Common use of Employee Benefit Plans; ERISA Clause in Contracts

Employee Benefit Plans; ERISA. (a) Section 3.12(a) of the Company Disclosure Schedule lists (i) each plan, program, arrangement, practice and policy, whether formal or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan within the meaning set forth in Section 3(3) of Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, under which the Company or a Company Subsidiary has any liability, and (iii) the Company Equity Plans (collectively, the “Company Benefit Plans”). (b) The Company has made available to Parent (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Section 3.12(a4.9(a) of the Company Disclosure Schedule lists sets forth a complete list, as of the date hereof, of each Benefit Plan and identifies each Foreign Benefit Plan, other than welfare benefits, fringe benefits and employee policies that are minor in nature (i) each the “Minor Plans”). For purposes of this Agreement, the term “Benefit Plan” shall mean any deferred compensation, bonus or other incentive compensation, stock purchase, stock option or other equity compensation plan, program, arrangement, practice and policy, whether formal agreement or informalarrangement; any severance or termination pay, funded or unfundedmedical, written or oralsurgical, under which any current or former officerhospitalization, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock life insurance or other securities of the Company “welfare” plan, fund or a Company Subsidiary or to receive any compensation program (whether in the form of cash or stock or otherwise) or benefits of any kind or description whatsoever in any material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan within the meaning set forth in of Section 3(33(1) of the Employee Retirement Income Security Act of 1974, as amended 1974 (“ERISA”)); any fringe benefit plan or arrangement; any profit-sharing, whether or not subject to ERISA, under which the Company or a Company Subsidiary has any liability, and (iii) the Company Equity Plans (collectively, the “Company Benefit Plans”). (b) The Company has made available to Parent (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract stock bonus or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing“pension” plan, and fund or program (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f3(2) of the Code ERISA); any employment, termination, change in control, retention or a plan described severance agreement; any other employee benefit plan, fund, program, policy, agreement or arrangement, in Section 413(c) of the Code. Neither each case, that is sponsored, maintained or contributed to or required to be contributed to by the Company nor or any of its Subsidiaries or by any trade or business, whether or not incorporated, that together with the Company Subsidiary has or any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is its Subsidiaries would be deemed a defined benefit pension plan. (d) There have been no prohibited transactions “single employer” within the meaning of Section 406 or Section 407 4001(b) of ERISA or for purposes of Section 4975 414 of the Code (any such trade or business, an “ERISA Affiliate”), or with respect to which the Company, any of its Subsidiaries or any ERISA Affiliate has any liability or contingent liability. For purposes of this Agreement, the Company term “Foreign Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to Plan” means any Company Benefit Plan that could result in any material liability for is subject to the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware laws of any reason likely to result in jurisdiction outside the revocation United States of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending applicationAmerica. The Company has provided Made Available to Parent a true and complete copy of each Benefit Plan, other than any Minor Plans, and all amendments thereto (or, in the most recent Internal Revenue Service favorable determination or opinion letter case of any unwritten Benefit Plans, descriptions thereof) and with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been establishedother than any Minor Plan, maintained a true and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) complete copy of the Company Disclosure Schedulefollowing items (in each case, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) only if applicable): (i) entitle any current or former officer, employee, director each trust or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefitfunding arrangement, (ii) accelerate the timing each summary plan description and summary of any payment or vesting schedulematerial modifications, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger the three most recently filed annual reports on IRS Form 5500, (iv) the most recently received IRS determination letter and (v) any other material obligation under a Company communications to or from the IRS, Department of Labor, Pension Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental Guaranty Corporation or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect Governmental Entity relating to any Company Benefit Planaudit, investigation or dispute. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Section 3.12(aExcept as set forth on Schedule 3.1(l) of the Company Disclosure Schedule lists (i) each plan, program, arrangement, practice and policy, whether formal or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan within the meaning set forth in Section 3(3) of Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, under which the Company or a Company Subsidiary has any liability, and (iii) the Company Equity Plans (collectively, the “Company Benefit Plans”). (b) The Company has made available to Parent (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code.SEC Documents: (i) There are no pending orCompany Employee Benefit Plans established, maintained, contributed to or required to be contributed to, by the knowledge Company or any entity with which the Company is considered a single employer under Section 414(b), (c), (m) or (o) of the CompanyCode (the “Company ERISA Affiliates”), threatened claims with respect and there are no Company Employee Pension Benefit Plans that the Company or any Company ERISA Affiliate has established, maintained, contributed to, or been required to a contribute to, within six years prior to date hereof. As used in this Agreement, “Company Employee Benefit Plan (Plan” means any plan, program, policy, practice, agreement or other than routine and reasonable claims for arrangement providing compensation or benefits made in the ordinary course of the plan’s operations) or with respect any form to the terms and conditions of employment or termination of employment of any current or former officeremployee, employee independent contractor, officer or independent contractor director of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to Subsidiaries or any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement beneficiary or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would resultdependent thereof, whether as a result of the Merger written or the Transactionsunwritten, separately formal or in the aggregate (either alone or together with any other eventinformal, including, any termination of employment) in the payment of (i) without limitation, any “excess parachute paymentemployee welfare benefit plan” within the meaning of Code Section 280G 3(1) of ERISA (a “Company Employee Welfare Benefit Plan”), any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) (iia “Company Employee Pension Benefit Plan”) and any amount that will not be fully deductible as a result other pension, profit-sharing, savings, retirement, bonus, incentive compensation, deferred compensation, executive compensation, vacation, sick pay, stock purchase, stock option, phantom equity, equity compensation, severance, employment, consulting, unemployment, hospitalization or other medical, life, or other insurance, long- or short-term disability, change of Code Section 162(m)control, material fringe benefit, or any other similar plan, program, practice, commitment or policy.

Employee Benefit Plans; ERISA. (a) Section 3.12(a) Item 3.17 of the Company Disclosure Schedule lists (i) each plan, program, arrangement, practice of Exceptions contains a true and policy, whether formal or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director complete list of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each all "employee benefit plan plans," within the meaning set forth in of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), and any other bonus, profit sharing, compensation, severance, deferred compensation, fringe benefit, insurance, welfare, medical, post-retirement health or welfare benefit, life, stock option, stock purchase, disability, termination, retention or other plan, agreement, trust fund or arrangement (whether written or not subject unwritten), maintained, sponsored or contributed to ERISAby the Company or any entity that would be deemed a "single employer" with the Company under Section 414(b), under (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the "Code") or Section 4001 of ERISA (an "ERISA Affiliate") on behalf of any employee of the Company or any ERISA Affiliate (whether current, former or retired) or their beneficiaries or with respect to which the Company or any ERISA Affiliate has or has had any obligation on behalf of any such employee or beneficiary (each a Company Subsidiary has any liability"Plan" and, and (iii) the Company Equity Plans (collectively, the “Company Benefit "Plans”"). (b) The None of the ERISA Affiliates or the Company has made available ever contributed to Parent or contributes to, been required to contribute to, or otherwise participated in or participates in (i) a currentany "multiemployer plan" (within the meaning of Section 4001(a)(3) of ERISA or Section 414(f) of the Code), complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, and (ii) a copy any single employer pension plan (within the meaning of the three (3Section 4001(a)(15) most recent Annual Reports (Form 5500of ERISA) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. Sections 4063 and 4064 of ERISA or (ciii) No Company Benefit Plan is any plan subject to Title IV of ERISA or Section 412 of the Code. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. (c) The Company, each ERISA Affiliate, each Plan and no Company Benefit Plan is a multiemployer each "plan sponsor" (within the meaning of Section 414(f3(16) of ERISA) and each "employee benefit plan" (within the of section 3(3) of ERISA) has complied in all material respects with applicable law including, without limitation, the Code or a plan described and ERISA and each Plan complies with and has been maintained and operated in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any all material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension planrespects in accordance with its terms. (d) There With respect to each of the Plans referenced in item 3.17 of the Schedule of Exceptions: (i) all payments required by any Plan or by law with respect to all periods through the date of the Closing have been made prior to the Closing; (ii) no "prohibited transactions transaction," within the meaning of Section 4975 of the Code and Section 406 of ERISA, has occurred, or to the best of the Company's knowledge is expected to occur, with respect to any Plan which has subjected or could subject the Company, any officer, director or employee thereof or any trustee, administrator or other fiduciary, to a tax or penalty on prohibited transactions imposed by either Section 407 502 of ERISA or Section 4975 of the Code Code, or any other liability with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities thereto; and (iii) no Plan is under audit or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from investigation by the Internal Revenue Service or is entitled to rely on a prototype plan opinion letterthe Department of Labor or any other governmental authority and no such completed audit, and if any, has resulted in the Company is not aware imposition of any reason likely to result in the revocation of any such letter tax or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicablepenalty. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Except as disclosed in the Company SEC Documents, since the audited financial statements for the year ended December 31, 1998 until the date hereof, there has not been any adoption or amendment (or an agreement to adopt or amend) in any material respect by the Company or any of its subsidiaries of any employment or consulting agreement, collective bargaining agreement or any bonus, pension, profit sharing, deferred 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, disability, death benefit, hospitalization, medical or other insurance or any other plan, program, agreement, arrangement or understanding (whether or not legally binding) providing benefits to any current or former employee, officer or director of the Company or any Subsidiary (collectively, the "Benefit Plans"). Except as disclosed in the Company SEC Documents, or in Section 3.12(a3.9(a) of the Company Disclosure Schedule, there exist, as of the date hereof, no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between the Company or any of its Subsidiaries, and any current or former employee, consultant, officer or director of the Company. (b) Section 3.9(b) of the Company Disclosure Schedule lists contains a list and brief description of all "employee pension benefit plans" (ias defined in Section 3(2) each plan, program, arrangement, practice and policy, whether formal or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan within the meaning set forth in Section 3(3) of Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")) (sometimes referred to herein as "Pension Plans"), whether "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) and all other Benefit Plans sponsored, maintained, contributed to or not subject required to ERISAbe contributed to, under which by the Company or a Company Subsidiary has any liabilityof its Subsidiaries or any person or entity that, and (iii) together with the Company Equity Plans and its Subsidiaries, is treated as a single employer under Section 414(b), (collectivelyc), (m) or (o) of the “Internal Revenue Code of 1986, as amended (the "Code") (the Company Benefit Plans”). (band each such other person or entity, a "Commonly Controlled Entity") for the benefit of any current or former employees, officers or directors of the Company or any of its Subsidiaries. The Company has made available to Parent (i) a currenttrue, complete and accurate copy correct copies of (1) each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made or, in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment case of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).unwritten Benefit

Employee Benefit Plans; ERISA. (a) Section 3.12(a3.9(a) of the Company Disclosure Schedule lists (i) Letter contains a complete and correct list as of the date of this Agreement of each bonus, deferred compensation, incentive compensation, stock purchase, stock option, stock appreciation right or other equity-based incentive, severance, termination, change in control, retention, employment, hospitalization or other medical, life or other insurance, disability, other welfare, supplemental unemployment, profit-sharing, pension, or retirement plan, program, agreement or arrangement, practice and policyeach other director or employee compensation or 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 formal or informalnot incorporated (an “ERISA Affiliate”), funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of that together with the Company or any of its Subsidiaries would be deemed a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan “single employer” within the meaning set forth in of Section 3(34001(b) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, under which the Company or a Company Subsidiary has an ERISA Affiliate is party, whether written or oral, for the benefit of any liabilitycurrent or former officer, and employee or director of the Company, any of its Subsidiaries or any ERISA Affiliate (iii) the Company Equity Plans (collectively, the “Company Benefit Plans”). In this Section 3.9, “80%” shall be substituted for “50%” in the definition of “Subsidiary” set forth in Section 8.5. Section 3.9(a) of the Company Disclosure Letter contains the name of the Company’s ERISA Affiiates. (b) The With respect to each Company Plan, the Company has made available heretofore delivered to Parent complete and correct copies of each of the following documents (including all amendments to such documents), as applicable: (i) a current, complete and accurate copy of each the Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary description of each any Company Benefit Plan which is not set forth in writing, and ; (ii) a copy of the three (3) most recent Annual Reports annual report or Internal Revenue Service Form 5500 Series, including all related reports required therewith; (Form 5500iii) a copy of the most recent Summary Company Plan Description (“SPD”), together with all Summaries of Material Modification issued with respect to such SPD and all related exhibits and reports for other material employee communications relating to each Company Benefit Plan distributed by the Company or any of its Subsidiaries from December 31, 2004 to the date of this Agreement; (iv) if the Company Plan or any obligations thereunder are funded through a trust or any other funding vehicle or through insurance, the trust or other funding agreement and the latest financial statements thereof or evidence of insurance coverage thereof; (v) all contracts relating to the Company Plan with respect to which the Company or any ERISA Affiliate may have any material liability, including insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements; (vi) if the Company Plan is subject intended to ERISAqualify under Section 401(a) of the Code, the most recent determination letter received from the Internal Revenue Service; and (vii) all material communications between the Company or any ERISA Affiliate and any Governmental Entity. (c) No Company Benefit Plan in effect as of the date hereof is subject to Title IV or Section 302 of ERISA. No liability under Title IV or Section 302 of ERISA has been incurred by the Company or any ERISA Affiliate that has not been satisfied in full, and no condition exists that would be reasonably likely to result in the Company or any ERISA Affiliate incurring any such liability. Insofar as the representation made in this Section 3.9(c) applies to Sections 4064, 4069 or 4204 of Title IV of ERISA, such representation is made with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which the Company or Section 412 any ERISA Affiliate made, or was required to make, contributions during the five-year period ending on the last day of the Code, and no Company Benefit Plan is a multiemployer most recent plan within year ended prior to the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension planClosing Date. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 None of the Code with respect to Company, any ERISA Affiliate, any of the Company Benefit Plans that could result Plans, any trust created thereunder and, to the knowledge of the Company, any trustee or administrator thereof has engaged in a transaction or has taken or failed to take any action with respect to a Company Plan in connection with which the Company, any of its Subsidiaries or any ERISA Affiliate would be reasonably likely to be subject to a material penaltiescivil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975(a) or (b), taxes, liabilities 4976 or indemnification obligations, 4980B of the Code. (e) All contributions required to be made by the Company and there has been no other event its ERISA Affiliates Subsidiaries with respect to any Company Benefit Plan that could result on or prior to the Closing Date have been timely made or are reflected on the consolidated balance sheet of the Company dated as of December 31, 2004 contained in any material liability for the Specified Company SEC Documents. Since December 31, 2004 there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company or any Company Subsidiary related to any excise Taxes under the Code ERISA Affiliate relating to, or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result change in the revocation terms of employee participation or coverage under, any Company Plan that would increase materially the expense of maintaining such letter or Company Plan above the level of expense incurred in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of respect thereof for the most recent Internal Revenue Service favorable determination or opinion letter with respect fiscal year ended prior to each such Company Benefit Plan, as applicablethe date hereof. (f) Each of the Company Benefit Plan Plans has been established, maintained operated and administered by the Company and its ERISA Affiliates in all material compliance respects in accordance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulationsapplicable Laws, including but not limited to ERISA and the Code. (g) Except as set forth on With respect to each of the Company Plans that is intended to be “qualified” within the meaning of Section 3.12(g401(a) of the Company Disclosure ScheduleCode, the Company has received a currently effective determination letter from the IRS stating that it is so qualified, such letter has not been revoked, and, to the knowledge of the Company, no event has occurred that would be reasonably likely to affect such qualified status. No fund established under a Company Plan is intended to satisfy the requirements of Section 501(c)(9) of the Code. (h) No amounts payable under the Company Plans as a result of the transactions contemplated hereby will fail to be deductible for federal income Tax purposes by virtue of Sections 280G or 162(m) of the Code. (i) No Company Plan provides death, medical, hospitalization or similar benefits (whether or not insured) with respect to any current or former employee of the Company, its Subsidiaries or any ERISA Affiliate after retirement or other termination of service, other than (i) coverage mandated by applicable Law, (ii) death benefits under any “employee pension plan,” as that term is defined in Section 3(2) of ERISA or (iii) benefits, the full direct cost of which is borne by the current or former employee (or beneficiary thereof). (j) The consummation of the Transactions transactions contemplated by this Agreement will not (not, either alone or together in combination with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, officer or director or other independent contractor of the Company, any of its Subsidiaries or any ERISA Affiliate to severance pay, unemployment compensation or any other similar termination payment under any Company Plan, or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing time of any payment or vesting scheduleof, increase the amount of or trigger otherwise enhance any payment or funding (through a grantor trust or otherwise), of compensation or benefits to benefit due any current or former officer, such employee, officer or director or other independent contractor under any Company Plan. (k) To the knowledge of the Company, neither the Company nor any Subsidiary has contributed to a nonconforming group health plan (as defined in Section 5000(c) of the Code) and no ERISA Affiliate of the Company or any of its Subsidiaries has incurred a Tax under Section 5000(a) of the Code which is or could become a liability of the Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Planof its Subsidiaries. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (il) There are is no pending or, to the knowledge of the Company, threatened claims with respect to a material Litigation by, on behalf of or against any Company Benefit Plan by any participant (or beneficiary thereof) in such Company Plan or otherwise involving any such Company Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(mbenefits).

