") for the benefit of any --------------- current or former employees, officers, consultants or directors of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available as provided above, there have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto”), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) the most recent financial statements, and (v) all material contracts the most recent actuarial reports. (c) Except as disclosed in the Company SEC Reports filed prior to the date of this Agreement, as disclosed in Section 3.17(c) of the Selling Shareholder Disclosure Schedule or as would not have a Company Material Adverse Effect, (i) each Company Employee Benefit Plan is in compliance with applicable law, including without limitation ERISA and employee communications relating the Code, (ii) each Company Employee Benefit Plan that is intended to each qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS in which the IRS has found the Company Employee Benefit Plan to be qualified for favorable tax treatment under Section 401(a) of the Code and the related trust to be exempt from tax pursuant to Section 501(a) of the Code and, to the knowledge of the Selling Shareholder, no circumstances exist that would be likely to result in the disqualification of any such Company Employee Benefit Plan. (d) All Benefit Plans that are "employee pension benefit plans" (Except as defined disclosed in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a3.17(d) of the Code have been Selling Shareholder Disclosure Schedule, the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified execution of, and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, performance of the Codetransactions contemplated in, a truethis Agreement (either alone or upon the occurrence of any additional or subsequent events) will not result in any additional or enhanced payment or benefit to any director, complete and correct copy of each such determination letter has been provided to Parentofficer, and no such determination letter has been revoked nor has any event occurred since the date employee former employee or former officer of the most recent determination letter Company or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costsSubsidiaries under any Company Employee Benefit Plan. (e) Neither Except as disclosed in the CompanyCompany SEC Reports filed prior to the date of this Agreement or in Section 3.17(e) of the Selling Shareholder Disclosure Schedule, nor any no Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any Employee Benefit Plan that is subject provides material benefits under any life, medical or health Plan to retirees or other terminated employees, other than as required under the health care continuation provisions of Part 6 of Title IV I of ERISA, including without limitation any "multiemployer plan" Subtitle I of ERISA and Section 4980B of the Code (as defined in Section 4001(a)(3“COBRA”) of ERISA)or other applicable law. (f) Except as set forth in Section 3.12(e) of the Company Disclosure Schedule and as contemplated by Section 2.4 of this Agreement, no current or former employee, officer, consultant or director of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors of the Company, any Company Subsidiary or any Commonly Controlled Entity after retirement or other termination of service, other than (i) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There are no pending or, to the Company's knowledge, threatened or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefits). (j) Neither the Company nor any Subsidiary contributes to, ever has contributed to, or ever has been required to contribute to any multiemployer plan within the meaning of Section 4001(a)(3) of ERISA or has any liability (including withdrawal liability) under any multiemployer plan. (g) No “reportable event” (as such term is used in Section 4043 of ERISA) or “accumulated funding deficiency” (as such term is defined in section 412 or 4971 of the Code) has occurred with respect to any Company SubsidiaryEmployee Benefit Plan, whether or not waived, that, in either case, reasonably could be expected to result in a Company Material Adverse Effect. (h) Neither the Company nor its Subsidiaries has any Commonly Controlled Entitymaterial liability to the Pension Benefit Guaranty Corporation (the “PBGC”) other than for the payment of premiums in the ordinary course, and, to the knowledge of the Selling Shareholder, no circumstances exist that reasonably could be expected to result in any such material liability. (i) Other than routine claims for benefits and claims that reasonably could not be expected to result in a Company Material Adverse Effect, the Selling Shareholder does not have any knowledge of any pending or threatened disputes or lawsuits which have been asserted or instituted against any of the Company Employee Benefit Plans, any the assets of the trust created thereunder nor any trustee or funds under the Company Employee Benefit Plans, the sponsor or administrator thereof of any of the Company Employee Benefit Plans, or against any fiduciary of any of the Company Employee Benefit Plans with respect to the operation of such Company Employee Benefit Plan. The Selling Shareholder has engaged delivered to Purchaser copies of all correspondence regarding any pending or threatened claim against any Company Employee Benefit Plan or the Company or any Subsidiary regarding any matter related to any Company Employee Benefit Plan where such pending or threatened claim could reasonably expected to result in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with Company Material Adverse Effect. (j) To the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B knowledge of the CodeSelling Shareholder, neither the Company nor its Subsidiaries have made any written or oral representation to any employee or former employee of the Company (i) promising or guaranteeing any employer payment or funding for the continuation of medical, dental, life or disability coverage for any period of time beyond the end of the current plan year (except to the extent of coverage required under COBRA), or (ii) concerning the employee benefits of Purchaser unless approved or provided by Purchaser. (k) Except as disclosed in Section 3.12(a) would not reasonably be expected to have a Company Material Adverse Effect, the Selling Shareholder does not have any knowledge of, and has not received written notice of, any pending investigation or pending enforcement action by the PBGC, the Department of Labor (the “DOL”), the IRS, or any Governmental or Regulatory Authority with respect to any of the Employee Benefit Plans. The Company Disclosure Schedulehas delivered to Purchaser copies of all material correspondence with the IRS, no increase in the compensation DOL, the PBGC, or benefits of officers any other Governmental or employees (including pursuant to Regulatory Authority regarding any Benefit Plan) made since December 31, 2000 is customary on a periodic basis pending investigation or required by any agreement or understandingenforcement action.

