Common use of Employee Matters; Benefit Plans; ERISA Clause in Contracts

Employee Matters; Benefit Plans; ERISA. (a) Except as may be disclosed in Schedule 4.11(a), Seller has not entered into any collective bargaining agreement with any labor organization with respect to any group of employees of Seller and, to the knowledge of Seller, there is no present effort nor existing proposal to attempt to unionize any group of employees of Seller. (b) Except as may be disclosed in Schedule 4.11(b): (i) Seller is and has been in material compliance with all applicable laws relating to employment and employment practices, terms and conditions of employment and wages and hours, including, without limitation, any such laws respecting employment discrimination and occupational safety and health requirements, and Seller is not engaged in any unfair labor practices; (ii) There is no unfair labor practice complaint against Seller pending or, to the knowledge of Seller, threatened before the National Labor Relations Board; (iii) There is no labor dispute, strike, slowdown or stoppage pending or, to the knowledge of Seller, threatened against or directly relating to Seller; and (iv) Seller has not experienced any work stoppage or other material labor difficulty during the past year. (c) Except as described and attached to Schedule 4.11(c), Seller is not a party to any agreement for the employment, retention or engagement or severance of any officer, employee, agent, advisor or consultant. (d) Schedule 4.11(d) contains a correct and complete list of all Benefit Plans maintained by Seller or to which Seller or any ERISA Affiliate (as defined below) contributes. Seller has delivered or made available to Buyer, with respect to all such Benefit Plans, complete and correct copies of the following: all plan documents, handbooks, manuals, collective bargaining agreements and similar documents governing employment policies, practices and procedures; the most recent summary plan descriptions and any subsequent summaries of material modifications and all other material employee communications discussing any employee benefit; Forms series 5500 as filed with the IRS for the three most recent plan years (including all attachments thereto); the most recent report of the enrolled actuary for any plans requiring actuarial valuation; all trust agreements with respect to the Benefit Plans; plan contracts with service providers or insurers providing benefits for participants or liability insurance for fiduciaries and other parties in interest or bonding; the most recent annual audit and accounting of plan assets for all funded plans; and the most recent Internal Revenue Service (“IRS”) determination letter or opinion letter for all plans qualified under Section 401(a) of the Code. (e) Neither Seller nor any ERISA Affiliate participates in or maintains or has ever maintained or been obligated to contribute to a multi-employer plan (as defined in Section 3(37) of ERISA), and neither Seller nor any ERISA Affiliate has withdrawal liability with respect to any multi-employer plan. (f) Neither Seller nor any ERISA Affiliate maintains or has ever maintained or been obligated to contribute to an employee pension benefit plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA. (g) Seller has made full payment of all amounts it is required, under applicable law or the terms of each Benefit Plan, to have contributed thereto before the Closing Date for all periods through and including the close of the last plan year ending prior to the Closing Date, or proper accruals for such contributions have been made and are reflected on its balance sheet and books and records. Seller will pay such contributions to the Benefit Plans for the current plan year prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, has made adequate provision for reserves therefor. All such contributions are fully deductible by Seller for purposes of Seller’s federal income taxes, and Seller has no actual or potential liability for the 10 percent tax imposed by section 4972 of the Code. (h) All Taxes, penalties, interest charges and other financial obligations to federal, state and local governments and to participants or beneficiaries under the Benefit Plans with respect to any period ending on or before the Closing Date have been or will be met in full on or before the Closing Date. (i) All reports, returns, notices and similar documents with respect to the Benefit Plans required to be filed with any governmental agency or distributed to any Benefit Plan participant or beneficiary have been duly and timely filed or distributed. (j) Each Benefit Plan required to be listed on Schedule 4.11(d) that is intended to be qualified under Section 401 of the Code is (and from its establishment has been) the subject of a favorable determination letter or opinion letter issued by the IRS, and no such determination letter or opinion letter has been revoked nor, to Seller’s knowledge, has revocation been threatened, nor has any Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect which would adversely affect its qualification or materially increase its cost, and no Benefit Plan has been amended in a manner that would require security to be provided in accordance with Section 401(a)(29) of the Code. Each trust maintained under any such Benefit Plan is (and from its establishment has been) exempt from federal income tax under Section 501 of the Code. (k) Each Benefit Plan required to be listed on