Employee Benefit Plans; ERISA. (a) Section 3.12(a) of the Company Disclosure Schedule lists (i) each plan, program, arrangement, practice and policy, whether formal or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each Each "employee benefit plan within the meaning set forth plan" (as defined in Section 3(3) of Employee Retirement Income Security Act ERISA) and each employment agreement, collective bargaining agreement, consulting agreement, severance agreement, bonus, incentive or deferred compensation, stock option or other equity based, severance, termination, change in control, retention, employment, vacation, medical, dental, life, disability, death benefit, other welfare, profit-sharing, retirement, pension, post-retirement benefits, or other compensation or benefit plan, agreement, policy or arrangement in respect of 1974, as amended (“ERISA”), whether or not subject to ERISA, under which the Company or a Company Subsidiary any of its Subsidiaries has any liability, and (iii) the Company Equity Plans material liability (collectively, the “Company Benefit "Plans”). (b") The Company has made available to Parent (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event filed with respect to any the Filed Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service SEC Documents or is entitled to rely listed on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(gSchedule 2.9(b) of the Company Disclosure Schedule. Except as disclosed in the Filed Company SEC Documents, the consummation Company has not incurred or become subject to any material liability under Title I or IV of ERISA, the penalty or excise tax provisions of the Transactions will not Code relating to employee plans or any similar Laws of a foreign jurisdiction. To the knowledge of the Company, no condition exists or event has occurred that presents a risk to the Company of incurring or becoming subject to any such material liability. (b) All amounts payable under the Plans are deductible for federal income tax purposes and none of the Company and its Subsidiaries will, as a result of the transactions contemplated by this Agreement (either alone or together with other events), make or become obligated to make any other event, including, any termination "excess parachute payment" as defined in Section 280G of employment) (i) entitle any the Code. No current or former officer, employee, director or other director, agent, independent contractor or officer of the Company or a Company any Subsidiary is or will become entitled to any change in control payment or benefit, transaction bonus, severance pay or similar benefitunemployment compensation, (ii) accelerate or any additional or new compensation, benefits or other compensatory payment or an increase in the timing amount of any payment or vesting schedulecompensation, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company compensatory payment in connection with or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or consummation of the Transactions, separately or in transactions contemplated by this Agreement. Neither the aggregate (either alone or together with any other event, including, any termination vesting nor the timing of employment) in the payment of (i) any “excess parachute payment” within the meaning such compensation, benefit or other compensatory payment in respect of Code Section 280G any such employee or (ii) any amount that director has been or will not be fully deductible accelerated in connection with or as a result of Code Section 162(m)the consummation of the transactions contemplated by this Agreement.

Employee Benefit Plans; ERISA. (a) Section 3.12(aSchedule 3.19(a) of the Company Disclosure Schedule Statement lists all (i) each plan, program, arrangement, practice and policy, whether formal or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director “employee pension benefit plans” as defined in Section 3(2) of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan within the meaning set forth in Section 3(3) of Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (“Pension Plans”), whether or not subject to ERISA, under which the Company or a Company Subsidiary has any liability, and ; (ii) “welfare benefit plans” as defined in Section 3(1) of ERISA (“Welfare Plans”); (iii) stock bonus, stock option, restricted stock, phantom stock, stock appreciation right, stock purchase or other equity compensation plan; bonus, profit-sharing plan or other incentive plan; deferred compensation arrangement; severance plan; holiday or vacation plan; retirement or supplemental retirement plan; sabbatical program; medical, heath-related, life or other insurance plan; relocation arrangement; cafeteria (Code Section 125) or dependent care (Code Section 129) benefit; or any other fringe benefit program; and (iv) other employee benefit or compensation plan, agreement (including individual agreement), program, policy or arrangement covering employees, directors and consultants of the Company, any Company Subsidiary any of its or their Company ERISA Affiliates (as hereinafter defined) that either is maintained or contributed to by Company or any of the Company Equity Plans Subsidiaries or any of their Company ERISA Affiliates or to which Company or any of the Company Subsidiaries or any of their Company ERISA Affiliates is obligated to make payments or otherwise may have any liability (collectively, the “Company Employee Benefit Plans”) with respect to employees or other service-providers or former employees or other service-providers of Company, the Company Subsidiaries, or any of their ERISA Affiliates. For purposes of this Agreement, “Company ERISA Affiliate” shall mean any person (as defined in Section 3(9) of ERISA) that is or has been a member of any group of persons described in Section 414(b), (c), (m) or (o) of the Code, including without limitation Company or any of the Company Subsidiaries. (b) The Company and each of the Company Subsidiaries, and each of the Company Employee Benefit Plans, are in compliance with, has made available performed all obligations required under, and is not subject to Parent (i) a currentliability under, complete the applicable provisions of ERISA, the Code and accurate copy other applicable laws, and with the terms of each Company Employee Benefit Plan, except where the failure to comply or the incurrence of the liability has not had, or could not reasonably be expected to have, individually or in the aggregate a Company Material Adverse Effect. Each Company Employee Benefit Plan which is set forth can be amended, terminated or otherwise discontinued at or after the Effective Time in writing (accordance with its terms, without liability to Parent or the Surviving Corporation, and any related trust, insurance contract or other funding arrangement) and a written summary of each no Company Employee Benefit Plan which is not set forth in writing, and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is will be subject to ERISAany surrender fees or service fees upon termination other than the normal and reasonable administrative fees associated with the termination of benefit plans. (c) No All contributions to, and payments from, the Pension Plans which are required to have been made in accordance with the Pension Plans have been timely made, and timely deposits of employee contributions have been made, except where the failure to make such contributions or payments on a timely basis has not had, or could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (d) To the knowledge of Company, all of Company’s Pension Plans and Company’s Subsidiaries’ Pension Plans intended to qualify under Section 401 of the Code so qualify, and no event has occurred and no condition exists with respect to the form or operation of such Pension Plans which would cause the loss of such qualification or the imposition of any material liability, penalty or tax under ERISA or the Code, except for such operational failures as have not had, or could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (e) To the knowledge of Company, there are no (i) investigations pending by any governmental entity involving the Company Employee Benefit Plan Plans, nor (ii) pending or threatened claims (other than routine claims for benefits), suits or proceedings against any Company Employee Benefit Plans, against the assets of any of the trusts under any Company Employee Benefit Plans or, against any fiduciary of any Company Employee Benefit Plans or against Company, any Company Subsidiary or any of its or their Company ERISA Affiliates with respect to the operation of such plan or asserting any rights or claims to benefits under any Company Employee Benefit Plans or against the assets of any trust under such plan, except for those which would not, individually or in the aggregate, give rise to any liability which has had, or could reasonably be expected to have, a Company Material Adverse Effect. To the knowledge of Company, there are no facts which would give rise to any liability under this Section 3.19(e) except for those which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect in the event of any such investigation, claim, suit or proceeding. (f) None of Company, any of the Company Subsidiaries nor any employee of the foregoing, nor any trustee, administrator, other fiduciary or any other “party in interest” or “disqualified person” with respect to the Pension Plans or Welfare Plans, has engaged in a “prohibited transaction” (as such term is defined in Section 4975 of the Code or Section 406 of ERISA) other than such transactions that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. (g) None of Company, any of the Company Subsidiaries, or any of their Company ERISA Affiliates maintains or contributes to, nor have they ever maintained or contributed to, any pension plan subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f) of the Code or a plan described in Section 413(c302 of ERISA. (h) Neither Company nor any Subsidiary of the Code. Neither the Company nor any Company Subsidiary ERISA Affiliate has incurred any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension planERISA or under Code Section 4.13 that has not been satisfied in full. (di) There have been no prohibited transactions Neither Company, any of the Company Subsidiaries nor any of their Company ERISA Affiliates has any material liability (including any contingent liability under Section 4204 of ERISA) with respect to any multiemployer plan, within the meaning of Section 406 or Section 407 3(37) of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penaltiesERISA, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Servicemultiple employer plan, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or 413(c). (j) With respect to each of the Company Employee Benefit Plans, true, correct and complete copies of the following documents have been made available to Parent: (i) the plan document and any related trust agreement, including amendments thereto, (ii) any current summary plan descriptions and other material communications to participants relating to the Company Employee Benefit Plans, (iii) the three most recent Forms 5500, if applicable, and (iv) the most recent United States Internal Revenue Service (“IRS”) determination letter, if applicable. Company or any Company Subsidiary has timely filed and delivered or made available to Parent the three most recent annual reports (Form 5500) and all schedules attached thereto for each Company Employee Benefit Plan that is subject to ERISA and Code reporting requirements, and all material communications with participants, the IRS, the U.S. Department of Labor, or any other governmental authority, administrators, trustees, beneficiaries and alternate payees relating to any Company Employee Benefit Plan. (k) None of the Welfare Plans maintained by Company or any of the Company Subsidiaries provides for continuing benefits or coverage for any participant or any beneficiary of a participant following termination of employment, except as may be required under COBRA, or except at the expense of the participant or the participant’s beneficiary. Company and each of the Company Subsidiaries which maintain a “group health plan” within the meaning of Section 5000(b)(1) of the Code have complied with the notice and continuation requirements of Section 4980B of the Code, COBRA, Part 6 of Subtitle B of Title I of ERISA and the regulations thereunder except where the failure to comply would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. (l) No liability under any Pension Benefit Plan or Welfare Plan has been funded or self-insured nor has any such obligation been satisfied with the purchase of a contract from an insurance company as to which Company or any of the Company Subsidiaries has received notice that such insurance company is in rehabilitation or a comparable proceeding. (m) Neither the consummation of the transactions contemplated by this Agreement, nor any termination of employment or any other service relationship, will result in an increase in the amount that of compensation or benefits or accelerate the vesting or timing of payment of any benefits or compensation payable to or in respect of any employee, director or consultant of Company or any of the Company Subsidiaries. There has been no amendment to, written interpretation or announcement (whether or not written) by Company, any Company Subsidiary or other Company ERISA Affiliate relating to, or change in participation or coverage under, any Company Employee Benefit Plan which would materially increase the expense of maintaining such Company Employee Benefit Plan above the level of expense incurred with respect to such Company Employee Benefit Plan for the most recent fiscal year included in the Company Financial Statements. (n) Schedule 3.19(n) of the Company Disclosure Statement lists each Company Foreign Plan (as hereinafter defined). For purposes hereof, the term “Company Foreign Plan” shall mean any material plan, program, policy, arrangement or agreement maintained or contributed to by, or entered into with, Company or any Subsidiary with respect to employees (or former employees) employed outside the United States to the extent the benefits provided thereunder are not mandated by the laws of the applicable foreign jurisdiction. As regards each Company Foreign Plan, (i) such Company Foreign Plan is in material compliance with the provisions of the legal requirements of each jurisdiction in which such Company Foreign Plan is being maintained; (ii) all contributions to, and material payments from, a Company Foreign Plan which have been required under applicable law or the terms of such plan to be made have been timely made or shall be timely made by the Closing Date (and are reflected as an accrued liability on the Company Balance Sheet); (iii) Company, each Company Subsidiary and any of its or their Company ERISA Affiliates have materially complied with all applicable reporting and notice requirements applicable to such Company Foreign Plan; (iv) there are no pending investigations by any governmental body involving the Company Foreign Plans, and no pending claims, suits or proceedings against such Company Foreign Plan (other than claims for benefits payable in the normal operation of such plan); (v) the consummation of the transactions contemplated by this Agreement will not be fully deductible as itself create or otherwise result in any liability with respect to such Company Foreign Plan; and (vi) no condition exists that would prevent Company, any Company Subsidiary, or any of its or their Company ERISA Affiliates from terminating or amending any Company Foreign Plan at any time for any reason in accordance with the terms of each such Company Foreign Plan without the payment of fees, costs or expenses (other than payment of benefits accrued on the Balance Sheet and any normal and reasonable administrative expenses typically incurred in a result of Code Section 162(mtermination event).