Employee Benefit Plans; ERISA. (a) Except as ----------------------------- disclosed in Section 3.12(a3.10 of the Disclosure Schedule includes a complete list of (i) each material employee benefit plan, program or policy providing benefits to any current or former employee, officer or director of the Company or any of its Subsidiaries or any beneficiary or dependent thereof that is sponsored or maintained by the Company or any of its Subsidiaries, including without limitation any employee welfare benefit plan within the meaning of Section 3(1) of the Company Disclosure Schedule, there existEmployee Retirement Income Security Act of 1974, as amended (“ERISA”), any employee pension benefit plan within the meaning of the date hereofSection 3(2) of ERISA (whether or not such plan is subject to ERISA, no employment or consulting agreement, collective bargaining agreement or but excluding any plan that is a “multiemployer plan” as defined in Section 3(37) of ERISA) and any material bonus, pension, profit sharingincentive, deferred or extra compensation, incentive compensation, stock ownershipvacation, stock purchase, stock option, phantom stock, stock appreciation right or other stock-based incentive, retirement, vacation, severance, employment, change in of control or termination pay (or other termination), disability, death benefit, hospitalization, medical, life insurance or other insurance or any other fringe benefit plan, programprogram or policy (collectively, agreement, arrangement or understanding the “Employee Benefit Plans”) (whether or not legally bindingbut excluding for all purposes of this Section 3.10 other than Section 3.10(i) any Employee Benefit Plan that is sponsored, maintained, contributed primarily subject to or required the laws of any jurisdiction other than the United States) and (ii) each employment and severance agreement pursuant to be contributed to, or has been entered into by which the Company or any Company Subsidiary of its Subsidiaries has or would have any person obligation to provide compensation and/or benefits in an amount or entity thathaving a value in excess of $200,000 per year or $1,000,000 in the aggregate (each, together with a “Material Employment Agreement”). (b) With respect to each Employee Benefit Plan, the Company has delivered or made available to Parent a true, correct and its Subsidiariescomplete copy of: (i) all plan documents and trust agreements; (ii) the most recent Annual Report (Form 5500 Series) and accompanying schedule, is treated as if any; (iii) the current summary plan description, if any; (iv) the most recent annual financial report, if any; (v) the most recent actuarial report, if any; and (vi) the most recent determination letter from the IRS, if any. The Company has delivered or made available to Parent a single employer under Section 414(b)true, correct and complete copy of each Material Employment Agreement. (c)) The Company has received, (m) or (ohas timely applied for, a determination letter with respect to each Employee Benefit Plan that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Internal Revenue Code of 1986, as amended (the "“Code") (“), and the Company related trust that covers the Employee Benefit Plan as amended as of the date of this Agreement, and, to the knowledge of the Company, there are no circumstances and each ---- no events have occurred that could be reasonably expected to adversely affect the qualified status of any such other person Employee Benefit Plan or entitythe related trust, an "ERISA Affiliate") which cannot be cured without a material payment or cost to the Company. All such Employee Benefit Plans have been timely amended for the benefit of any --------------- current or former employees, officers, consultants or directors requirements of the Company or any Company Subsidiary (collectively, the "Benefit Plans"). Since the ------------- versions of documents delivered or made available legislation commonly known as provided above, there “GUST” and “EGTRRA” and have been no adoptions or amendments of any plans, and no adoptions or amendments of plans are contemplated except submitted to conform the plans to changes in applicable laws. (b) The Company has made available to Parent true, complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof), (ii) the three most recent annual reports on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), plus schedules related thereto, (iii) for a favorable determination letter on the most recent summary plan description for each Benefit Plan for which such summary plan description is required (together with all Summaries of Material Modification issued with respect thereto), (iv) each trust agreement and group annuity contract relating to any Benefit Plan (if any such report was required) and (v) all material contracts and employee communications relating to each Benefit PlanGUST requirements within the remedial amendment period prescribed by GUST. (d) All Benefit Plans that are "employee pension benefit plans" (as defined in Section 3(2) of ERISA)(the "Pension Plans"), intended to qualify ------------- under Sections 401(a) and 501(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Pension Plans are so qualified and are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, a true, complete and correct copy of each such determination letter has been provided to Parent, and no such determination letter has been revoked nor has any event occurred since the date of the most recent determination letter or application therefor for each Pension Plan that would reasonably be expected to adversely affect its qualification or materially increase its costs. (e) Neither the Company, nor any Company Subsidiary, nor any ERISA Affiliate has at any time maintained, contributed or been obligated to contribute to any No Employee Benefit Plan that is subject to Title IV of ERISAERISA or Section 412 of the Code, including without limitation any "and no Employee Benefit Plan is a “multiemployer plan" ” (as defined in Section 4001(a)(33(37) of ERISA). Neither the Company nor any of its Subsidiaries has incurred or could incur any liability