Schedule 4.11(d) complies, in both form and operation, with the applicable requirements of ERISA, the Code and other applicable law. There are no pending investigations by any governmental agency involving such Benefit Plans, no termination proceedings involving the Benefit Plans, and, to Seller’s knowledge, no threatened or pending claims (except for routine claims for benefits), suits or proceedings against any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan which could give rise to any liability nor, to Seller’s knowledge, are there any facts which could give rise to any liability in the event of any such investigation, claim, suit or proceeding. (l) Neither Seller nor any “party in interest” (as defined in section 3(14) of ERISA) or “disqualified person” (as defined in section 4975(e)(2) of the Code) with respect to any Benefit Plan has engaged in a “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory, administrative, or regulatory exemption is not available. No Benefit Plan has been (or will be as a result of the transactions contemplated hereby) completely or partially terminated or has been (or will be as a result of the transactions contemplated hereby) subject to a “reportable event” (as defined in section 4043 of ERISA) or to any event requiring disclosure under section 4062(e) or 4063(a) of ERISA. (m) Seller is in full compliance with the continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the health insurance obligations (sometimes referred to as “HIPAA”) imposed by section 9801 of the Code and Part 7 of Subtitle B of Title I of ERISA. (n) Other than the group health plan continuation coverage requirements required by applicable law (as described in subsection (m) above), the cost of which is fully paid by the former employee or his or her dependent, Seller does not maintain retiree life or retiree health plans providing for continuing coverage for any employee or any beneficiary of an employee after the employee’s termination of employment. (o) Except as set forth on Schedule 4.11(o), Seller is not a party to any oral or written agreement with any director, executive, officer or other key employee, the benefits of which are contingent or the terms of which are materially altered or permit termination, upon the occurrence of a transaction of the nature contemplated by this Agreement and the Related Agreements, or agreement or plan, including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement and the Related Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement and the Related Agreements.

Employee Matters; Benefit Plans; ERISA. (a) Except as may be disclosed in Schedule 4.11(a), Seller Data Road has not entered into any collective bargaining agreement with any labor organization with respect to any group of employees of Seller Data Road and, to the knowledge of SellerData Road, there is no present effort nor existing proposal to attempt to unionize any group of employees of SellerData Road. (b) Except as may be disclosed in Schedule 4.11(b): (i) Seller Data Road is and has been in material compliance with all applicable laws relating to employment and employment practices, terms and conditions of employment and wages and hours, including, without limitation, any such laws respecting employment discrimination and occupational safety and health requirements, and Seller Data Road is not engaged in any unfair labor practices; (ii) There is no unfair labor practice complaint against Seller Data Road pending or, to the knowledge of SellerData Road, threatened before the National Labor Relations Board; (iii) There is no labor dispute, strike, slowdown or stoppage pending or, to the knowledge of SellerData Road, threatened against or directly relating to SellerData Road; and (iv) Seller Data Road has not experienced any work stoppage or other material labor difficulty during the past year. (c) Except as described and attached to Schedule 4.11(c), Seller Data Road is not a party to any agreement for the employment, retention or engagement or severance of any officer, employee, agent, advisor or consultant. (d) Schedule 4.11(d) contains a correct and complete list of all Benefit Plans maintained by Seller Data Road or to which Seller Data Road or any ERISA Affiliate (as defined below) contributes. Seller Data Road has delivered or made available to Buyer, with respect to all such Benefit Plans, complete and correct copies of the following: all plan documents, handbooks, manuals, collective bargaining agreements and similar documents governing employment policies, practices and procedures; the most recent summary plan descriptions and any subsequent summaries of material modifications and all other material employee communications discussing any employee benefit; Forms series 5500 as filed with the IRS for the three most recent plan years (including all attachments thereto); the most recent report of the enrolled actuary for any plans requiring actuarial valuation; all trust agreements with respect to the Benefit Plans; plan contracts with service providers or insurers providing benefits for participants or liability insurance for fiduciaries and other parties in interest or bonding; the most recent annual audit and accounting of plan assets for all funded plans; and the most recent Internal Revenue Service (“"IRS”") determination letter or opinion letter for all plans qualified under Section 401(a) of the Code. (e) Neither Seller Data Road nor any ERISA Affiliate participates in or