Employee Benefit Plans; ERISA. (a) Section 3.12(a4.11(a) of the Company Disclosure Schedule lists (i) contains a true and complete list of each employment, bonus, deferred compensation, incentive compensation, restricted stock, performance unit, phantom stock, dental, health, accident, life, accidental death and dismemberment, fringe, cafeteria, scholarship, flexible spending arrangement or reimbursement, group legal services, long term care, dependent care, vacation, paid time off, sick leave, educational assistance, wellness, employee assistance program, adoption assistance, vision, voluntary employees beneficiary association, other insurance, stock purchase, stock option, stock appreciation right or other stock-based incentive, severance, change-in-control, or termination pay, hospitalization or other medical, disability, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement and each other employee benefit plan, program, agreement or arrangement, practice and policysponsored, whether formal maintained or informal, funded contributed to or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of required to be contributed to by the Company or a any Company Subsidiary has Subsidiary, or by any right to employmenttrade or business, to purchase whether or receive any stock or other securities of not incorporated (an "ERISA Affiliate"), that together with the Company or a any Company Subsidiary 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 material amount or under which the Company or would be deemed a Company Subsidiary has any material liability, (ii) each employee benefit plan "single employer" within the meaning set forth in Section 3(3of section 4001(b)(1) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), for the benefit of any current or former employee or director of the Company, or any Company Subsidiary or any ERISA Affiliate, whether formal or not subject informal and with respect to ERISA, under which the Company or a Company Subsidiary has any liability, and ERISA Affiliate may have any liabilities or obligations (iiithe "Plans"). Section 4.11(a) of the Company Equity Disclosure Schedule separately identifies each of the Plans that is an "employee welfare benefit plan," or "employee pension benefit plan" as such terms are defined, respectively, in sections 3(1) and 3(2) of ERISA (collectively, such plans being hereinafter referred to collectively as the “Company Benefit "ERISA Plans”"). (b) The Except as disclosed in Section 4.11(b) of the Company Disclosure Schedule, with respect to each of the Plans, the Company has made available heretofore delivered to Parent true and complete copies of each of the following documents, as applicable: (i) the Plan (including all amendments thereto) for each written Plan or a currentwritten description of any Plan that is not otherwise in writing; (ii) the annual report on Internal Revenue Service ("IRS"") Form 5500 Series, complete if required under ERISA or the Internal Revenue Code of 1986, as amended (the "Code""), with respect to each Plan for the last three plan years ending prior to the date of this Agreement for which such a report was filed; (iii) the actuarial report, if required under ERISA, with respect to each ERISA Plan for the last three plan years ending prior to the date of this Agreement; (iv) the most recent Summary Plan Description, together with all Summary of Material Modifications issued with respect to such Summary Plan Description, if required under ERISA, with respect to each ERISA Plan, and accurate copy of all other material employee communications relating to each Company Benefit ERISA Plan; (v) if the Plan which is set forth in writing (and funded through a trust or any related trustother funding vehicle, insurance contract the trust or other funding arrangementagreement (including all amendments thereto) and a written summary of the latest financial statements thereof, if any; (vi) all contracts relating to the Plans with respect to which the Company, any Company Subsidiary or any ERISA Affiliate may have any liability, including insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements; and (vii) the most recent determination letter received from the IRS with respect to each Company Benefit Plan which that is not set forth in writing, and (iiintended to be qualified under section 401(a) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISACode. (c) No liability under Title IV of ERISA has been incurred by the Company, any Company Subsidiary or any ERISA Affiliate since the effective date of ERISA that has not been satisfied in full, and, to the Company's knowledge, no condition exists that presents a material risk to the Company, any Company Subsidiary or any ERISA Affiliate of incurring any liability under such Title, other than liability for premiums due to the Pension Benefit Guaranty Corporation ("PBGC"), which payments have been or will be made when due. Insofar as the representation made in this Section 4.11(c) applies to section 4064, 4069 or 4204 of ERISA, it is made with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which the Company, any Company Subsidiary or any ERISA Affiliate made, or was required to make, contributions during the six-year period ending on the last day of the most recent plan year ended before the date of this Agreement. The PBGC has not instituted proceedings to terminate any Plan and no condition exists that presents a material risk that such proceedings will be instituted. (d) With respect to each of the ERISA Plans that is subject to Title IV of ERISA (a "Title IV Plan"), the present value of projected benefit obligations under such Plan, as determined by the Plan's actuary based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Plan's actuary with respect to such Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Plan allocable to such projected benefit obligations. (e) None of the Company, any Company Subsidiary, any ERISA Affiliate, any of the Plans, any trust created thereunder, nor to the Company's knowledge, any trustee or Section administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which the Company, any Company Subsidiary or any ERISA Affiliate could be subject to any material liability for either a civil penalty assessed pursuant to section 409 or 502(i) of ERISA or a tax imposed pursuant to section 4975, 4976 or 4980B of the Code. (f) All contributions and premiums required to be paid under the terms of each of the ERISA Plans and section 302 of ERISA and section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within have, to the meaning of Section 414(f) extent due, been paid in full or properly recorded on the financial statements or records of the Code Company or a plan described Company Subsidiary. No Plan or any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in Section 413(c) section 302 of ERISA or section 412 of the Code. Neither ), whether or not waived. (g) With respect to any Title IV Plan that is a "multiemployer pension plan," as such term is defined in section 3(37) of ERISA, (i) neither the Company nor any ERISA Affiliate has, since May 11, 1987, made or suffered a "complete withdrawal" or a "partial withdrawal," as such terms are respectively defined in sections 4203 and 4205 of ERISA, (ii) no event has occurred that presents a material risk of such a complete or partial withdrawal, and neither Company Subsidiary nor any ERISA Affiliate has been assessed any withdrawal liability, (iii) neither the Company nor any ERISA Affiliate has any material contingent liability under section 4204 of ERISA, (iv) no circumstances exist that present a material risk that any such Plan will go into reorganization and (v) to the knowledge of the Company, there is no unfunded liability with respect to the Company's participation in any such Plan. The Company has no liability or other obligation under any such Plan other than the liability to make contributions in respect of benefit liabilities arising in the ordinary and ongoing course of business. If any Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit "multiemployer pension plan," neither the Company nor any ERISA Affiliate would have any aggregate withdrawal liability if a complete withdrawal by the Company and the ERISA Affiliates were to occur under each such Plan on the date hereof. (dh) There have been no prohibited transactions within the meaning No Plan is described in section 4063(a) of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (ei) Each Company Benefit Plan which is intended to be qualified under Except as disclosed in Section 401(a4.11(i) of the Code has either received a favorable determination letter from the Internal Revenue ServiceCompany Disclosure Schedule, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy each of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan Plans has been established, maintained operated and administered in all material compliance respects in accordance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulationsapplicable laws, including but not limited to ERISA and the Code. (gj) Each of the ERISA Plans that is intended to be "qualified" within the meaning of section 401(a) of the Code is so qualified or may be retroactively amended within the remedial amendment period under Section 401(b) of the Code to be so qualified. Except as disclosed in Section 4.11(j) of the Company Disclosure Schedule, the Company has applied for and received a currently effective determination letter from the IRS stating that it is so qualified, and no event has occurred which would affect such qualified status. With respect to each ERISA Plan set forth in Section 4.11(j) of the Company Disclosure Schedule, the Company has set forth in Section 4.11(j) of the Company Disclosure Schedule the reasons for any potential failure of such ERISA Plan to be so qualified. (k) Any Plan that is intended to satisfy the requirements of section 501(c)(9) of the Code has so satisfied such requirements. (l) Except as set forth disclosed in Section 4.11(l) of the Company Disclosure Schedule, no amounts payable (individually or collectively and whether in cash, capital stock of the Company or other property) under any of the Plans or any other contract, agreement or arrangement with respect to which the Company or any Company Subsidiary may have any liability will, as a direct or indirect result of the Transactions, fail to be deductible for federal income tax purposes by virtue of section 162(m) or section 280G of the Code or, to the knowledge of the Company, section 162(a) of the Code. (m) No Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than (i) coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, (ii) death benefits or retirement benefits under any "employee pension plan," as that term is defined in section 3(2) of ERISA, (iii) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary) or (iv) deferred compensation benefits accrued as liabilities on the books of the Company or a Company Subsidiary). (n) Except as disclosed in Section 3.12(g4.11(n) of the Company Disclosure Schedule, the consummation of the Transactions transactions contemplated by this Agreement will not (not, either alone or together in combination with any other event, including, any termination of employment) (i) entitle any current or former employee, officer, employee, director or other independent contractor consultant of the Company or a Company, any Company Subsidiary or any ERISA Affiliate to severance pay, unemployment compensation or any change in control payment other similar termination payment, or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing time of any payment or vesting schedulevesting, or trigger increase the amount of, or otherwise enhance, any payment or funding (through a grantor trust or otherwise), of compensation or benefits benefit due to any current or former such employee, officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Planconsultant. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (io) There are no pending or, to the knowledge of the Company's knowledge, threatened or anticipated claims with respect to a Company Benefit by or on behalf of any Plan, by any employee or beneficiary under any such Plan or otherwise involving any such Plan (other than routine and reasonable claims for benefits made benefits). (p) Except as disclosed in the ordinary course Section 4.11(p) of the plan’s operationsCompany Disclosure Schedule or as expressly permitted by this Agreement, since December 31, 2000, there has not been (i) any acceleration, amendment or change of the period of exercisability or vesting of any options or restricted stock, stock bonus or other awards under any Option Plan (including any discretionary acceleration of the exercise periods or vesting by the Company Board of Directors or any committee thereof or any other persons administering an Option Plan) or authorization of cash payments in exchange for any Options, restricted stock, stock bonus or other awards granted under any of such Option Plans or (ii) any adoption or amendment by the Company or any Company Subsidiary of any collective bargaining agreement or Plan. None of the Company, any Company Subsidiary nor any ERISA Affiliate has any formal plan or commitment to create any additional Plan or modify or change any existing Plan that would affect any current or former employee or director of the Company, any Company Subsidiary or any ERISA Affiliate. (q) Except with respect to changes required by law, there has been no adoption of, amendment to, written interpretation or announcement (whether or not written) by the Company or any Company Subsidiary relating to, or change in employee participation or coverage under, any Plan which would increase materially the expense of maintaining such Plan above the level of the expense incurred in respect thereof for the fiscal year ended on December 31, 2000. (r) Neither the Company nor any ERISA Affiliate is a party to any agreement or understanding, whether written or unwritten, with the PBGC, the IRS, the Department of Labor or the Health Care Financing Administration. (s) No representations or communications, oral or written, with respect to the participation, eligibility for benefits, vesting, benefit accrual or coverage under any Plan have been made to employees, directors or agents (or any of their representatives or beneficiaries) of the Company which are not in accordance with the terms and conditions of employment or termination the Plans. (t) No "leased employee," as that term is defined in section 414(n) of employment of any current or former officerthe Code, employee or independent contractor of performs services for the Company or a any ERISA Affiliate. Neither the Company Subsidiarynor any ERISA Affiliate has (i) used the services or workers provided by third party contract labor suppliers, which claims could temporary employees, "leased employees," or individuals who have provided services as independent contractors, and who may have become eligible to participate in the Plans or (ii) used the services of individuals to an extent that would reasonably be expected to result in the disqualification of any material liability of the Plans or the imposition of penalties or excise taxes with respect to the Plans by the IRS, the Department of Labor, the PBGC, or any other Governmental Entity. (u) With respect to each Plan established or maintained outside of the United States of America primarily for benefit of employees of the Company or any Company Subsidiary residing outside the United States of America (a Company Subsidiary"Foreign Benefit Plan"): (i) all employer and employee contributions to each Foreign Benefit Plan required by law or by the terms of such Foreign Benefit Plan have been made, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to if applicable, accrued, in accordance with normal accounting practices; (ii) the knowledge fair market value of the Companyassets of each funded Foreign Benefit Plan, has been proposed the liability of each insurer for any Foreign Benefit Plan funded through insurance or the book reserve established for any Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Effective Time, with respect to any Company all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Benefit PlanPlan and no transaction contemplated by this Agreement shall cause such assets or insurance obligations to be less than such benefit obligations; and (iii) each Foreign Benefit Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Section 3.12(a) Set forth on Schedule 2.27(a), is a complete and accurate list of all Employee Benefit Plans under which any of the Company Disclosure Schedule lists Company’s employees, or any dependents thereof, participates or benefits or are eligible to participate or benefit. (b) As used in this Agreement, the term “Employee Benefit Plans” means: (i) each plan, program, arrangement, practice and policy, whether formal or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each “employee benefit plan plan” or “plan” within the meaning set forth in of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, under which the Company or a Company Subsidiary has any liability, and (iii) the Company Equity Plans (collectively, the “Company Benefit Plans”). (b) The Company has made available to Parent (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, ; and (ii) a copy of all plans or policies providing for “fringe benefits” (including vacation, paid holidays, personal leave, employee discounts, educational benefits or similar programs), and each other bonus, incentive compensation, deferred compensation, profit sharing, stock, severance, retirement, health, life, disability, group insurance, employment, stock option, stock purchase, stock appreciation right, performance share, supplemental unemployment, layoff, consulting, or any other similar plan, agreement, policy or understanding (whether written or oral, qualified or nonqualified, currently effective or terminated), and any trust, escrow or other agreement related thereto, which: (A) is or has been established, maintained or contributed to by Seller or the three Company or any other corporation or trade or business under common control with Seller (3an “ERISA Affiliate”) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. as determined under Section 414(b), (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f(m) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to Seller, or with respect to which Seller has or may have any liability that could affect Seller or Seller’s assets, properties, operations, or activities; or (B) provides benefits, or describes policies or procedures applicable, to any present or former director, officer or employee of Seller or any dependent thereof, regardless of whether funded. Employee Benefit Plans also includes any written or oral representations made to any present or former director, officer or employee of the Company Benefit Plans that could result in material penalties, taxes, liabilities promising or indemnification obligations, and there has been no other event with respect to guaranteeing any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any employer payment or funding (through a grantor trust for the continuation of medical, dental, life or otherwise), disability coverage for any period of compensation or benefits to any current or former officer, employee, director or other independent contractor time beyond the end of the Company or a Company Subsidiary, or current plan year (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither except to the Company nor any Company Subsidiary has any liability in respect extent of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as coverage required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Section 3.12(a4.8(a) of the Company Disclosure Schedule lists (i) sets forth a list of each material deferred compensation, bonus or other incentive compensation, stock purchase, stock option and other equity compensation plan, program, agreement or arrangement; each material severance or termination pay, practice medical, surgical, hospitalization, life insurance and policyother "welfare" plan, whether formal fund or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary or to receive any compensation program (whether in the form of cash or stock or otherwise) or benefits of any kind or description whatsoever in any material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan within the meaning set forth in Section 3(3of section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")); each material profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of section 3(2) of ERISA); each material employment, termination or severance agreement; and each other material employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by the Company or by any trade or business, whether or not subject incorporated, that together with the Company would be deemed a "single employer" within the meaning of section 4001(b) of ERISA (any such trade or business, an "ERISA Affiliate"), or to ERISA, under which the Company or a Company Subsidiary has an ERISA Affiliate is party, whether written or oral, for the benefit of any liability, and (iii) employee of the Company Equity Plans or any of its Subsidiaries, other than any "multiemployer plan" within the meaning of section 3(37) of ERISA) (collectively, the “Company "Benefit Plans”"). (b) . The Company has made available to Parent (i) a current, true and complete and accurate copy of each Company Benefit Plan which is set forth and all amendments thereto (or in writing (and the case of any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which that is not set forth in writing, a written description thereof). (b) Except as would not, individually or in the aggregate, be material to the Company and (ii) its Subsidiaries, taken as a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for whole, each Company Benefit Plan which is subject to ERISAnow and has been operated in accordance with the requirements of all applicable Laws, including ERISA and the Code, and in accordance with its terms. (c) No Company Each Benefit Plan is subject intended to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(fqualify under section 401(a) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is each trust intended to be qualified qualify under Section 401(asection 501(a) of the Code has either received a favorable determination determination, opinion, notification or advisory letter from the United States Internal Revenue ServiceService (the "IRS") with respect to such Benefit Plan as to its qualified status under the Code, or has pending an application remaining a period of time under applicable treasury regulations of the Code or IRS pronouncements in which to apply for such a letter and make any amendments necessary to obtain a favorable determination letter from as to the Internal Revenue Service or is entitled qualified status of such Benefit Plan. (d) With respect to rely on a prototype plan opinion letter, and the Company each Benefit Plan that is not aware a "multiemployer plan" (within the meaning of any reason likely to result in the revocation section 3(37) or 4001(a)(3) of any such letter ERISA) or except as would not, individually or in the Internal Revenue Service declining aggregate, have a Company Material Adverse Effect: (i) no liability under Title IV or section 302 of ERISA has been incurred by the Company or any ERISA Affiliate that has not been satisfied in full, (ii) to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy the knowledge of the most recent Internal Revenue Service favorable determination Company, no condition exists that presents a material risk to the Company or opinion letter any ERISA Affiliate of incurring a material liability under Title IV of ERISA and (iii) the Pension Benefit Guaranty Corporation has not instituted proceedings under section 4042 of ERISA to terminate any Benefit Plan and, to the knowledge of the Company, no condition exists that presents a material risk that such proceedings will be instituted. (e) To the knowledge of the Company, there are no material unresolved claims or disputes under the terms of, or in connection with, any Benefit Plan (other than routine claims for benefits), and, as of the date hereof, no action, legal or otherwise, has been commenced with respect to each any such material claim, except as would not, individually or in the aggregate, have a Company Benefit Plan, as applicableMaterial Adverse Effect. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the The consummation of the Transactions transactions contemplated by this Agreement will not (not, either alone or together in combination with any other another event, including, any termination of employment) (i) entitle any current or former employee, officer, employee, or director or other independent contractor of the Company or any ERISA Affiliate to severance pay, unemployment compensation or any other payment under a Company Subsidiary to any change in control payment Benefit Plan or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing time of any payment or vesting scheduleof benefits, or trigger materially increase the amount of compensation, due any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, such employee, officer or director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Section 3.12(a3.16(a) of the Company Disclosure Schedule lists (i) sets forth a true and complete list of each plan, program, arrangement, practice and policy, whether formal or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) Benefit Plan. “Benefit Plan” means each employee benefit plan plan, policy, Contract or agreement (including employment agreements, change of control agreements and severance agreements, deferred compensation, incentive compensation, bonus, stock option, equity-based and stock purchase plans) of any type (including “employee benefit plans” within the meaning set forth in of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) written and oral, sponsored, maintained, contributed to or required to be contributed to by the Company, any of the Company Subsidiaries or any trade or business, whether or not subject to ERISAincorporated (an “ERISA Affiliate”), under which that together with the Company or a Company Subsidiary has any liability, and (iii) the Company Equity Plans (collectively, the would be deemed to be a “Company Benefit Plans”). (b) The Company has made available to Parent (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan single employer,” within the meaning of Section 414(f4001(b)(1) of ERISA, or a member of their controlled group or affiliated service group under Code Section 414, for the benefit of current or former employees, consultants or directors of the Company or any of the Company Subsidiaries or any ERISA Affiliate or with respect to which the Company or any of the Company Subsidiaries or any of their ERISA Affiliates has or may have any Liability or responsibility. The term “ERISA Affiliate” shall also include any entity that was an ERISA Affiliate of the Company or Company Subsidiaries. Section 3.16(a) of the Code Company Disclosure Schedule separately lists or a plan described in Section 413(c) identifies each Benefit Plan that is not sponsored or maintained by the Company or any of the CodeCompany Subsidiaries. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company formal plan or commitment, whether legally binding or not, to create any additional Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA modify or Section 4975 of the Code with respect to change any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company existing Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a1) Section 3.12(a4.10(a) of the Company Disclosure Schedule lists (i) DISCLOSURE SCHEDULE contains a true, correct and complete list of each bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, practice and policyeach other employee benefit plan, whether formal program, agreement or informalarrangement, funded sponsored, maintained or unfunded, written contributed to or oral, under which any current or former officer, employee, individual independent contractor or director of required to be contributed to by the Company or a any Company Subsidiary has or by any right to employmenttrade or business, to purchase whether or receive any stock or other securities of not incorporated (an "ERISA Affiliate"), that together with the Company or a any Company Subsidiary 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 material amount or under which the Company or would be deemed a Company Subsidiary has any material liability, (ii) each employee benefit plan "single employer" within the meaning set forth in of Section 3(3) 4001 of the Employee Retirement Income Security Act of 1974, as amended amended, and the rules and regulations promulgated thereunder (“"ERISA”"), whether for the benefit of any employee or not subject to ERISAterminated employee of the Company, under which the Company or a any Company Subsidiary has or any liabilityERISA Affiliate, whether formal or informal (individually a "Plan" and (iii) collectively the Company Equity Plans (collectively, the “Company Benefit "Plans”"). (b) The Company has made available to Parent (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or . Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f4.10(a) of the Code or a plan described DISCLOSURE SCHEDULE identifies each of the Plans that is an "employee benefit plan," as that term is defined in Section 413(c3(3) of ERISA (such plans being hereinafter referred to individually as an "ERISA Plan" and collectively as the Code"ERISA Plans"). Neither the Company nor any Company Subsidiary nor any ERISA Affiliate has any material liability under Title IV formal plan or commitment, whether legally binding or not, to create any additional Plan or modify or change any existing Plan in a way that would affect any employee or terminated employee of ERISA. No the Company, any Company Benefit Plan maintained for Subsidiary or any ERISA Affiliate, nor has any intention to do any of the benefit foregoing been communicated to any employee or terminated employee of employees outside the United States is a defined benefit pension planCompany, any Company Subsidiary or any ERISA Affiliate. (d2) There have been no prohibited transactions within With respect to each of the meaning Plans, the Company has heretofore made available to the Investors true, correct and complete copies of Section 406 or Section 407 each of the following documents: (i) a copy of the Plan (including all amendments thereto); (ii) a copy of the annual report, if required under ERISA or Section 4975 of the Code other applicable laws, with respect to any each such Plan for the last two years; (iii) a copy of the Company Benefit Plans that could result in material penaltiesactuarial report, taxesif required under ERISA or other applicable laws, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit each such Plan for the last two years; and (iv) the most recent determination letter received from the IRS or other taxing authority with respect to each Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401 of the Code or other applicable Laws relating to Taxes. (3) Except as set forth in Section 4.10(c) of the DISCLOSURE SCHEDULE, no ERISA Plan is subject to Title IV of ERISA. No liability under Title IV of ERISA has been incurred by the Company, any Company Subsidiary or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to the Company, any Company Subsidiary or any ERISA Affiliate of incurring a liability under Title IV of ERISA, other than liability for premiums due the Pension Benefit Guaranty Corporation ("PBGC") (which premiums have been paid when due). The PBGC has not instituted any proceeding to terminate any ERISA Plan and, to the knowledge of the Company and Xxxx, no condition exists that presents a material risk that any such proceeding will be instituted. (4) Except as set forth in Section 4.10(d) of the DISCLOSURE SCHEDULE, no ERISA Plan is a "multiemployer plan," as such term is defined in Section 3(37) of ERISA, nor is any ERISA Plan a plan described in Section 4063(a) of ERISA. If any ERISA Plan is a "multiemployer pension plan," (i) neither the Company, any Company Subsidiary nor any ERISA Affiliate has made or suffered a "complete withdrawal" or a "partial withdrawal," as such terms are respectively defined in sections 4203 and 4205 of ERISA (or any liability resulting therefrom has been satisfied in full), (ii) no event has occurred that presents a material risk of a partial withdrawal, (iii) neither the Company, any Company subsidiary nor any ERISA Affiliate has any contingent liability under section 4204 of ERISA, and (iv) no circumstances exist that must present a material risk that any such plan will go into reorganization. If any ERISA Plan is a "multiemployer pension plan," the aggregate withdrawal liability of the Company, Company Subsidiaries and ERISA Affiliates, computed as if a complete withdrawal by the Company, Company Subsidiaries and ERISA Affiliates had occurred under each such Plan on the date hereof, would not be material to the Company. (5) Each Plan has been operated and administered in accordance with its terms and applicable Law in all material respects, including, but not limited to, ERISA, the Code and other applicable Laws relating to Taxes. (6) (i) Each ERISA Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or other applicable Laws relating to Taxes is entitled to rely on a prototype plan opinion letter, so qualified and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy trusts maintained thereunder are exempt from taxation under Section 501(a) of the most recent Internal Revenue Service favorable determination Code or opinion letter other applicable Laws relating to Taxes; and (ii) each Plan that is intended to satisfy the requirements of Section 501(c)(9) of the Code or other applicable Laws relating to Taxes has so satisfied such requirements. (7) No amounts payable under any of the Plans will fail to be deductible for federal or other income tax purposes by virtue of Section 280G of the Code or other applicable Laws relating to Taxes. (8) Except as listed and described in Section 4.10(h) of the DISCLOSURE SCHEDULE, no Plan provides benefits, including death or medical benefits (whether or not insured), with respect to each such current or former employees of the Company, any Company Benefit Plan, Subsidiary or any ERISA Affiliate beyond their retirement or other termination of service except as applicablerequired by applicable law. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g9) Except as set forth on listed and described in Section 3.12(g4.10(i) of the DISCLOSURE SCHEDULE, neither the performance by the Company Disclosure Schedule, or Xxxx of this Agreement or any of the Ancillary Agreements nor the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officerdirector, employee, director officer or other independent contractor employee of the Company or a Company Subsidiary any ERISA Affiliate to severance pay, unemployment compensation or any change in control payment other payment, or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing time of any payment or vesting schedulevesting, or trigger any payment or funding (through a grantor trust or otherwise), increase the amount of compensation due any such director, officer or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i10) There are no pending or, to the knowledge of the Companypending, threatened or anticipated claims with respect to a Company Benefit by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine and reasonable claims for benefits made in benefits). (11) Notwithstanding the ordinary course foregoing provisions of this Section 4.10, Section 4.10(k) of the plan’s operationsDISCLOSURE SCHEDULE lists each Plan maintained outside the United States (collectively, the "Foreign Plans"), and the Investors hereby acknowledge that the foregoing provisions of Section 4.10 (c), (d), (e), (f) or with and (g) do not apply to such Foreign Plans. With respect to each Foreign Plan, to the extent applicable: (i) such plan is, and has been, established, registered, qualified, administered and invested in compliance with all applicable Laws and labor agreements, and no events have occurred or conditions exist that could jeopardize such status; (ii) such plan is in material compliance and has been maintained in all material respects in accordance with its terms or rules and applicable Law or any applicable labor agreement, all documents that are required to be filed have been filed, and all tax approvals and clearances have been obtained; (iii) all required contributions have been made; all required premiums have been paid (each in a timely fashion in accordance with the terms of such plan and conditions of employment all applicable Laws and labor agreements); there are no going concern unfunded actuarial liabilities, past service unfunded liabilities or termination of employment of solvency deficiencies respecting any current such plan; no Taxes penalties or former officer, employee fees are owing under any such plan; (iv) no government audit or independent contractor of the Company or a Company Subsidiary, which claims similar proceeding is pending nor have any governmental assessments been issued; and (v) no event has occurred that could reasonably be expected to result in cause any material liability to Governmental Entity (without the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge consent of the Company) to wind-up or terminate such plan, has been proposed with respect in whole or in part, or which could reasonably be expected to any Company Benefit Plan. (j) Neither adversely affect the tax status thereof, and there are no outstanding defaults or violations under such plan by the Company nor does the Company have any Company Subsidiary is knowledge of any default or violation by any other party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Codesuch plan. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Section 3.12(a3.9(a) of the Company Disclosure Schedule lists (i) each Letter contains a list of all the Company Benefit Plans. As used in this Agreement, “Company Benefit Plan” means any qualified or non-qualified employee benefit plan, program, policy, practice, agreement, Contract or other arrangement, practice and policyregardless of whether written, regardless of whether formal or informalU.S.-based, funded or unfunded, written or oral, under which including any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each “employee welfare benefit plan plan” within the meaning set forth in of Section 3(33(1) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (including post-retirement medical and life insurance), any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (regardless of whether or not such plan is subject to ERISA), under including any multiemployer plan (as defined in Section 3(37) of ERISA) or multiple employer plan (as defined in Section 413 of the Code), any employment or severance agreement or other arrangement, and any employee benefit, bonus, incentive, deferred compensation, profit sharing, vacation, stock, stock purchase, stock option, severance, change of control, fringe benefit or other plan, program, policy, practice, agreement, Contract, or other arrangement, regardless of whether subject to ERISA and regardless of whether funded, (i) that provides benefits to (x) any current or former employee, officer or director of the Company or any of its Subsidiaries or any trade or business, regardless of whether incorporated, which is required to be treated as a single employer together with an entity pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA (an “ERISA Affiliate”) or (y) any beneficiary or dependent of any such employee, officer or director, (ii) in which any of the foregoing is a participant, (iii) that is sponsored , maintained or contributed to by the Company or any of its Subsidiaries or ERISA Affiliates or to which the Company or any of its Subsidiaries or ERISA Affiliates is a party or is obligated to contribute, or (iv) with respect to which the Company Subsidiary or any of its Subsidiaries or ERISA Affiliates has any liability, and (iii) the Company Equity Plans (collectivelywhether direct or indirect, the “Company Benefit Plans”). (b) The Company has made available to Parent (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract contingent or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) otherwise. No Company Benefit Plan is a defined benefit pension plan or is subject to Section 302 or Title IV of ERISA or Section 412 of the Code, and no . No Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f3(37) of the Code or a plan described in Section 413(c) ERISA. No liability under Title IV of the Code. Neither ERISA has been incurred by the Company nor or any ERISA Affiliate which has not been satisfied in full and no event has occurred and no connection exists that could result in the Company Subsidiary has or any ERISA Affiliate incurring a material liability under Title IV of ERISA. No The Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 has provided or Section 407 of ERISA or Section 4975 of the Code with respect made available to any Parent true and complete copies of the Company Benefit Plans that could result in material penaltiesand, taxesif applicable, liabilities or indemnification obligationsall amendments thereto, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability the most recent trust agreements, the Forms 5500 for the Company prior three years, the most recent determination or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) opinion letters of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype (the “IRS”), summary plan opinion letterdescriptions, and the Company is not aware any summaries of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has material modifications provided to Parent a copy of participants since the most recent Internal Revenue Service favorable determination or opinion letter with respect summary plan descriptions, material notices to each such Company Benefit Planparticipants, as funding statements, the three most recent summary annual reports and actuarial reports, if applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together material correspondence with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Governmental Entity for each Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Section 3.12(a4.8(a) of the Company Disclosure Schedule lists (i) sets forth a list of each material deferred compensation, bonus or other incentive compensation, stock purchase, stock option and other equity compensation plan, policy, program, agreement or arrangement; each material severance or termination pay, practice medical, surgical, hospitalization, life insurance and policyother “welfare” plan, whether formal fund or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary or to receive any compensation program (whether in the form of cash or stock or otherwise) or benefits of any kind or description whatsoever in any material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan within the meaning set forth in Section 3(3of section 3(1) of the Employee Retirement Income Security Act of 1974, as amended 1974 (“ERISA”)); each material profit-sharing, stock bonus or other “pension” plan, fund or program (within the meaning of section 3(2) of ERISA) other than any plan that is a “multiemployer plan,” as defined in Section 3(37) of ERISA (“Multiemployer Plan”); each material employment, retention, change in control, termination or severance agreement; and each other material employee benefit plan, fund, program, policy, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by the Company or by any trade or business, whether or not subject incorporated, that together with the Company would be deemed a “single employer” within the meaning of section 4001(b) of ERISA (any such trade or business, an “ERISA Affiliate”), or to ERISA, under which the Company or a an ERISA Affiliate is party, whether written or oral, for the benefit of any employee of the Company Subsidiary has or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries could incur any direct or indirect liability, whether contingent or otherwise (each, disregarding any materiality qualifier, a “Benefit Plan” and (iii) the Company Equity Plans (collectively, the “Company Benefit Plans”). (b) . “Foreign Benefit Plan” means any Benefit Plan that is subject to the laws of any jurisdiction outside the United States. The Company has made available to Parent a true and complete copy of (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth and all amendments thereto (or in writing (and the case of any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which that is not set forth in writing, and a written description thereof), (ii) a copy of the three (3) most recent Annual Reports trust instruments or insurance contracts, (iii) the most recent Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code 5500 filed with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letterany similar reports filed with Governmental Entities in non-U.S. jurisdictions having authority over any Foreign Benefit Plan and all schedules thereto, (iv) the most recent audited financial statements, (v) the most recent actuarial valuations, and (vi) the Company is not aware of any reason likely to result in the revocation of any such most recent determination or opinion letter or in issued by the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation approval under a Company Benefit Plannon-U.S. Law. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Section 3.12(a4.14(a)(1) of the Company Grande Disclosure Schedule lists (i) contains a true and complete list of each individual or group compensation or benefit plan, program, arrangementfund, practice and policy, whether formal agreement or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary or to receive any compensation (whether in the form of cash or stock or otherwise) or benefits arrangement of any kind or description whatsoever in any material amount or under which the Company or a Company Subsidiary has any material liability, type (ii) each employee benefit plan within the meaning set forth including plans described in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), that is sponsored, maintained, contributed to or required to be contributed to by Grande Holdings or Grande Operating or any entity, trade or business, whether or not subject incorporated, which together with Grande Holdings or Grande Operating would be or has of any relevant time been deemed a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA (a “Grande ERISA Affiliate”), or with respect to ERISA, under which the Company Grande Holdings or a Company Subsidiary Grande Operating has any liabilityLiability, including each bonus, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, performance awards, retirement, vacation, severance, salary continuation, disability, death benefit, cafeteria/flexible benefits, hospitalization, medical, dependent care assistance, tuition reimbursement or scholarship program, fringe benefits or other plan, arrangement or understanding providing benefits to any former or retired employee, officer, consultant, independent contractor, agent or director of Grande Holdings or Grande Operating (each, a “Legacy Employee”) or any current employee, officer, consultant, independent contractor, agent or director of Grande Holdings or Grande Operating (each, a “Grande Employee”) or any other Person and any employment, consulting, severance, termination, change in control or indemnification agreement, arrangement or understanding covering any Grande Employee or Legacy Employee or between Grande Holdings, Grande Operating and any Grande Employee or Legacy Employee or any other Person, without regard to whether the same constitutes an employee benefit plan under ERISA or the number of employees (iii) the Company Equity Plans (collectively, the “Company Grande Benefit Plans”). Section 4.14(a)(2) of the Grande Disclosure Schedule also lists each employment, severance or similar agreement with respect to which Grande Holdings, Grande Operating or any Grande ERISA Affiliate has any Liability (“Grande Employee Agreement”). (b) The Company has made available Except as set forth in Section 4.14(b) of the Grande Disclosure Schedule, with respect to Parent each Grande Benefit Plan: (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract if intended to qualify under Section 401(a) or other funding arrangement401(k) and a written summary of each Company Benefit Plan which is not set forth in writing, and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, such plan satisfies the requirements of such sections, has received a favorable determination or opinion letter from the Internal Revenue Service with respect to its qualification, and no Company Benefit Plan is a multiemployer plan within the meaning of its related trust has been determined to be exempt from Tax under Section 414(f501(a) of the Code and nothing has occurred to the knowledge of Grande Holdings that could reasonably be expected to adversely affect such qualification or a exemption; (ii) each such plan described has been maintained, funded, and administered in Section 413(c) of accordance with its terms and in compliance with the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV requirements of ERISA. No Company Benefit Plan maintained , the Code and all applicable Law; (iii) none of Grande Holdings, Grande Operating or any Grande ERISA Affiliate has engaged in, and to the knowledge of Grande Holdings and Grande Operating no other Person has engaged in, any transaction or acted or failed to act in any manner that would subject Grande Holdings, Grande Operating or any Grande ERISA Affiliate to any Liability for a breach of fiduciary duty under ERISA; (iv) no Actions are pending or, to the benefit knowledge of employees outside Grande Holdings, threatened; (v) none of Grande Holdings, Grande Operating or any Grande ERISA Affiliate has engaged in, and to the United States is a defined benefit pension plan. (d) There have been knowledge of Grande Holdings no prohibited transactions within the meaning other Person has engaged in, any transaction in violation of Section 406 406(a) or Section 407 (b) of ERISA or Section 4975 of the Code; (vi) there have been no “reportable events” within the meaning of Section 4043 of ERISA; (vii) all contributions, premium payments and other distributions, reimbursements and payments, for all time periods prior to and ending on the Closing Date have been made on a timely basis (within, where applicable, the time limit established under Section 302 of ERISA or Code Section 412); (viii) no notice of intent to terminate such plan has been given under Section 4041 of ERISA and no event has occurred or circumstance exists that may constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, such plan; (ix) all reports and filings with any Governmental Authority (including the Department of Labor and the Pension Benefit Guaranty Corporation) and any Tax Authority have been timely made; and (x) except for defined benefit plans (if applicable), such plan may be terminated on a prospective basis without any continuing liability for benefits other than benefits accrued to the date of such termination. All contributions which are required and which have not been made have been properly recorded on the books of Grande Holdings, Grande Operating or a Grande ERISA Affiliate. Except as set forth in Section 4.14(b) of the Grande Disclosure Schedule, no event has occurred with respect to Grande Holdings, Grande Operating or a Grande ERISA Affiliate in connection with which Grande Holdings or Grande Operating would be subject to any Liability, lien or Encumbrance with respect to any Grande Benefit Plan or any employee benefit plan described in Section 3(3) of ERISA maintained, sponsored or contributed to by a Grande ERISA Affiliate. (c) Except as set forth in Section 4.14(c) of the Company Benefit Plans that could result in material penaltiesGrande Disclosure Schedule, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Grande Benefit Plan that could is subject to Title IV of ERISA, other than a “multiemployer plan” as defined in Section 3(37) of ERISA (each a “Title IV Plan”): (i) Grande Holdings, Grande Operating and each Grande ERISA Affiliate have satisfied the minimum funding standard under Section 302 of ERISA and Section 412 of the Code and no waiver of any minimum funding standard or any extension of any amortization period has been requested or granted; (ii) Grande Holdings, Grande Operating and each Grande ERISA Affiliate have paid all amounts due to the Pension Benefit Guaranty Corporation pursuant to Section 4007 of ERISA; (iii) none of Grande Holdings, Grande Operating or any Grande ERISA Affiliate has filed a notice of intent to terminate any Title IV Plan or has adopted any amendment to treat a Title IV Plan as terminated, and the Pension Benefit Guaranty Corporation has not instituted proceedings to treat any Title IV Plan as terminated; (iv) no accumulated funding deficiency, whether or not waived, exists with respect to any Title IV Plan, and no event has occurred or circumstance exists that may result in an accumulated funding deficiency as of the last day of the immediately preceding plan year of any material liability for the Company such Title IV Plan; (v) none of Grande Holdings, Grande Operating or any Company Subsidiary related Grande ERISA Affiliate has incurred or is expected to incur any excise Taxes Liability to the Pension Benefit Guaranty Corporation or otherwise under Title IV of ERISA. Grande Holdings, Grande Operating and the Code Grande ERISA Affiliates have no Liability under Sections 4063 or 4064 of ERISA; (vi) since the last valuation date for each Title IV Plan, no event has occurred or circumstance exists that would increase the amount of benefits under any Title IV Plan or that would cause the excess of Title IV Plan assets over benefit liabilities (as defined in Section 4001 of ERISA) to decrease, or the amount by which benefit liabilities exceed assets to increase; and (vii) no Title IV Plan is considered to be in “at risk” status under Section 430 of the Code. (d) Except as set forth in Section 4.14(d) of the Grande Disclosure Schedule, no Grande Benefit Plan is nor has Grande Holdings, Grande Operating or any liabilities Grande ERISA Affiliate ever sponsored, maintained, contributed to or been required to contribute to, and none of them has any Liability under or with respect to, a “multiemployer plan” (as defined in Section 4001(a)(3) of ERISA or ERISA Section 3(37)), a “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code), or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on in Section 3.12(g4.14(e) of the Company Grande Disclosure Schedule, no Grande Benefit Plan or Grande Employee Agreement provides or contains any obligation to provide post-termination health or life insurance benefits (except as required pursuant to COBRA). Except as set forth in Section 4.14(e) of the Grande Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) shall not accelerate the timing time of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), ) of compensation or benefits, increase the amount payable or trigger any other Liability under any Grande Benefit Plan or any Grande Employee Agreement or result in any breach or violation of, or default under, any Grande Benefit Plan or any similar benefits, and (ii) shall not cause any payments or benefits to any current employee to be either subject to an excise Tax or former officer, employee, director non-deductible to Grande Holdings or other independent contractor Grande Operating under Sections 4999 and 280G of the Company Code, respectively. (f) With respect to each Grande Benefit Plan and Grande Employee Agreement, Grande Holdings has made available to Parent complete and correct copies of (as applicable): (i) the most recent determination letter or a Company Subsidiaryopinion received from the U.S. Internal Revenue Service; (ii) all pending applications for rulings, determinations or opinions filed with any Governmental Authority (including the U.S. Department of Labor and the Pension Benefit Guaranty Corporation) or Tax Authority; (iii) trigger any other material obligation under a Company Benefit Planthe Form 5500 annual report, accompanying schedules, and audited financial statements for the most recent fiscal or plan year; (iv) the most recently prepared actuarial valuation report (if applicable); and (v) all plan documents (including all amendments thereto), trust agreements, and summary plan descriptions. (hg) Except as set forth in Section 4.14(g) of the Grande Disclosure Schedule, Grande Holdings, Grande Operating and all Grande ERISA Affiliates have complied and are in compliance with the requirements of COBRA. Neither the Company Grande Holdings nor any Company Subsidiary Grande Operating has any liability in respect Liability as a consequence of post-retirement health, medical or life insurance benefits for at any current or former officer, employee, director or independent contractor except time being treated as required to avoid excise Tax a single employer with any other Person under Section 4980B 414 of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Section 3.12(a3.9(a) of the Company Disclosure Schedule lists (i) Letter contains a complete and correct list as of the date of this Agreement of each bonus, deferred compensation, incentive compensation, stock purchase, stock option, stock appreciation right or other equity-based incentive, severance, termination, change in control, retention, employment, hospitalization or other medical, life or other insurance, disability, other welfare, supplemental unemployment, profit-sharing, pension, or retirement plan, program, agreement or arrangement, practice and policyeach other director or employee compensation or 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 formal or informalnot incorporated (an “ERISA Affiliate”), funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of that together with the Company or any of its Subsidiaries would be deemed a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan “single employer” within the meaning set forth in of Section 3(34001(b) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, under which the Company or a Company Subsidiary has an ERISA Affiliate is party, whether written or oral, for the benefit of any liabilitycurrent or former officer, and employee or director of the Company, any of its Subsidiaries or any ERISA Affiliate (iii) the Company Equity Plans (collectively, the “Company Benefit Plans”). (b) The With respect to each Company Plan, the Company has made available heretofore delivered to Parent complete and correct copies of each of the following documents (including all amendments to such documents), as applicable: (i) a current, complete and accurate copy of each the Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary description of each any Company Benefit Plan which is not set forth in writing, and ; (ii) a copy of the three (3) most recent Annual Reports annual report or Internal Revenue Service Form 5500 Series, including all related reports required therewith; (Form 5500iii) a copy of the most recent Summary Company Plan Description (“SPD”), together with all Summaries of Material Modification issued with respect to such SPD and all related exhibits and reports for other material employee communications relating to each Company Benefit Plan distributed by the Company or any of its Subsidiaries from December 31, 2003 to the date of this Agreement; (iv) if the Company Plan or any obligations thereunder are funded through a trust or any other funding vehicle or through insurance, the trust or other funding agreement and the latest financial statements thereof or evidence of insurance coverage thereof; (v) all contracts relating to the Company Plan with respect to which the Company or any ERISA Affiliate may have any material liability, including insurance contracts, investment management agreements, subscription and participation agreements and record keeping agreements; (vi) if the Company Plan is subject intended to ERISAqualify under Section 401(a) of the Code, the most recent determination letter received from the Internal Revenue Service; and (vii) all material communications between the Company or any ERISA Affiliate and any Governmental Entity. (c) No Company Plan in effect as of the date hereof is subject to Title IV or Section 302 of ERISA. No liability under Title IV or Section 302 of ERISA has been incurred by the Company or any ERISA Affiliate that has not been satisfied in full, and no condition exists that would be reasonably likely to result in the Company or any ERISA Affiliate incurring any such liability, other than liability for premiums due to the Pension Benefit Plan Guaranty Corporation (which premiums have been paid when due). Insofar as the representation made in this Section 3.9(c) applies to Sections 4064, 4069 or 4204 of Title IV of ERISA, such representation is made with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which the Company or Section 412 any ERISA Affiliate made, or was required to make, contributions during the five-year period ending on the last day of the Code, and no Company Benefit Plan is a multiemployer most recent plan within year ended prior to the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension planClosing Date. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 None of the Code with respect to Company, any ERISA Affiliate, any of the Company Benefit Plans that could result Plans, any trust created thereunder and, to the knowledge of the Company, any trustee or administrator thereof has engaged in material penaltiesa transaction or has taken or failed to take any action with respect to a Company Plan in connection with which the Company, taxesany of its Subsidiaries or any ERISA Affiliate would be reasonably likely to be subject to a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to Section 4975(a) or (b), liabilities 4976 or indemnification obligations, 4980B of the Code. (e) All contributions required to be made by the Company and there has been no other event its Subsidiaries with respect to any Company Benefit Plan that could result on or prior to the Closing Date have been timely made or are reflected on the consolidated balance sheet of the Company dated as of September 30, 2004 contained in any material liability for the Specified Company SEC Documents. Since September 30, 2004, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company or any Company Subsidiary related to any excise Taxes under the Code ERISA Affiliate relating to, or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result change in the revocation terms of employee participation or coverage under, any Company Plan that would increase materially the expense of maintaining such letter or Company Plan above the level of expense incurred in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of respect thereof for the most recent Internal Revenue Service favorable determination or opinion letter with respect fiscal year ended prior to each such Company Benefit Plan, as applicablethe date hereof. (f) Each of the Company Benefit Plan Plans has been established, maintained operated and administered by the Company and its Subsidiaries in all material compliance respects in accordance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulationsapplicable Laws, including but not limited to ERISA and the Code. (g) Except as set forth on With respect to each of the Company Plans that is intended to be “qualified” within the meaning of Section 3.12(g401(a) of the Company Disclosure ScheduleCode, the Company has received a currently effective determination letter from the IRS stating that it is so qualified, such letter has not been revoked, and, to the knowledge of the Company, no event has occurred that would be reasonably likely to affect such qualified status. No fund established under a Company Plan is intended to satisfy the requirements of Section 501(c)(9) of the Code. (h) No amounts payable under the Company Plans as a result of the transactions contemplated hereby will fail to be deductible for federal income Tax purposes by virtue of Sections 280G or 162(m) of the Code. (i) No Company Plan provides death, medical, hospitalization or similar benefits (whether or not insured) with respect to any current or former employee of the Company, its Subsidiaries or any ERISA Affiliate after retirement or other termination of service, other than (i) coverage mandated by applicable Law, (ii) death benefits under any “employee pension plan,” as that term is defined in Section 3(2) of ERISA or (iii) benefits, the full direct cost of which is borne by the current or former employee (or beneficiary thereof). (j) The consummation of the Transactions transactions contemplated by this Agreement will not (not, either alone or together in combination with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, officer or director or other independent contractor of the Company, any of its Subsidiaries or any ERISA Affiliate to severance pay, unemployment compensation or any other similar termination payment under any Company Plan, or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing time of any payment or vesting scheduleof, increase the amount of or trigger otherwise enhance any payment or funding (through a grantor trust or otherwise), of compensation or benefits to benefit due any current or former officer, such employee, officer or director or other independent contractor under any Company Plan. (k) To the knowledge of the Company, neither the Company nor any Subsidiary has contributed to a nonconforming group health plan (as defined in Section 5000(c) of the Code) and no ERISA Affiliate of the Company or any of its Subsidiaries has incurred a Tax under Section 5000(a) of the Code which is or could become a liability of the Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Planof its Subsidiaries. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (il) There are is no pending or, to the knowledge of the Company, threatened claims with respect to a material Litigation by, on behalf of or against any Company Benefit Plan by any participant (or beneficiary thereof) in such Company Plan or otherwise involving any such Company Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(mbenefits).