or obligation under Title IV of ERISA or Section 412 of the Code. Neither the Company nor any of its Subsidiaries has any current or potential liability or obligation on account of being at any time considered a single employer under Section 414 of the Code with any Person other than the Company and its Subsidiaries. (fe) Except as set forth in Section 3.12(e) 3.10 of the Company Disclosure Schedule Schedule, (i) Each Employee Benefit Plan has been maintained, funded and as contemplated by Section 2.4 administered in all material respects in accordance with its terms and with the applicable provisions of this AgreementERISA, no current or former employeethe Code and other applicable laws, officer, consultant or director rules and regulations; (ii) none of the Company or any Company Subsidiary will be entitled to any additional compensation or benefits or any acceleration of the time of payment or vesting or any other enhancement of any compensation or benefits under any Benefit Plan as a result of the Transactions. (g) Except as disclosed in Section 3.12(g) of the Company Disclosure Scheduleits Subsidiaries or, the deduction of any amount payable or benefit provided pursuant to the terms of the Benefit Plans, or any other arrangement, obligation or agreement, whether written or oral, or otherwise will not be subject to disallowance under Section 280G or 162(m) of the Code. Except as disclosed in Section 3.12(g) of the Company Disclosure Schedule, no person is entitled to receive any "gross-up" payment from the Company or any Company Subsidiary, the Surviving Corporation or any other person in the event that the excise tax of Section 4999(a) of the Code is imposed on such person. (h) No Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees, officers, consultants or directors knowledge of the Company, any fiduciary of any Employee Benefit Plan has engaged in any “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA), which could subject any of the Employee Benefit Plans or their related trusts, the Company Subsidiary or any Commonly Controlled Entity after retirement of its Subsidiaries to any material tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA and, to the knowledge of the Company, no fiduciary of any Employee Benefit Plan has any material liability or obligation for breach of fiduciary duty or any other termination of service, other than failure to act in connection with any Employee Benefit Plan; and (iiii) coverage mandated by applicable law or (ii) death benefits or retirement benefits under any Pension Plan. (i) There there are no pending or, to the Company's ’s knowledge, threatened actions, suits, proceedings, audits, hearings, investigations or anticipated claims by or on behalf of any Benefit Plan, by any employee or beneficiary under any Benefit Plan or otherwise involving any Benefit Plan (other than routine and immaterial claims for benefitsbenefits in the ordinary course). (j) , which relate to any of the Employee Benefit Plans or the assets of any of the trusts thereof which could reasonably be expected to result in a material liability to the Company. Neither the Company nor any Company Subsidiaryof its Subsidiaries maintains, contributes to or has any Commonly Controlled Entityobligation or liability with respect to, the provision of any health or life insurance or other welfare-type benefits for current or future retired or terminated directors, officers, employees or contractors (or any spouse or other dependent thereof) other than in accordance with Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code (“COBRA”) or as provided in the Material Employment Agreements or as set forth in Section 3.10(e) of the Disclosure Schedule. The Company and its Subsidiaries have complied and are in compliance in all material respects with the requirements of COBRA. With respect to the Employee Benefit Plans, any trust created thereunder nor any trustee all material payments, premiums, contributions, reimbursements for all periods ending prior to or administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which any such Person or entity or any party dealing with the Benefit Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) or ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B as of the CodeEffective Time shall have been made. (kf) Except as disclosed would not be material or as otherwise contemplated by this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in conjunction with any other event) constitute an event under an Employee Benefit Plan that will or may result in, cause the accelerated vesting, funding or delivery of, or increase the amount or value of, any payment or benefit to any current or former employee, officer, contractor or director of the Company or any of its Subsidiaries. (g) The Company and its Subsidiaries have, for purposes of each Employee Benefit Plan, correctly classified those individuals performing services for the Company and its Subsidiaries as common law employees, leased employees, independent contractors or agents to the extent any failure to correctly classify such individuals would result in a material liability to the Company or any of its Subsidiaries. (h) The amounts owing under the Retention Bonus Plan as of the date hereof and as of the Effective Time are set forth in Section 3.12(a3.10(h) of the Company Disclosure Schedule. The account balances under the Deferred Compensation Plan as of the date hereof and as of the Effective time are set forth in Section 3.10(h) of the Disclosure Schedule. (i) All the Employee Benefit Plans that are primarily subject to the laws of any jurisdictions outside of the United States (collectively, the “Foreign Plans”), which are set forth in Section 3.10(i) to the Disclosure Schedule, no increase have been maintained in the compensation or benefits of officers or employees compliance in all material respects with all applicable laws (including pursuant including, if they are intended to any Benefit Plan) made since December 31qualify for special tax treatment, 2000 is customary on a periodic basis or required by any agreement or understandingapplicable tax laws).