maintains or has ever maintained or been obligated to contribute to a multi-multi- employer plan (as defined in Section 3(37) of ERISA), and neither Seller Data Road nor any ERISA Affiliate has withdrawal liability with respect to any multi-multi- employer plan. (f) Neither Seller Data Road nor any ERISA Affiliate maintains or has ever maintained or been obligated to contribute to an employee pension benefit plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA. (g) Seller Data Road has made full payment of all amounts it is required, under applicable law or the terms of each Benefit Plan, to have contributed thereto before the Closing Date for all periods through and including the close of the last plan year ending prior to the Closing Date, or proper accruals for such contributions have been made and are reflected on its balance sheet and books and records. Seller Data Road will pay such contributions to the Benefit Plans for the current plan year prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, has made adequate provision for reserves therefor. All such contributions are fully deductible by Seller Data Road for purposes of Seller’s Data Road's federal income taxes, and Seller Data Road has no actual or potential liability for the 10 percent tax imposed by section 4972 of the Code. (h) All Taxes, penalties, interest charges and other financial obligations to federal, state and local governments and to participants or beneficiaries under the Benefit Plans with respect to any period ending on or before the Closing Date have been or will be met in full on or before the Closing Date. (i) All reports, returns, notices and similar documents with respect to the Benefit Plans required to be filed with any governmental agency or distributed to any Benefit Plan participant or beneficiary have been duly and timely filed or distributed. (j) Each Benefit Plan required to be listed on Schedule 4.11(d) that is intended to be qualified under Section 401 of the Code is (and from its establishment has been) the subject of a favorable determination letter or opinion letter issued by the IRS, and no such determination letter or opinion letter has been revoked nor, to Seller’s Data Road's knowledge, has revocation been threatened, nor has any Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect which would adversely affect its qualification or materially increase its cost, and no Benefit Plan has been amended in a manner that would require security to be provided in accordance with Section 401(a)(29) of the Code. Each trust maintained under any such Benefit Plan is (and from its establishment has been) exempt from federal income tax under Section 501 of the Code. (k) Each Benefit Plan required to be listed on Schedule 4.11(d) complies, in both form and operation, with the applicable requirements of ERISA, the Code and other applicable law. There are no pending investigations by any governmental agency involving such Benefit Plans, no termination proceedings involving the Benefit Plans, and, to Seller’s Data Road's knowledge, no threatened or pending claims (except for routine claims for benefits), suits or proceedings against any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan which could give rise to any liability nor, to Seller’s Data Road's knowledge, are there any facts which could give rise to any liability in the event of any such investigation, claim, suit or proceeding. (l) Neither Seller Data Road nor any “"party in interest” " (as defined in section 3(14) of ERISA) or “"disqualified person” " (as defined in section 4975(e)(2) of the Code) with respect to any Benefit Plan has engaged in a “"prohibited transaction” " (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory, administrative, or regulatory exemption is not available. No Benefit Plan has been (or will be as a result of the transactions contemplated hereby) completely or partially terminated or has been (or will be as a result of the transactions contemplated hereby) subject to a “"reportable event” " (as defined in section 4043 of ERISA) or to any event requiring disclosure under section 4062(e) or 4063(a) of ERISA. (m) Seller Data Road is in full compliance with the continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the health insurance obligations (sometimes referred to as “"HIPAA”") imposed by section 9801 of the Code and Part 7 of Subtitle B of Title I of ERISA. (n) Other than the group health plan continuation coverage requirements required by applicable law (as described in subsection (m) above), the cost of which is fully paid by the former employee or his or her dependent, Seller Data Road does not maintain retiree life or retiree health plans providing for continuing coverage for any employee or any beneficiary of an employee after the employee’s 's termination of employment. (o) Except as set forth on Schedule 4.11(o), Seller Data Road is not a party to any oral or written agreement with any director, executive, officer or other key employee, the benefits of which are contingent or the terms of which are materially altered or permit termination, upon the occurrence of a transaction of the nature contemplated by this Agreement and the Related Agreements, and which provides for the payment of in excess of Fifty Thousand Dollars ($50,000), or agreement or plan, including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement and the Related Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement and the Related Agreements.