Employee Benefit Plans; ERISA. (a) Section 3.12(a4.11(a) of the Company Disclosure Schedule lists contains a true and complete list of each (i) each deferred compensation, bonus or other incentive compensation, stock purchase, stock option and other equity compensation plan, program, agreement or arrangement, practice and policy, whether formal or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, ; (ii) each employee benefit plan severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning set forth in Section 3(3of section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”")); (iii) profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of section 3(2) of ERISA); (iv) employment, termination or severance agreement; and (v) other employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by the Company or by any trade or business, whether or not subject to incorporated (an "ERISA AFFILIATE"), that together with the Company would be deemed a "single employer" within the meaning of section 4001(b) of ERISA, under or to which the Company or a an ERISA Affiliate is party, whether written or oral, for the benefit of any employee or former employee of the Company or any Company Subsidiary (the "PLANS"). Section 4.11(a) of the Company Disclosure Schedule identifies each of the Plans that is subject to section 302 or Title IV of ERISA or section 412 of the Code (the "TITLE IV PLANS"). Neither the Company, any Company Subsidiary nor any ERISA Affiliate has any liabilitycommitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Plan that would affect any employee or former employee of the Company or any Company Subsidiary. Except with respect to the representations and warranties contained in subsections (a) and (iiih) the Company Equity Plans (collectivelyof this Section 4.11, the “Company Benefit Plans”representations contained in this Section 4.11 shall not apply to any Plan that is a "multiemployer pension plan," as defined in section 4063(a) of ERISA (a "MULTIEMPLOYER PLAN"). (b) The With respect to each Plan, the Company has heretofore delivered or made available to Parent Buyer true and complete copies of each of the following documents: (i) a current, complete and accurate copy of each Company Benefit the Plan which is set forth in writing (and any related trust, insurance contract amendments thereto (or other funding arrangement) and if the Plan is not a written summary of each Company Benefit Plan which is not set forth in writingPlan, and a description thereof); (ii) a copy of the three (3) two most recent Annual Reports annual reports or Form 5500 and actuarial reports, if required under ERISA, and the most recent report prepared with respect thereto in accordance with Statements of Financial Accounting Standards Nos. 87 and 106; (Form 5500iii) a copy of the most recent summary, including but not limited to, any summary plan description required under ERISA with respect thereto as well as any formal or informal communication to employees under or in respect of any Plan; (iv) if the Plan is funded through a trust or any third party funding vehicle, a copy of the trust or other funding agreement and all related exhibits the latest financial statements thereof; and (v) the most recent determination letter as well as any other material correspondence received from the Internal Revenue Service with respect to each Plan intended to qualify under section 401 of the Internal Revenue Code of 1986, as amended (the "CODE") and, if such letter does not consider changes in qualification requirements made by the Uruguay Round Agreements Act, the Small Business Job Protection Act of 1996, the Uniformed Services Employment and reports Reemployment Rights Act of 1994, the Taxpayer Relief Act of 1997, the Internal Revenue Service Restructuring and Reform Act of 1988 and the Community Renewal Tax Relief Act of 2000 (collectively, "GUST"), the complete GUST determination letter application, including the latest determination letters for each Company Benefit Plan which is subject to ERISAany merged-in qualified plans, the Internal Revenue Service letter acknowledging receipt of such GUST application, and any subsequent correspondence with or from the IRS in connection with the GUST application. (c) No Except as set forth in Section 4.11(c) of the Company Disclosure Schedule, no liability under Title IV or section 302 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 material risk to the Company or any ERISA Affiliate of incurring any such liability, other than liability for premiums due the Pension Benefit Plan Guaranty Corporation ("PBGC") (which premiums have been paid when due). Insofar as the representation made in this Section 4.11(c) applies to sections 4064, 4069 or 4204 of Title IV of ERISA, it is made with respect to any employee benefit plan, program, agreement or arrangement subject to Title IV of ERISA to which the Company or Section 412 any ERISA Affiliate made, or was required to make, contributions during the five (5) year period ending on the last day of the Code, and no Company Benefit Plan is a multiemployer most recent plan within year ended prior to the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension planClosing. (d) There have been The PBGC has not instituted proceedings to terminate any Title IV Plan and no prohibited transactions within condition exists that presents a material risk that such proceedings will be instituted. (e) Except as set forth in Section 4.11(e) of the meaning Company Disclosure Schedule, with respect to each Title IV Plan, the present value of accrued 30 benefits under such plan, based upon the actuarial assumptions used for accounting purposes measured in accordance with Statement of Financial Accounting Standards No. 87 in the most recent actuarial report prepared by such plan's actuary with respect to such plan did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits. (f) Except as set forth in Section 406 4.11(f) of the Company Disclosure Schedule, no Title IV Plan or Section 407 any trust established thereunder has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA or Section 4975 and section 412 of the Code Code), whether or not waived, as of the last day of the most recent fiscal year of each Title IV Plan ended prior to the Closing. (g) All contributions required to be made with respect to any Plan on or prior to the Closing have been timely made or are reflected in the Financial Statements of the Company Benefit Plans that could result as of September 28, 2003. Except as set forth in material penaltiesSection 4.11(g) of the Company Disclosure Schedule, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for amendment to, written interpretation of or announcement (whether or not written) by the Company or any Company Subsidiary related relating to, or change in employee participation or coverage under, any Plan that would increase materially the expense of maintaining such Plan above the level or expense incurred in respect thereof for the most recent fiscal year ended prior to any excise Taxes under the Code or to any liabilities under ERISAdate hereof. (eh) Each Company Benefit Plan which is intended to be qualified under Except as set forth in Section 401(a4.11(h) of the Code Company Disclosure Schedule, no Title IV Plan is a Multiemployer Plan, nor is any Title IV Plan a plan described in section 4063(a) of ERISA. With respect to any Title IV Plan that is a "multiemployer pension plan," (i) neither the Company nor any ERISA Affiliate has either received made or suffered a favorable determination letter from "complete withdrawal" or a "partial withdrawal," as such terms are respectively defined in sections 4203 and 4205 of ERISA (or any liability resulting therefrom has been satisfied in full), (ii) no event has occurred that presents a material risk of a partial withdrawal, (iii) neither the Internal Revenue Service, Company nor any ERISA Affiliate has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letterany contingent liability under section 4204 of ERISA, and (iv) to the knowledge of the Company is not aware of or any reason likely to result in the revocation of Company Subsidiary, no circumstances exist that present a material risk that any such letter or in plan will go into reorganization. With respect to any Title IV Plan that is a "multiemployer pension plan," the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy aggregate withdrawal liability of the most recent Internal Revenue Service favorable determination or opinion letter with respect to Company and its ERISA Affiliates, computed as if a complete withdrawal by the Company and the ERISA Affiliates had occurred under each such Company Benefit PlanPlan on the date hereof, as applicablewould not exceed $33,432,589. (fi) Neither the Company or any Company Subsidiary, any Plan, any trust created thereunder, nor any trustee or administrator thereof has engaged in a transaction in connection with which the Company or any Company Subsidiary, any Plan, any such trust, or any trustee or administrator thereof, or any party dealing with any Plan or any such trust could reasonably be expected to be subject to either a civil penalty assessed pursuant to section 409 or 502(i) of ERISA or a tax imposed pursuant to section 4975 or 4976 of the Code. (j) Each Company Benefit Plan has been established, maintained operated and administered in all material compliance respects in accordance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulationsapplicable law, including but not limited to ERISA and the Code. (gk) Each Plan intended to be "qualified" within the meaning of section 401(a) of the Code is so qualified and the trusts maintained thereunder are exempt from taxation under section 501(a) of the Code. Each Plan intended to satisfy the requirements of section 501(c)(9) of the Code has satisfied such requirements. (l) Except as set forth on in Section 3.12(g4.11(l) of the Company Disclosure Schedule, no Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Company or any Company Subsidiary for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable law, (ii) death benefits under any "pension plan," or (iii) benefits the full cost of which is borne by the current or former employee (or his beneficiary). No condition exists that would prevent the Company or any Company Subsidiary from amending or terminating any Plan providing health or medical benefits in respect of any active or retired employee of the Company or any Company Subsidiary other than limitations imposed under the terms of any applicable Collective Bargaining Agreement. (m) Except as set forth in Section 4.11(m) of the Company Disclosure Schedule, which Schedule shall specifically indicate any amount that will not so be deductible, no amounts payable under the Plans will fail to be deductible for federal income tax purposes by virtue of sections 162(a)(1), 162(m) or 280G of the Code. (n) Except as set forth in Section 4.11(n) of the Company Disclosure Schedule, the consummation of the Transactions transactions contemplated by this Agreement will not (not, either alone or together with any other contingent upon such consummation and another event, including, any termination of employment) (i) entitle any current or former officer, employee, director employee or other independent contractor officer of the Company or a Company Subsidiary any ERISA Affiliate to severance pay, unemployment compensation or any change in control other payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing time of any payment or vesting schedulevesting, or trigger any payment or funding (through a grantor trust or otherwise), increase the amount of compensation due any such employee or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (ho) There has been no material failure of a Plan that is a group health plan (as defined in section 5000(b)(1) of the Code) to meet the requirements of section 4980B(f) of the Code with respect to a qualified beneficiary (as defined in section 4980B(g) of the Code). Neither the Company nor any Company Subsidiary has any liability contributed to a nonconforming group health plan (as defined in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B section 5000(c) of the Code) and no ERISA Affiliate of the Company or any Company Subsidiary has incurred a tax under section 5000(e) of the Code which is or could become a liability of the Company or a Company Subsidiary. (ip) There are no pending material, pending, threatened or, to the knowledge of the CompanyCompany or any Company Subsidiary, threatened anticipated claims with respect to a Company Benefit by or on behalf of any Plan, by any employee or beneficiary covered under any such Plan, or otherwise involving any such Plan (other than routine and reasonable claims for benefits made benefits). (q) Except as set forth in the ordinary course Section 4.11(q) of the plan’s operations) Company Disclosure Schedule, all contributions required to be made by the Company or any Company Subsidiary with respect to the all Foreign Plans have been timely made. Each Foreign Plan has been maintained in substantial compliance with its terms and conditions of employment or termination of employment with the requirements of any current or former officerand all applicable laws and has been maintained, employee or independent contractor where required, in good standing with the applicable governmental authority. The fair market value of the Company assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or a Company Subsidiarythe book reserve established for any plan, which claims could reasonably be expected together with any accrued contributions, is sufficient to result in any material liability to procure or provide for the Company or a Company Subsidiaryaccrued benefit obligations, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge as of the CompanyClosing, has been proposed with respect to any Company Benefit all current and former participants in such Foreign Plan. (j) . Neither the Company nor any Company Subsidiary is party has incurred any obligation in connection with the termination of or withdrawal from any Foreign Plan. For purposes hereof, the term "FOREIGN PLAN" shall mean any plan, program, policy, arrangement or agreement maintained or contributed to an agreement or arrangement by, or entered into with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party with respect to any agreement, contract, arrangement employees (or plan that has resulted or would result, whether as a result of former employees) employed outside the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m)United States.

Employee Benefit Plans; ERISA. (a) Section 3.12(a3.11(a) of the Company Seller’s Disclosure Schedule lists (i) contains a true and complete list of each material Employee Benefit Plan. For purposes of this Agreement, “Employee Benefit Plan” means any deferred compensation plan and any incentive compensation, equity compensation plan, programbonus, arrangementseverance, practice and policyretirement, whether formal “welfare” plan, fund or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary or to receive any compensation program (whether in the form of cash or stock or otherwise) or benefits of any kind or description whatsoever in any material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan within the meaning set forth in Section 3(3of section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISAthereto); “pension” plan, under which the Company fund or a Company Subsidiary has any liability, and program (iii) the Company Equity Plans (collectively, the “Company Benefit Plans”). (b) The Company has made available to Parent (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(fsection 3(2) of the Code ERISA, whether or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulationssubject thereto), including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure ScheduleForeign Pension Plans; any employment, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefitchange-in-control, transaction bonus, retention, termination or severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger agreement; and any other material obligation under a Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability employee benefit plan, fund, program, agreement or arrangement, in respect of post-retirement healtheach case, medical that is sponsored, maintained or life insurance benefits for any current contributed to or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B be contributed to by DuPont or any of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) its Subsidiaries or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic trade or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would resultbusiness, whether as a result of the Merger or the Transactionsnot incorporated, separately or in the aggregate (either alone or that together with DuPont or any other event, including, any termination of employment) in the payment of (i) any its Subsidiaries would be deemed a “excess parachute paymentsingle employer” within the meaning of Code Section 280G section 4001(b) of ERISA (an “ERISA Affiliate”), or to which DuPont, its Subsidiaries or an ERISA Affiliate is party, whether written or oral, in each case for the benefit of any Business Employee. For purposes of this Agreement, “Transferred Business Plan” means (i) any Employee Benefit Plan that as of the Closing is maintained or sponsored solely by any Transferred DPC Company or any of their respective Subsidiaries and (ii) any amount that Employee Benefit Plan the Liabilities for which will not be fully deductible automatically transfer to any Transferred DPC Company or any of their respective Subsidiaries by operation of applicable Law in connection the transactions contemplated by this Agreement (but only to the extent of such automatic transfer). Section 3.11(a) of the Seller’s Disclosure Schedule separately identifies as a result such all material Transferred Business Plans and all Foreign Pension Plans as of Code Section 162(m)the date hereof.

Employee Benefit Plans; ERISA. (a) Section 3.12(a3.11(a) of the Company Disclosure Schedule lists (i) Letter contains a true and complete list of each employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, SAR or stock-based incentive, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, practice and policyeach other employee benefit plan, whether formal program, agreement or informalarrangement, funded sponsored, maintained or unfunded, written contributed to or oral, under which any current or former officer, employee, individual independent contractor or director of required to be contributed to by the Company or a Company Subsidiary has by any right to employmenttrade or business, to purchase whether or receive any stock or other securities of not incorporated (an "ERISA Affiliate"), that together with the Company or would be deemed a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan "single employer" within the meaning set forth in Section 3(3of section 4001(b)(1) of the Employee Retirement Income Security Act of 1974, as amended amended, and the rules and regulations promulgated thereunder (“"ERISA”)") within the last six years, for the benefit of any current or former employee or director of the Company, whether formal or informal and whether legally binding or not subject to ERISA, under which the Company or a Company Subsidiary has any liability, and (iii) the Company Equity Plans (collectively, the “"Plans"). Section 3.11(a) of the Company Benefit Disclosure Letter identifies each of the Plans that is an "employee welfare benefit plan," or "employee pension benefit plan" as such terms are defined in sections 3(1) and 3(2) of ERISA (such plans being hereinafter referred to collectively as the "ERISA Plans”"). Neither the Company nor any ERISA Affiliate has any formal plan or commitment, whether legally binding or not, to create any additional Plan or modify or change any existing Plan that would affect any current or former employee or director of the Company, except as contemplated by this Agreement. Section 3.11(a) of the Company Disclosure Letter contains a true and complete list of all Company Stock Options issued and outstanding as of the date hereof. (b) The With respect to each of the Plans, the Company has made available heretofore delivered to Parent Xxxxxx true and complete copies of each of the following documents: (i) a current, complete and accurate copy copies of each Company Benefit Plan which is set forth in writing the Plans (and any related trust, insurance contract including all amendments thereto) or other funding arrangement) and a written summary description of each Company Benefit any Plan which that is not set forth otherwise in writing, and ; (ii) a copy of the annual report, if required under ERISA, with respect to each ERISA Plan for the last three years; (3iii) a copy of the actuarial report, if required under ERISA, with respect to each ERISA Plan for the last three years; (iv) a copy of the most recent Annual Reports Summary Plan Description (Form 5500"SPD"), together with all Summaries of Material Modification issued with respect to such SPD, if required under ERISA, with respect to each ERISA Plan; (v) if the Plan is funded through a trust or any other funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof; (vi) all related exhibits contracts relating to the Plans with respect to which the Company or any ERISA Affiliate may have any liability, including, without limitation, insurance contracts, investment management agreements, subscription and reports for participation agreements and record keeping agreements; and (vii) the most recent determination letter received from the Service with respect to each Company Benefit Plan which that is subject intended to ERISAbe qualified under section 401(a) of the Code. (c) No Neither the Company Benefit Plan nor any current or former ERISA Affiliate is currently or has ever been the sponsor of or required to make contributions to any "employee benefit plan" (as defined in Section 3(3) of ERISA) subject to Title IV of ERISA or (including without limitation any "multiemployer plan" (as defined in Section 412 3(37) of the Code, ERISA and no Company Benefit Plan is a multiemployer multiple employer plan within the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither )), and neither the Company nor any Company Subsidiary ERISA Affiliate has at any time incurred any liability, directly or indirectly (including, without limitation, any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the contingent liability), with respect to any such employee benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within Neither the meaning Company, any ERISA Affiliate, any of Section 406 the ERISA Plans, any trust created thereunder nor any trustee or Section 407 administrator thereof has engaged in a transaction or has taken or failed to take any action in connection with which the Company, any ERISA Affiliate, any of the ERISA Plans, any such trust, any trustee or administrator thereof, or any party dealing with the ERISA Plans or any such trust could be subject to either a civil penalty assessed pursuant to section 409 or 502(i) of ERISA or Section 4975 a tax imposed pursuant to section 4975, 4976 or 4980B of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISACode. (e) Each Company Benefit Plan which is intended to Full payment has been made, or will be qualified under Section 401(amade in accordance with section 404(a)(6) of the Code has either received a favorable determination letter from Code, of all amounts which the Internal Revenue Service, has pending an application for such a determination letter from Company or any ERISA Affiliate is required to pay under the Internal Revenue Service or is entitled to rely on a prototype plan opinion letterterms of each of the ERISA Plans, and all such amounts properly accrued through the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter Closing with respect to each such the current plan year thereof will be paid by the Company Benefit Plan, as applicableon or prior to the Closing or will be properly recorded on the Company's balance sheet. (f) Each Company Benefit Plan of the Plans has been established, maintained operated and administered in all material compliance respects in accordance with its terms and with the requirements prescribed by any and all statutesapplicable laws, ordersincluding, rules and regulations, including but not limited to to, ERISA and the Code. (g) Except as set forth on Section 3.12(gEach of the ERISA Plans that is intended to be "qualified" within the meaning of section 401(a) of the Code is so qualified. The Company Disclosure Schedule, has timely applied for and received a currently effective determination letter from the consummation of the Transactions will not (either alone or together Service with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary respect to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Planeach such plan. (h) Neither Each of the ERISA Plans that is intended to satisfy the requirements of section 501(c)(9) of the Code has so satisfied such requirements. (i) No amounts payable under any of the Plans or any other agreement or arrangement with respect to which the Company nor any Company Subsidiary has or may have any liability in respect could give rise to the payment of post-retirement health, medical any amount that would fail to be deductible for federal income tax purposes by virtue of Section 162(m) or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B 280G of the Code. (ij) There are no pending or, to the knowledge No "leased employee" (as defined in section 414(n) of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims Code) performs services for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the CodeERISA Affiliate. (k) Neither the Company nor any Company Subsidiary is a party No Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to any agreement, contract, arrangement current or plan that has resulted former employees after retirement or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of service other than (i) any “excess parachute payment” within the meaning of Code Section 280G or coverage mandated by applicable law, (ii) death benefits or retirement benefits under any amount "employee pension plan," as that term is defined in Section 3(2) of ERISA, (iii) deferred compensation benefits accrued as liabilities on the books of the Company or the ERISA Affiliates, or (iv) benefits, the full cost of which is borne by the current or former employee (or his beneficiary). (l) With respect to each Plan that is funded wholly or partially through an insurance policy, there will be no liability of the Company or any ERISA Affiliate, as of the Closing Date, under any such insurance policy or ancillary agreement with respect to such insurance policy in the nature of a retroactive rate adjustment, loss sharing arrangement or other actual or contingent liability arising wholly or partially out of events occurring prior to the Closing Date. (m) Except as provided by this Agreement, the consummation of the transactions contemplated hereunder will not be fully deductible result in the payment, vesting, acceleration or enhancement of any benefit under any Plan. (n) Except as set forth in Section 3.11(n) of the Company Disclosure Letter, the Company has no severance and termination policy and the Company's employees are not entitled to severance pay under any current Company arrangement. (o) There are rights to purchase an aggregate of 8,675 shares of Company Common Stock, outstanding, on the date hereof, under the ESPP assuming (i) a result purchase price of Code Section 162(m)$4.0375 per share of Company Common Stock and (ii) no changes in the amount of employees' withholding.