Employee Matters; Benefit Plans; ERISA. (a) Except as may be disclosed in Schedule 4.11(a), Seller PDI has not entered into any collective bargaining agreement with any labor organization with respect to any group of employees of Seller PDI and, to the knowledge of SellerPDI, there is no present effort nor existing proposal to attempt to unionize any group of employees of SellerPDI. (b) Except as may be disclosed in Schedule 4.11(b): (i) Seller PDI is and has been in material compliance with all applicable laws relating to employment and employment practices, terms and conditions of employment and wages and hours, including, without limitation, any such laws respecting employment discrimination and occupational safety and health requirements, and Seller PDI is not engaged in any unfair unfit labor practices; (ii) There is no material unfair labor practice complaint against Seller PDI pending or, to the knowledge of SellerPDI, threatened before the National Labor Relations Board; (iii) There is no labor dispute, strike, slowdown or stoppage actually pending or, to the knowledge of SellerPDI, threatened against or directly relating to SellerPDI; and (iv) Seller PDI has not experienced any material work stoppage or other material labor difficulty during the past year. (c) Except as described and attached to Schedule 4.11(c), Seller PDI is not a party to any agreement for the employment, retention or engagement or severance of any officer, employee, agent, advisor or consultant. (d) Schedule 4.11(d) contains a correct and complete list of all Benefit Plans maintained by Seller PDI or to which Seller PDI or any ERISA Affiliate (as defined below) contributes. Seller PDI has delivered or made available to BuyerParent, with respect to all such Benefit Plans, complete and correct copies of the following: all plan documents, handbooks, manuals, collective bargaining agreements and similar documents governing employment policies, practices and procedures; the most recent summary plan descriptions and any subsequent summaries of material modifications and all other material employee communications discussing any employee benefit; Forms series 5500 as filed with the IRS for the three most recent plan years (including all attachments thereto); the most recent report of the enrolled actuary for any plans requiring actuarial valuation; all trust agreements with respect to the Benefit Plans; plan contracts with service providers or insurers providing benefits for participants or liability insurance for fiduciaries and other parties in interest or bonding; the most recent annual audit and accounting of plan assets for all funded plans; and the most recent Internal Revenue Service (“IRS”) determination letter or opinion letter for all plans qualified under Section 401(a) of the Code. (e) Neither Seller PDI nor any ERISA Affiliate participates in or maintains or has ever maintained or been obligated to contribute to a multi-multi- employer plan (as defined in Section 3(37) of ERISA), and neither Seller PDI nor any ERISA Affiliate has withdrawal liability with respect to any multi-employer plan. (f) Neither Seller PDI nor any ERISA Affiliate maintains or has ever maintained or been obligated to contribute to an employee pension benefit plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA. (g) Seller PDI has made full payment of all amounts it is required, under applicable law or the terms of each Benefit Plan, to have contributed thereto before the Closing Date for all periods through and including the close of the last plan year ending prior to the Closing Date, or proper accruals for such contributions have been made and are reflected on its balance sheet and books and records. Seller PDI will pay such contributions to the Benefit Plans for the current plan year prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, has made adequate provision for reserves therefor. All such contributions are fully deductible by Seller PDI for purposes of SellerPDI’s federal income taxes, and Seller PDI has no actual or potential liability for the 10 percent tax imposed by section 4972 of the Code. (h) All Taxes, penalties, interest charges and other financial obligations to federal, state and local governments and to participants or beneficiaries under the Benefit Plans with respect to any period ending on or before the Closing Date have been or will be met in full on or before the Closing Date. (i) All reports, returns, notices and similar documents with respect to the Benefit Plans required to be filed with any governmental agency or distributed to any Benefit Plan participant or beneficiary have been duly and timely filed or distributed. (j) Each Benefit Plan required to be listed on Schedule 4.11(d) that is intended to be qualified under Section 401 of the Code is (and from its establishment has been) the subject of a favorable determination letter or opinion letter issued by the IRS, and no such determination letter or opinion letter has been revoked nor, to SellerPDI’s knowledge, has revocation been threatened, nor has any Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect which would adversely affect its qualification or materially increase its cost, and no Benefit Plan has been amended in a manner that would require security to be provided in accordance with Section 401(a)(29) of the Code. Each trust maintained under any such Benefit Plan is (and from its establishment has been) exempt from federal income tax under Section 501 of the Code. (k) Each Benefit Plan required to be listed on Schedule 4.11(d) complies, in both form and operation, with the applicable requirements of ERISA, the Code and other applicable law. There are no pending investigations by any governmental agency involving such Benefit Plans, no termination proceedings involving the Benefit Plans, and, to SellerPDI’s knowledge, no threatened or pending claims (except for routine claims for benefits), suits or proceedings against any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan which could give rise to any liability nor, to SellerPDI’s knowledge, are there any facts which could give rise to any liability in the event of any such investigation, claim, suit or proceeding. (l) Neither Seller PDI nor any “party in interest” (as defined in section 3(14) of ERISA) or “disqualified person” (as defined in section 4975(e)(2) of the Code) with respect to any Benefit Plan has engaged in a “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory, administrative, or regulatory exemption is not available. No Benefit Plan has been (or will be as a result of the transactions contemplated hereby) completely or partially terminated or has been (or will be as a result of the transactions contemplated hereby) subject to a “reportable event” (as defined in section 4043 of ERISA) or to any event requiring disclosure under section 4062(e) or 4063(a) of ERISA. (m) Seller PDI is in full compliance with the continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the health insurance obligations (sometimes referred to as “HIPAA”) imposed by section 9801 of the Code and Part 7 of Subtitle B of Title I of ERISA. (n) Other than the group health plan continuation coverage requirements required by applicable law (as described in subsection (m) above), the cost of which is fully paid by the former employee or his or her dependent, Seller PDI does not maintain retiree life or retiree health plans providing for continuing coverage for any employee or any beneficiary of an employee after the employee’s termination of employment. (o) Prior to the Closing Date, PDI will not establish any new Benefit Plan for the employees of PDI, except with the written consent of Parent, nor will PDI amend or modify any existing Benefit Plan as to any benefit or in any other way, except with the written consent of Parent. (p) Except as set forth on Schedule 4.11(o4.11(p), Seller PDI is not a party to any oral or written agreement with any director, executive, officer or other key employee, the benefits of which are contingent or the terms of which are materially altered or permit termination, upon the occurrence of a transaction of the nature contemplated by this Agreement Agreement, and which provides for the Related Agreementspayment of in excess of Fifty Thousand Dollars ($50,000), or agreement or plan, including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement and the Related Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement and the Related AgreementsAgreement.

Employee Matters; Benefit Plans; ERISA. (a) Except as may be disclosed in Schedule 4.11(a), Seller Whitbread has not entered into any collective bargaining agreement with any labor organization with respect to any group of employees of Seller Whitbread and, to the knowledge of SellerWhitbread, there is no present effort nor existing proposal to attempt to unionize any group of employees of SellerWhitbread. (b) Except as may be disclosed in Schedule 4.11(b): (i) Seller Whitbread is and has been in material compliance with all applicable laws relating to employment and employment practices, terms and conditions of employment and wages and hours, including, without limitation, any such laws respecting employment discrimination and occupational safety and health requirements, and Seller Whitbread is not engaged in any unfair labor practices; (ii) There is no material unfair labor practice complaint against Seller Whitbread pending or, to the knowledge of SellerWhitbread, threatened before the National Labor Relations Board; (iii) There is no labor dispute, strike, slowdown or stoppage actually pending or, to the knowledge of SellerWhitbread, threatened against or directly relating to SellerWhitbread; and (iv) Seller Whitbread has not experienced any material work stoppage or other material labor difficulty during the past year. (c) Except Other than Whitbread’s standard offer letter, a copy of which has been furnished to the Buyer, and except as described and attached to Schedule 4.11(c), Seller Whitbread is not a party to any agreement for the employment, retention or engagement or severance of any officer, employee, agent, advisor or consultant. (d) Schedule 4.11(d) contains a correct and complete list of all Benefit Plans maintained by Seller Whitbread or to which Seller Whitbread or any ERISA Affiliate (as defined