Employee Benefit Plans; ERISA. (a) Section 3.12(a4.8(a) of the Company Disclosure Schedule lists (i) sets forth a list of each material deferred compensation, bonus or other incentive compensation, stock purchase, stock option and other equity compensation plan, policy, program, agreement or arrangement; each material severance or termination pay, practice medical, surgical, hospitalization, life insurance and policyother “welfare” plan, whether formal fund or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary or to receive any compensation program (whether in the form of cash or stock or otherwise) or benefits of any kind or description whatsoever in any material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan within the meaning set forth in Section 3(3of section 3(1) of the Employee Retirement Income Security Act of 1974, as amended 1974 (“ERISA”)); each material profit-sharing, stock bonus or other “pension” plan, fund or program (within the meaning of section 3(2) of ERISA) other than any plan that is a “multiemployer plan,” as defined in Section 3(37) of ERISA (“Multiemployer Plan”); each material employment, retention, change in control, termination or severance agreement; and each other material employee benefit plan, fund, program, policy, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by the Company or by any trade or business, whether or not subject incorporated, that together with the Company would be deemed a “single employer” within the meaning of section 4001(b) of ERISA (any such trade or business, an “ERISA Affiliate”), or to ERISA, under which the Company or a an ERISA Affiliate is party, whether written or oral, for the benefit of any employee of the Company Subsidiary has or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries could incur any direct or indirect liability, whether contingent or otherwise (each, disregarding any materiality qualifier, a “Benefit Plan” and (iii) the Company Equity Plans (collectively, the “Company Benefit Plans”). (b) . “Foreign Benefit Plan” means any Benefit Plan that is subject to the laws of any jurisdiction outside the United States. The Company has made available to Parent a true and complete copy of (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth and all amendments thereto (or in writing (and the case of any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which that is not set forth in writing, and a written description thereof), (ii) a copy of the three (3) most recent Annual Reports trust instruments or insurance contracts, (iii) the most recent Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code 5500 filed with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letterany similar reports filed with Governmental Entities in non- U.S. jurisdictions having authority over any Foreign Benefit Plan and all schedules thereto, (iv) the most recent audited financial statements, (v) the most recent actuarial valuations, and (vi) the Company is not aware of any reason likely to result in the revocation of any such most recent determination or opinion letter or in issued by the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation approval under a Company Benefit Plannon-U.S. Law. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Section 3.12(a) of the Company Disclosure Schedule lists (i) each planThe Disclosure Letter lists all of the employee benefit, programhealth, arrangementwelfare, practice supplemental employment benefit, bonus, pension, supplementary executive retirement, profit sharing, deferred compensation, stock compensation, stock option or purchase, retirement, hospitalization insurance, medical, dental, legal, disability and policy, whether formal similar plans or informal, funded arrangements or unfunded, written practices applicable to the Employees or oral, under which any current or to former officer, employee, individual independent contractor or director employees of the Company or a Company Subsidiary has any right to employment, to purchase of its subsidiaries which are currently maintained or receive any stock or other securities of participated in by the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liabilityits subsidiaries, (ii) each including employee benefit plan plans within the meaning set forth in Section 3(3) of the United States Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), whether or not subject to ERISA, under which the Company or a Company Subsidiary has any liability, and (iii) the Company Equity Plans (collectively, the “Company Benefit Plans”). (b) The Company has made available to Parent (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract or other funding arrangement) and a written summary similar arrangements for the provision of each Company Benefit Plan which is not set forth in writing, and benefits (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan excluding any "Multi-employer Plan" within the meaning of Section 414(f3(37) of the Code ERISA or a plan described in "Multiple Employer Plan" with the meaning of Section 413(c) of the United States Income Tax Code (the "Code")) (the "Company Plans"), and each loan to an individual non-officer Employee in excess of $10,000, and each loan to an officer or director of the Company. (ii) The Company and its subsidiaries do not maintain or contribute to or have any obligation or liability to or with respect to any Company Plans. The Disclosure Letter lists all Multi-employer Plans to which the Company or any of its subsidiaries makes contributions or has any obligation or liability to make contributions. Neither the Company nor any Company Subsidiary of its subsidiaries maintains or has any material liability with respect to any Multiple Employer Plan. Neither the Company nor any of its subsidiaries has any obligations to create or contribute to any additional such plan, program, arrangement or practice or to amend any such plan, program, arrangement or practice so as to increase benefits or contributions thereunder, except as required under Title IV the terms of ERISA. No the Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension planPlans, or to comply with applicable law. (diii) There The Company hereby represents that (i) there have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxesTaxes or liabilities, liabilities or indemnification obligations(ii) except for premiums due, and there has been is no other event outstanding liability under Title IV of ERISA with respect to any Company Benefit Plan that could result in any material liability for of the Company Plans, (iii) neither the Pension Benefit Guaranty Corporation nor any plan administrator has instituted proceedings to terminate any of the Company Plans subject to Title IV of ERISA other than in a "standard termination" described in Section 4041(b) of ERISA, (iv) none of the Company Plans has incurred any "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code), whether or any not waived, as of the last day of the most recent fiscal year of each of the Company Subsidiary related Plans ended prior to any excise Taxes the date of this Agreement, (v) the current value of all projected benefit obligations under each of the Code or Company Plans which is subject to any Title IV of ERISA did not, as of its latest valuation date, exceed the then current value of the assets of such plan allocable to such benefit liabilities under ERISA. by more than the amount, if any, disclosed in the Reports as of July 31, 1998, based upon reasonable actuarial assumptions currently utilized for such Company Plan, (evi) Each each of the Company Benefit Plan Plans has been operated and administered in accordance with applicable laws during the period of time covered by the applicable statute of limitations, (vii) each of the Company Plans which is intended to be qualified under "qualified" within the meaning of Section 401(a) of the Code has either received a favorable determination letter from been determined by the Internal Revenue Service, has pending an application for such a determination letter from the United States Internal Revenue Service to be so qualified and such determination has not been modified, revoked or is entitled limited by failure to rely on satisfy any condition thereof or by a prototype plan opinion lettersubsequent amendment thereto or a failure to amend, and except that it may be necessary to make additional amendments retroactively to maintain the "qualified" status of such Company is not aware of any reason likely to result in Plans, the revocation of period for making any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company necessary retroactive amendments has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter not expired, (viii) with respect to each such Company Benefit PlanMulti-employer Plans, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither neither the Company nor any Company Subsidiary of its subsidiaries has any liability made or suffered a "complete withdrawal" or a "partial withdrawal", as such terms are respectively defined in respect Sections 4203, 4204 and 4205 of post-retirement healthERISA and no event has occurred or is expected to occur which presents a risk of a complete or partial withdrawal under said Sections 4203, medical or life insurance benefits for any current or former officer4204 and 4205 of ERISA, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (iix) There there are no pending or, to the knowledge of the CompanyCompany and its subsidiaries, threatened or anticipated claims involving any of the Company Plans other than claims for benefits in the ordinary course, (x) the Company and its subsidiaries have no current liability under Title IV or ERISA, and the Company and its subsidiaries do not reasonably anticipate that any such liability will be asserted against the Company or any of its subsidiaries, and (xi) no act, omission or transaction (individually or in the aggregate) has occurred with respect to a any Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) that has resulted or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material direct or indirect liability to the Company or any of its subsidiaries under Sections 409 or 502(c)(i) or (l) of ERISA or Chapter 43 of Subtitle (A) of the Code. None of the Company Controlled Group Plans has an "accumulated funding deficiency" (as defined in Section 302 of ERISA and Section 412 of the Code) or is required to provide security to a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, Plan pursuant to the knowledge Section 401(a)(29) of the CompanyCode. Each Company Plan can be unilaterally terminated by the Company or a subsidiary of the Company at any time without liability, has been proposed with respect to any Company Benefit Planother than for amounts previously reflected in the financial statements (or notes thereto) included in the Reports. (jiv) Neither All of the Company nor Plans are registered where required by, and are in good standing under, all applicable Laws or other legislative, administrative or judicial promulgations applicable to the Company Plans and there are no actions, claims, proceedings or governmental audits pending (other than routine claims for benefits) relating to the Company. (v) All of the Company Plans have been administered and funded in compliance with their terms and all applicable Laws or other legislative, administrative or judicial promulgations applicable to the Company Plans, and there are no unfunded liabilities in respect of the Company Plans and all required contributions thereunder have been made in accordance with all applicable Laws or other legislative, administrative or judicial promulgations applicable to the Company Plans and the terms of such Company Plans. (vi) No amendments to any Employee Plan have been promised and no amendments to any Employee Plan will be made or promised prior to the completion of the Offer which affect or pertain to the Employees. (vii) True and complete copies of all the Company Subsidiary is party Plans as amended as of the date hereof and, if available, current plan summaries and employee booklets in respect thereof as are applicable to an agreement or arrangement the Employees and all related documents or, where oral, written summaries of the terms thereof, are described in the Disclosure Letter; for the purpose of the foregoing, "related documents" means all current plan documentation and amendments relating thereto, summary plan descriptions and summaries of any modifications, all related trust agreements, funding agreements and similar agreements, the most recent annual reports filed with any Person which requires Governmental Entity, and the three most recent actuarial reports, if any, related thereto. (viii) There are no agreements or undertakings by the Company or Company Subsidiary any of its subsidiaries to pay a tax grossprovide post-up under Sections 409Aretirement profit sharing, 280G medical, health, life insurance or 4999 other benefits to Employees or any former employee of the CodeCompany or any of its subsidiaries. (kix) Neither the Company nor any Company Subsidiary The assets of each Employee Plan which is a party registered pension plan are at least equal to any agreementthe liabilities, contractcontingent or otherwise of such plan on a plan termination basis and each such plan is fully funded on a going concern and solvency basis in accordance with its terms, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m)applicable actuarial assumptions and applicable laws.