below) contributes. Seller Whitbread has delivered or made available to the Buyer, with respect to all such Benefit Plans, complete and correct copies of the following: all plan documents, handbooks, manuals, collective bargaining agreements and similar documents governing employment policies, practices and procedures; the most recent summary plan descriptions and any subsequent summaries of material modifications and all other material employee communications discussing any employee benefit; Forms series 5500 as filed with the IRS for the three most recent plan years (including all attachments thereto); the most recent report of the enrolled actuary for any plans requiring actuarial valuation; all trust agreements with respect to the Benefit Plans; plan contracts with service providers or insurers providing benefits for participants or liability insurance for fiduciaries and other parties in interest or bonding; the most recent annual audit and accounting of plan assets for all funded plans; and the most recent Internal Revenue Service (“IRS”) determination letter or opinion letter for all plans qualified under Section 401(a) of the Code. (e) Neither Seller Whitbread nor any ERISA Affiliate participates in or maintains or has ever maintained or been obligated to contribute to a multi-employer plan (as defined in Section 3(37) of ERISA), and neither Seller Whitbread nor any ERISA Affiliate has withdrawal liability with respect to any multi-employer plan. (f) Neither Seller Whitbread nor any ERISA Affiliate maintains or has ever maintained or been obligated to contribute to an employee pension benefit plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA. (g) Seller Whitbread has made full payment of all amounts it is required, under applicable law or the terms of each Benefit Plan, to have contributed thereto before the Closing Date for all periods through and including the close of the last plan year ending prior to the Closing Date, or proper accruals for such contributions have been made and are reflected on its balance sheet and books and records. Seller Whitbread will pay such contributions to the Benefit Plans for the current plan year prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, has made adequate provision for reserves therefor. All such contributions are fully deductible by Seller Whitbread for purposes of SellerWhitbread’s federal income taxes, and Seller Whitbread has no actual or potential liability for the 10 percent tax imposed by section 4972 of the Code. (h) All Taxes, penalties, interest charges and other financial obligations to federal, state and local governments and to participants or beneficiaries under the Benefit Plans with respect to any period ending on or before the Closing Date have been or will be met in full on or before the Closing Date. (i) All reports, returns, notices and similar documents with respect to the Benefit Plans required to be filed with any governmental agency or distributed to any Benefit Plan participant or beneficiary have been duly and timely filed or distributed. (j) Each Benefit Plan required to be listed on Schedule 4.11(d) that is intended to be qualified under Section 401 of the Code is (and from its establishment has been) the subject of a favorable determination letter or opinion letter issued by the IRS, and no such determination letter or opinion letter has been revoked nor, to SellerWhitbread’s knowledge, has revocation been threatened, nor has any Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect which would adversely affect its qualification or materially increase its cost, and no Benefit Plan has been amended in a manner that would require security to be provided in accordance with Section 401(a)(29) of the Code. Each trust maintained under any such Benefit Plan is (and from its establishment has been) exempt from federal income tax under Section 501 of the Code. (k) Each Benefit Plan required to be listed on Schedule 4.11(d) complies, in both form and operation, with the applicable requirements of ERISA, the Code and other applicable law. There are no termination proceedings involving the Benefit Plans and, to Whitbread’s knowledge, no pending investigations by any governmental agency involving such Benefit Plans, no termination proceedings involving the Benefit Plans, and, to Seller’s knowledge, Plans and no threatened or pending claims (except for routine claims for benefits), suits or proceedings against any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan which could give rise to any liability nor, to SellerWhitbread’s knowledge, are there any facts which could give rise to any liability in the event of any such investigation, claim, suit or proceeding. (l) Neither Seller Whitbread nor any “party in interest” (as defined in section 3(14) of ERISA) or “disqualified person” (as defined in section 4975(e)(2) of the Code) with respect to any Benefit Plan has engaged in a “prohibited transaction” (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory, administrative, or regulatory exemption is not available. No Benefit Plan has been (or will be as a result of the transactions contemplated hereby) completely or partially terminated