Employee Benefit Plans; ERISA. (a) Section 3.12(aSECTION 4.13(a) of the Company Disclosure Schedule lists (i) includes a complete list of each employee benefit plan, program, arrangement, practice and policy, whether formal program or informal, funded or unfunded, policy (written or oral, under which ) providing benefits to any current or former officer, employee, individual independent contractor consultant, officer or director of the Company or a Company Subsidiary has any right to employmentof its Subsidiaries or any beneficiary or dependent thereof that is sponsored, to purchase maintained, or receive any stock or other securities of administered by the Company or a Company Subsidiary any of its ERISA Affiliates 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 material amount or under which the Company or a any of its ERISA Affiliates contribute or is obligated to contribute (other than those programs or policies that do not provide material benefits), or with respect to which the Company Subsidiary or any of its ERISA Affiliates has any material liability, 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 (iiwhether or not such plan is subject to ERISA, and including any "multiemployer plan" within the meaning of Section 4001(a)(3) each of ERISA (a "MULTIEMPLOYER PLAN")), any employee benefit plan within the meaning set forth in of Section 3(3) of Employee Retirement Income Security Act ERISA, and any material compensation, bonus, profit sharing incentive, deferred compensation, vacation, insurance (including any self-insured arrangements), health or medical benefits, employee assistance, disability or sick leave benefits, workers' compensation, supplemental unemployment benefits, post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits), stock purchase, stock option, stock based, severance, employment, change of 1974control or fringe benefit agreement, as amended (“ERISA”)plan, program or policy in each case, whether or not subject to ERISA, under which the Company or a Company Subsidiary has any liability, and (iii) the Company Equity Plans written (collectively, the “Company Benefit Plans”"COMPANY EMPLOYEE BENEFIT PLANS"). For purposes of this Agreement, "ERISA Affiliate" of any entity means any other entity which, together with such entity, would be treated as a single employer under Section 414 of the Code. (b) The With respect to each Company Employee Benefit Plan, the Company has delivered or made available to Parent a true, correct and complete copy of: (i) a current, complete all plan documents and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, trust or funding agreements or insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, and policies; (ii) a copy of the three (3) most recent Annual Reports Report (Form 55005500 Series) and all related exhibits 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 reports for each (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 Employee Benefit Plan which is subject to ERISAthat have been adopted or approved. (c) No The IRS has issued a favorable determination letter with respect to each Company Employee Benefit Plan that is subject intended to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is be a multiemployer plan "qualified plan" within the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code and its related trust that has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letternot been revoked, and the Company is not aware of any reason likely circumstances or events that have occurred that would reasonably be expected to result in the a revocation of such letter. (d) The Company and its ERISA Affiliates have materially complied, and are now in material compliance, with all provisions of ERISA, the Code and all laws, rules and regulations applicable to each Company Employee Benefit Plan and each Company Employee Benefit Plan has been administered in all material respects in accordance with its terms. None of the Company and its ERISA Affiliates nor any such letter 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 Company Employee Benefit Plans or their related trusts, the Company, any of its ERISA Affiliates or any person that the Company or any of its ERISA Affiliates has an obligation to indemnify, to any tax or penalty imposed under Section 4975 of the Code or Section 502 of ERISA. There are no pending or, to the Company's Knowledge, threatened claims (other than claims for benefits in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The ordinary course), lawsuits, audits, actions or arbitrations which have been asserted or instituted against the Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter Employee Benefit Plans, any fiduciaries thereof with respect to each such their duties to the Company Employee Benefit Plans or the assets of any of the trusts under any of the Company Employee Benefit Plans which could reasonably be expected to result in any liability of the Company or any of its ERISA Affiliates to the Pension Benefit Guaranty Corporation, the Department of Treasury, the Department of Labor or any Company Employee Benefit Plan. (e) Neither the execution and delivery of this Agreement or the CVR Agreement nor the consummation of the transactions contemplated hereby or thereby will entitle any employee to severance pay or result in, as applicablecause the accelerated vesting, funding or delivery of, or increase or enhance any benefit or the amount or value of, any material payment or benefit to any current or former 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 related trust. (f) Each No Company Employee Benefit Plan has been establishedis subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, and none of the Company and its ERISA Affiliates, has, at any time during the last six years sponsored, maintained or contributed to or been obligated to contribute to any plan subject to Title IV of ERISA. No employees of the Company or any of its Subsidiaries located outside of the United States participate in or are eligible to participate in any Company Employee Benefit Plans providing pension or retirement benefits, and administered neither the Company nor any of its Subsidiaries has any liability with respect to or arising under any such plans, whether or not currently in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Codeexistence or effective. (g) Except as set forth on Section 3.12(g) No Company Employee Benefit Plan is a Multiemployer Plan, none of the Company Disclosure Scheduleand its ERISA Affiliates has, at any time during the consummation of the Transactions will not (either alone last six years, contributed to or together with been obligated to contribute to any other eventMultiemployer Plan, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor and none of the Company or and its ERISA Affiliates has incurred any withdrawal liability to a Company Subsidiary to any change Multiemployer Plan that has not been satisfied in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Planfull. (h) Neither the Company nor any Company Subsidiary of its Subsidiaries has any obligations for or any current or projected liability in respect of post-employment or post-retirement health, medical or life insurance benefits under any Company Employee Benefit Plan or otherwise, except for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax obligations under Section 601 et. seq. of ERISA and Section 4980B of the CodeCode ("COBRA"). (i) There are no pending orSince December 31, to the knowledge of the Company2002, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or business consistent with past practice, with respect to any director, executive officer (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the terms and conditions of employment Exchange Act) or termination of employment of any current key employee (meaning an employee with the title Executive Vice President or former officer, employee or independent contractor above) of the Company or a Company Subsidiaryany of its Subsidiaries, which claims could reasonably be expected there has not been any (i) grant of any severance or termination pay to result (or amendment to any existing arrangement with), (ii) increase in benefits payable under any material liability to the Company existing severance or a Company Subsidiarytermination pay policies or employment agreements, and no audit by (iii) any domestic or foreign governmental entering into any employment, deferred compensation or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect similar agreement (or any amendment to any Company Benefit Plansuch existing agreement), (iv) establishment, adoption or amendment (except as required by applicable law) of any collective bargaining, bonus, profit-sharing, thrift, pension, retirement, deferred compensation, compensation, stock option, restricted stock or other benefit plan or arrangement, or (v) increase in compensation, bonus or other benefits payable. (j) Neither the Company nor any Company Subsidiary There is party to an agreement no contract, plan or arrangement with (written or otherwise) covering any Person which requires employee or former employee of the Company or Company Subsidiary any of its Subsidiaries that, individually or collectively, could give rise to pay a tax gross-up under Sections 409A, the payment of any amount that would not be deductible pursuant to the terms of SECTION 280G or 4999 162(m) of the Code. (k) Neither the Company nor any of its ERISA Affiliates has any commitment or obligation to establish or adopt any new or additional employee benefit plans or to increase the benefits under any existing Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m)Employee Benefit Plan.

Employee Benefit Plans; ERISA. (a) Section 3.12(a3.11(a) of the Company Seller's Disclosure Schedule lists (i) contains a true and complete list of each material Employee Benefit Plan. For purposes of this Agreement, "Employee Benefit Plan" means any deferred compensation plan and any incentive compensation, equity compensation plan, programbonus, arrangementseverance, practice and policyretirement, whether formal "welfare" plan, fund or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary or to receive any compensation program (whether in the form of cash or stock or otherwise) or benefits of any kind or description whatsoever in any material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan within the meaning set forth in Section 3(3of section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"), whether or not subject to thereto); "pension" plan, fund or program (within the meaning of section 3(2) of ERISA, under whether or not subject thereto), including Foreign Pension Plans; any employment, change-in-control, transaction bonus, retention, termination or severance agreement; and any other employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by DuPont or any of its Subsidiaries or by any trade or business, whether or not incorporated, that together with DuPont or any of its Subsidiaries would be deemed a "single employer" within the meaning of section 4001(b) of ERISA (an "ERISA Affiliate"), or to which DuPont, its Subsidiaries or an ERISA Affiliate is party, whether written or oral, in each case for the Company or a Company Subsidiary has benefit of any liabilityBusiness Employee. For purposes of this Agreement, and (iii) the Company Equity Plans (collectively, the “Company Benefit Plans”). (b) The Company has made available to Parent "Transferred Business Plan" means (i) a current, complete and accurate copy of each Company any Employee Benefit Plan which that as of the Closing is set forth in writing (and maintained or sponsored solely by any related trust, insurance contract Transferred DPC Company or other funding arrangement) and a written summary any of each Company Benefit Plan which is not set forth in writing, their respective Subsidiaries and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company any Employee Benefit Plan the Liabilities for which is subject will automatically transfer to ERISA. any Transferred DPC Company or any of their respective Subsidiaries by operation of applicable Law in connection the transactions contemplated by this Agreement (c) No Company Benefit Plan is subject but only to Title IV the extent of ERISA or such automatic transfer). Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f3.11(a) of the Code or a plan described in Section 413(c) Seller's Disclosure Schedule separately identifies as such all material Transferred Business Plans and all Foreign Pension Plans as of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plandate hereof. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiary, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither the Company nor any Company Subsidiary is party to an agreement or arrangement with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m).

Employee Benefit Plans; ERISA. (a) Section 3.12(aNeither the execution of this Agreement nor any of the transactions contemplated by this Agreement will, either alone or in combination with any other event (i) entitle any current or former director, officer, employee, independent contractor, or consultant of the Company Disclosure Schedule lists to any severance pay, increase in severance pay, or other payment, (iii) accelerate the time of payment, funding, or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual, (iii) limit or restrict the right of the Company to amend or terminate any plan, program, policy, agreement, collective bargaining agreement, or other arrangement providing for compensation, severance, deferred compensation, performance awards, stock or stock-based awards, health, dental, retirement, life insurance, death, accidental death & dismemberment, disability, fringe, or wellness benefits, or other employee benefits or remuneration of any kind, including each employment, termination, severance, retention, change in control, or consulting or independent contractor plan, program, arrangement, practice and policyor agreement, in each case whether formal written or informalunwritten or otherwise, funded or unfunded, written insured or oralself-insured, under which any current or former officer, employee, individual independent contractor or director of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) including each “employee benefit plan plan,” within the meaning set forth in of Section 3(3) of Employee Retirement Income Security Act of 1974, as amended (“ERISA”), whether or not subject to ERISA, under which is or has been sponsored, maintained, contributed to, or required to be contributed to, by the Company for the benefit of any current or former employee, independent contractor, consultant, or director of the Company (each, a “Company Employee”), or with respect to which the Company or a any Company Subsidiary ERISA Affiliate has or may have any liability, and (iii) the Company Equity Plans Liability (collectively, the “Company Benefit Employee Plans”). , (biv) The increase the amount payable under any Company has made available to Parent Employee Plan, (iv) a current, complete and accurate copy of each Company Benefit Plan which is set forth result in writing (and any related trust, insurance contract or other funding arrangement) and a written summary of each Company Benefit Plan which is not set forth in writing, and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 of the Code, and no Company Benefit Plan is a multiemployer plan “excess parachute payments” within the meaning of Section 414(f) of the Code or a plan described in Section 413(c280G(b) of the Code. Neither the Company nor , or (vi) require a “gross-up” or other payment to any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions “disqualified individual” within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligations, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for the Company or any Company Subsidiary related to any excise Taxes under the Code or to any liabilities under ERISA. (e280G(c) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Service, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) of the Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Benefit Plan. (h) Neither the Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (ib) There are no pending orNo Company Employee Plan provides post-termination or retiree health benefits to any person for any reason, to the knowledge of the Company, threatened claims with respect to a Company Benefit Plan (except as may be required by COBRA or other than routine and reasonable claims for benefits made in the ordinary course of the plan’s operations) or with respect to the terms and conditions of employment or termination of employment of any current or former officer, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material liability to the Company or a Company Subsidiaryapplicable Law, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect to any Company Benefit Plan. (j) Neither neither the Company nor any Company Subsidiary is party ERISA Affiliate has any Liability to an agreement provide post-termination or arrangement retiree health benefits to any person or ever represented, promised, or contracted to any Company Employee (either individually or to Company Employees as a group) or any other person that such Company Employee(s) or other person would be provided with any Person which requires post-termination or retiree health benefits, except to the Company extent required by COBRA or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Codeother applicable Law. (kc) Neither the Each Company nor any Company Subsidiary Employee Plan that is a party subject to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result Section 409A of the Merger or the Transactions, separately or Code has been operated in the aggregate compliance with such section and all applicable regulatory guidance (either alone or together with any other event, including, any without limitation, proposed regulations, notices, rulings, and final regulations). (d) The Company (i) is in compliance with all applicable Laws and agreements regarding hiring, employment, termination of employment) in the payment , plant closing and mass layoff, employment discrimination, harassment, retaliation, and reasonable accommodation, leaves of (i) any “excess parachute payment” within the meaning absence, terms and conditions of Code Section 280G or employment, wages and hours of work, employee classification, employee health and safety, use of genetic information, leasing and supply of temporary and contingent staff, engagement of independent contractors, including proper classification of same, payroll taxes, and immigration with respect to Company Employees and contingent workers, and (ii) is in compliance with all applicable Laws relating to the relations between it and any amount that will not be fully deductible as a result of Code Section 162(m)labor organization, trade union, work council, or other body representing Company Employees.

Employee Benefit Plans; ERISA. (a) Section 3.12(aSchedule 3.17(a) of the Company Disclosure Schedule Statement lists all (i) each plan, program, arrangement, practice and policy, whether formal or informal, funded or unfunded, written or oral, under which any current or former officer, employee, individual independent contractor or director “employee pension benefit plans” as defined in Section 3(2) of the Company or a Company Subsidiary has any right to employment, to purchase or receive any stock or other securities of the Company or a Company Subsidiary 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 material amount or under which the Company or a Company Subsidiary has any material liability, (ii) each employee benefit plan within the meaning set forth in Section 3(3) of Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (“Pension Plans”), whether or not subject to ERISA, under which the Company or a Company Subsidiary has any liability, and ; (ii) “welfare benefit plans” as defined in Section 3(1) of ERISA (“Welfare Plans”); (iii) stock bonus, stock option, restricted stock, phantom stock, stock appreciation right, stock purchase or other equity compensation plan; bonus, profit-sharing plan or other incentive plan; deferred compensation arrangement; severance plan; holiday or vacation plan; retirement or supplemental retirement plan; sabbatical program; medical, heath-related, life or other insurance plan; relocation arrangement; cafeteria (Code Section 125) or dependent care (Code Section 129) benefit; or any other fringe benefit program; and (iv) other employee benefit or compensation plan, agreement (including individual agreement), program, policy or arrangement covering employees, directors and consultants of the Company, any Company Subsidiary any of its or their Company ERISA Affiliates (as hereinafter defined) that either is maintained or contributed to by Company or any of the Company Equity Plans Subsidiaries or any of their Company ERISA Affiliates or to which Company or any of the Company Subsidiaries or any of their Company ERISA Affiliates is obligated to make payments or otherwise may have any liability (collectively, the “Company Employee Benefit Plans”). (b) The Company has made available with respect to Parent (i) a current, complete and accurate copy of each Company Benefit Plan which is set forth in writing (and any related trust, insurance contract employees or other funding arrangementservice-providers or former employees or other service-providers of Company, the Company Subsidiaries, or any of their ERISA Affiliates. For purposes of this Agreement, “Company ERISA Affiliate” shall mean any person (as defined in Section 3(9) and of ERISA) that is or has been a written summary member of each Company Benefit Plan which is not set forth any group of persons described in writingSection 414(b), and (ii) a copy of the three (3) most recent Annual Reports (Form 5500) and all related exhibits and reports for each Company Benefit Plan which is subject to ERISA. (c), (m) No Company Benefit Plan is subject to Title IV of ERISA or Section 412 (o) of the Code, and no including without limitation Company Benefit Plan is a multiemployer plan within the meaning of Section 414(f) of the Code or a plan described in Section 413(c) of the Code. Neither the Company nor any Company Subsidiary has any material liability under Title IV of ERISA. No Company Benefit Plan maintained for the benefit of employees outside the United States is a defined benefit pension plan. (d) There have been no prohibited transactions within the meaning of Section 406 or Section 407 of ERISA or Section 4975 of the Code with respect to any of the Company Benefit Plans that could result in material penalties, taxes, liabilities or indemnification obligationsSubsidiaries. (b) Company and each of the Company Subsidiaries, and there has been no other event with respect to any Company Benefit Plan that could result in any material liability for each of the Company or any Company Subsidiary related Employee Benefit Plans, are in compliance with, has performed all material obligations required under, and is not subject to any excise Taxes under liability under, the applicable provisions of ERISA, the Code or to any liabilities under ERISA. (e) Each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the Internal Revenue Serviceand other applicable laws, has pending an application for such a determination letter from the Internal Revenue Service or is entitled to rely on a prototype plan opinion letter, and the Company is not aware of any reason likely to result in the revocation of any such letter or in the Internal Revenue Service declining to issue a favorable determination letter on a pending application. The Company has provided to Parent a copy of the most recent Internal Revenue Service favorable determination or opinion letter with respect to each such Company Benefit Plan, as applicable. (f) Each Company Benefit Plan has been established, maintained and administered in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (g) Except as set forth on Section 3.12(g) terms of the each Company Disclosure Schedule, the consummation of the Transactions will not (either alone or together with any other event, including, any termination of employment) (i) entitle any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary to any change in control payment or benefit, transaction bonus, severance pay or similar benefit, (ii) accelerate the timing of any payment or vesting schedule, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits to any current or former officer, employee, director or other independent contractor of the Company or a Company Subsidiary, or (iii) trigger any other material obligation under a Company Employee Benefit Plan. (h) Neither the . Each Company nor any Company Subsidiary has any liability in respect of post-retirement health, medical or life insurance benefits for any current or former officer, employee, director or independent contractor except as required to avoid excise Tax under Section 4980B of the Code. (i) There are no pending or, to the knowledge of the Company, threatened claims with respect to a Company Employee Benefit Plan (other than routine and reasonable claims for benefits made can be amended, terminated or otherwise discontinued at or after the Effective Time in the ordinary course of the plan’s operations) or accordance with respect to the terms and conditions of employment or termination of employment of any current or former officerits terms, employee or independent contractor of the Company or a Company Subsidiary, which claims could reasonably be expected to result in any material without liability to Parent or the Company or a Company SubsidiarySurviving Corporation, and no audit by any domestic or foreign governmental or other law enforcement agency is pending or, to the knowledge of the Company, has been proposed with respect Company Employee Benefit Plan will be subject to any Company Benefit Plan. (j) Neither surrender fees or service fees upon termination other than the Company nor any Company Subsidiary is party to an agreement or arrangement normal and reasonable administrative fees associated with any Person which requires the Company or Company Subsidiary to pay a tax gross-up under Sections 409A, 280G or 4999 of the Code. (k) Neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, whether as a result of the Merger or the Transactions, separately or in the aggregate (either alone or together with any other event, including, any termination of employment) in the payment of (i) any “excess parachute payment” within the meaning of Code Section 280G or (ii) any amount that will not be fully deductible as a result of Code Section 162(m)benefit plans.