or has been (or will be as a result of the transactions contemplated hereby) subject to a “reportable event” (as defined in section 4043 of ERISA) or to any event requiring disclosure under section 4062(e) or 4063(a) of ERISA. (m) Seller Whitbread is in full compliance with the continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the health insurance obligations (sometimes referred to as “HIPAA”) imposed by section 9801 of the Code and Part 7 of Subtitle B of Title I of ERISA, except where the failure to comply would not have a material adverse effect on Whitbread. (n) Other than the group health plan continuation coverage requirements required by applicable law (as described in subsection (m) above), the cost of which is fully paid by the former employee or his or her dependent, Seller Whitbread does not maintain retiree life or retiree health plans providing for continuing coverage for any employee or any beneficiary of an employee after the employee’s termination of employment. (o) Except as set forth on Schedule 4.11(o), Seller Whitbread is not a party to any oral or written agreement with any director, executive, officer or other key employee, the benefits of which are contingent or the terms of which are materially altered or permit termination, upon the occurrence of a transaction of the nature contemplated by this Agreement and the Related Agreements, and which provides for the payment of in excess of Fifty Thousand Dollars ($50,000), or agreement or plan, including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement and the Related Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement and the Related Agreements.

Employee Matters; Benefit Plans; ERISA. (a) Except as may be disclosed in Schedule 4.11(a4.12(a), Seller BCG has not entered into any collective bargaining agreement with any labor organization with respect to any group of employees of Seller BCG and, to the knowledge of SellerBCG, there is no present effort nor existing proposal to attempt to unionize any group of employees of SellerBCG. (b) Except as may be disclosed in Schedule 4.11(b): 4.12(b): (i) Seller BCG is and has been in material compliance with all applicable laws relating to employment and employment practices, terms and conditions of employment and wages and hours, including, without limitation, any such laws respecting employment discrimination and occupational safety and health requirements, and Seller BCG is not engaged in any unfair unfit labor practices; ; (ii) There is no material unfair labor practice complaint against Seller BCG pending or, to the knowledge of SellerBCG, threatened before the National Labor Relations Board; ; (iii) There is no labor dispute, strike, slowdown or stoppage actually pending or, to the knowledge of SellerBCG, threatened against or directly relating to SellerBCG; and and (iv) Seller BCG has not experienced any material work stoppage or other material labor difficulty during the past year. (c) Except as described and attached to Schedule 4.11(c4.12(c), Seller BCG is not a party to any agreement for the employment, retention or engagement or severance of any officer, employee, agent, advisor or consultant. (d) Schedule 4.11(d4.12(d) contains a correct and complete list of all Benefit Plans maintained by Seller BCG or to which Seller BCG or any ERISA Affiliate (as defined below) contributes. Seller BCG has delivered or made available to BuyerParent, with respect to all such Benefit Plans, complete and correct copies of the following: all plan documents, handbooks, manuals, collective bargaining agreements and similar documents governing employment policies, practices and procedures; the most recent summary plan descriptions and any subsequent summaries of material modifications and all other material employee communications discussing any employee benefit; Forms series 5500 as filed with the IRS for the three most recent plan years (including all attachments thereto); the most recent report of the enrolled actuary for any plans requiring actuarial valuation; all trust agreements with respect to the Benefit Plans; plan contracts with service providers or insurers providing benefits for participants or liability insurance for fiduciaries and other parties in interest or bonding; the most recent annual audit and accounting of plan assets for all funded plans; and the most recent Internal Revenue Service (“"IRS”") determination letter or opinion letter for all plans qualified under Section 401(a) of the Code. (e) Neither Seller BCG nor any ERISA Affiliate participates in or maintains or has ever maintained or been obligated to contribute to a multi-multi- employer plan (as defined in Section 3(37) of ERISA), and neither Seller BCG nor any ERISA Affiliate has withdrawal liability with respect to any multi-employer plan. (f) Neither Seller BCG nor any ERISA Affiliate maintains or has ever maintained or been obligated to contribute to an employee pension benefit plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA. (g) Seller BCG has made full payment of all amounts it is required, under applicable law or the terms of each Benefit Plan, to have contributed thereto before the Closing Date for all periods through and including the close of the last plan year ending prior to the Closing Date, or proper accruals for such contributions have been made and are reflected on its balance sheet and books and records. Seller BCG will pay such contributions to the Benefit Plans for the current plan year prior to the Closing Date, or, if any such contributions will not be due prior to the Closing Date, has made adequate provision for reserves therefor. All such contributions are fully deductible by Seller BCG for purposes of Seller’s BCG's federal income taxes, and Seller BCG has no actual or potential liability for the 10 percent tax imposed by section 4972 of the Code. (h) All Taxes, penalties, interest charges and other financial obligations to federal, state and local governments and to participants or beneficiaries under the Benefit Plans with respect to any period ending on or before the Closing Date have been or will be met in full on or before the Closing Date. (i) All reports, returns, notices and similar documents with respect to the Benefit Plans required to be filed with any governmental agency or distributed to any Benefit Plan participant or beneficiary have been duly and timely filed or distributed. (j) Each Benefit Plan required to be listed on Schedule 4.11(d4.12(d) that is intended to be qualified under Section 401 of the Code is (and from its establishment has been) the subject of a favorable determination letter or opinion letter issued by the IRS, and no such determination letter or opinion letter has been revoked nor, to Seller’s BCG's knowledge, has revocation been threatened, nor has any Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect which would adversely affect its qualification or materially increase its cost, and no Benefit Plan has been amended in a manner that would require security to be provided in accordance with Section 401(a)(29) of the Code. Each trust maintained under any such Benefit Plan is (and from its establishment has been) exempt from federal income tax under Section 501 of the Code. (k) Each Benefit Plan required to be listed on Schedule 4.11(d4.12(d) complies, in both form and operation, with the applicable requirements of ERISA, the Code and other applicable law. There are no pending investigations by any governmental agency involving such Benefit Plans, no termination proceedings involving the Benefit Plans, and, to Seller’s BCG's knowledge, no threatened or pending claims (except for routine claims for benefits), suits or proceedings against any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan which could give rise to any liability nor, to Seller’s BCG's knowledge, are there any facts which could give rise to any liability in the event of any such investigation, claim, suit or proceeding. (l) Neither Seller BCG nor any “"party in interest” " (as defined in section 3(14) of ERISA) or “"disqualified person” " (as defined in section 4975(e)(2) of the Code) with respect to any Benefit Plan has engaged in a “"prohibited transaction” " (as defined in Section 4975 of the Code or Section 406 of ERISA) for which a statutory, administrative, or regulatory exemption is not available. No Benefit Plan has been (or will be as a result of the transactions contemplated hereby) completely or partially terminated or has been (or will be as a result of the transactions contemplated hereby) subject to a “"reportable event” " (as defined in section 4043 of ERISA) or to any event requiring disclosure under section 4062(e) or 4063(a) of ERISA. (m) Seller BCG is in full compliance with the continuation coverage requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the health insurance obligations (sometimes referred to as “"HIPAA”") imposed by section 9801 of the Code and Part 7 of Subtitle B of Title I of ERISA. (n) Other than the group health plan continuation coverage requirements required by applicable law (as described in subsection (m) above), the cost of which is fully paid by the former employee or his or her dependent, Seller BCG does not maintain retiree life or retiree health plans providing for continuing coverage for any employee or any beneficiary of an employee after the employee’s 's termination of employment. (o) Prior to the Closing Date, BCG will not establish any new Benefit Plan for the employees of BCG, except with the written consent of Parent, nor will BCG amend or modify any existing Benefit Plan as to any benefit or in any other way, except with the written consent of Parent. (p) Except as set forth on Schedule 4.11(o4.12(p), Seller BCG is not a party to any oral or written agreement with any director, executive, officer or other key employee, the benefits of which are contingent or the terms of which are materially altered or permit termination, upon the occurrence of a transaction of the nature contemplated by this Agreement Agreement, and which provides for the Related Agreementspayment of in excess of Fifty Thousand Dollars ($50,000), or agreement or plan, including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement and the Related Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement and the Related AgreementsAgreement.