Common use of Employee Plans Clause in Contracts

Employee Plans. Each Employee Plan is in compliance in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code), and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations.

Employee Plans. Each Employee Plan is in compliance in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of for any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in by Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no an Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no a Company nor any or an ERISA Affiliate has incurred incurs liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paidpremiums paid when due), (c) no a Company nor any or an ERISA Affiliate has withdrawn withdraws in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any a Company, an ERISA Affiliate, nor any or a Multiemployer Plan to which any a Company or any ERISA Affiliate contributes to or has contributed to, has received receives notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no a Company nor any or an ERISA Affiliate has engaged engages in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code), and or (f) no a “reportable event” (as defined in section 4043 of ERISA) has occurred occurs with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations.

Employee Plans. Each Employee Plan is in compliance in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Neither Borrower nor any Guarantor Subsidiary shall, nor shall any such Person cause any member of its Controlled Group (as that term is defined in the Code) to, fail to maintain and administer any Employee Plan in accordance with the applicable requirements of the Code and ERISA. Neither Borrower nor any Guarantor Subsidiary shall permit or Multiemployer suffer to exist any circumstances with respect to any Employee Plan that could have a material adverse effect on Borrower or such Guarantor Subsidiary. (b) With respect to any Pension Plan, as applicable, has neither Borrower nor any “unpaid minimum required contribution” Guarantor Subsidiary shall (as described in section 4971(c)(4i) permit any accumulated funding deficiency (within the meaning of Section 412(a) of the Code), whether waived or not waivedunwaived, or to exist; (ii) permit the present value of accrued benefits (based on the most recent actuarial valuation prepared for each such plan, if any, in accordance with ongoing actuarial assumptions) to exceed the current value of plan assets allocable to such benefits by a material amount; (iii) permit any “accumulated funding deficiency” reportable event (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV Section 4043 of ERISA) to occur, other than purchases and sales of securities from a plan trustee as reported in the audited financial statements of such plan; (eiv) no Company nor any ERISA Affiliate has engaged in any “permit a prohibited transaction” transaction (as defined in section 406 within the meaning of ERISA or section Section 4975 of the Code), and ) to occur which has or could have a material adverse effect on Borrower or any Guarantor Subsidiary; (fv) no “reportable event” incur any material liability to the PBGC; or (as defined in section 4043 vi) incur any material withdrawal liability (within the meaning of Section 4201(a) of ERISA). (c) has occurred with respect Neither Borrower nor any Guarantor Subsidiary shall incur a material obligation to an Employee Planprovide post-employment health care benefits to any of its current or former employees, excluding events for which except as may be required by Section 4980B of the notice requirement is waived under applicable PBGC regulationsCode or otherwise required by law.

Employee Plans. Each Employee Plan is (a) For the purposes of this Agreement, all "employee benefit plans," as defined in compliance in all material respects with, and has been administered in compliance with, the applicable provisions Section 3(3) of ERISA, and all other employee benefit plans or other benefit arrangements, including executive compensation, directors' benefit, bonus or other incentive compensation, severance and deferred compensation plans and practices which USI or any of its subsidiaries maintains, is a party to, contributes to or has any obligation to or liability shall be defined as individually a "USI Employee Benefit Plan" and collectively, the Code, and any other applicable law. No "USI Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 Benefit Plans". (b) As of the Code. Except where the occurrence or existencedate hereof, except for exceptions which, individually or in the aggregate, is have not had and would not have a Material Adverse Event Effect on USI, (i) all payments required to be made by or under any USI Employee Benefit Plan, any related trusts, or any collective bargaining agreement have been made; (ii) USI and its subsidiaries have performed all obligations required to be performed by them under any USI Employee Benefit Plan; (iii) the USI Employee Benefit Plans have been administered in compliance with their terms and, if applicable, the requirements of ERISA, the Code and other applicable laws; (iv) there are no actions, suits, arbitrations or claims (other than routine claims for benefits) pending or, in to the knowledge of USI, threatened, with respect to any event, likely to USI Employee Benefit Plan; and (v) USI and its subsidiaries have no liability as a result in a Lien on the assets of any Company "prohibited transaction" (as defined in Section 406 of ERISA and Section 4975 of the Code) for any excise tax or civil penalty. (c) Except for exceptions which, individually or in the Companies securing aggregate, have not had and would not have a Material Adverse Effect on USI, USI and its subsidiaries have not incurred any unsatisfied withdrawal liability with respect to any Multiemployer Plan. (d) Except for exceptions which, individually or in the aggregate, have not and would not have a Material Adverse Effect on USI, each of the USI Employee Benefit Plans which is intended to be "qualified" within the meaning of Section 401(a) and 401(k), if applicable, and 501(a) of the Code has been determined by the IRS to be so "qualified" or USI intends to seek such a determination, and USI knows of no fact which would adversely affect the qualified status of any Company such USI Employee Benefit Plan or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that which is reasonably likely to be secured by Liens) in excess preclude the issuance of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA such IRS determination retroactive to the PBGC in connection with any Employee Plan (other than required insurance premiums, all original date of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code), and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulationssuch plan.

Employee Plans. Each (a) The Company has listed on Schedule 3.20(a) all Employee Plans and has made available to Buyer complete copies of each material Employee Plan is and all amendments (and any amendments proposed as of the date hereof) thereto, together with the most recent annual report and actuarial report, if applicable, prepared in compliance connection therewith. (b) Except as set forth in all material respects withSchedule 3.20(b), and has been administered in compliance withas of December 31, 2004, the applicable provisions fair market value of the assets of each Employee Plan subject to Title IV of ERISA (other than a “multiemployer plan,” as defined in Section 3(37) of ERISA, ) (a “Title IV Plan”) (excluding for these purposes any accrued but unpaid contributions) exceeded the present value of all benefits accrued under such Title IV Plan determined using the assumptions used for plan funding purposes. No “accumulated funding deficiency,” as defined in Section 412 of the Code, and has been incurred with respect to any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this such Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code)412, whether or not waived. No “reportable event,” within the meaning of Section 4043 of ERISA, other than a “reportable event” that would not reasonably be expected to have a Material Adverse Effect, and no event described in Sections 4062 or 4063 of ERISA, has occurred in connection with any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of Employee Plan. Neither the Code), (b) no Company nor any ERISA Affiliate thereof has incurred incurred, or reasonably expects to incur prior to the Effective Time, (i) any liability under Title IV of ERISA to the PBGC arising in connection with the termination of, or a complete or partial withdrawal from, any Employee Plan plan covered or previously covered by Title IV of ERISA or (other than required insurance premiums, all ii) any liability under Section 4971 of which have been paid), the Code that in either case could become a liability of Buyer or any of its ERISA Affiliates after the Effective Time. (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any The Company or any ERISA Affiliate contributes the Company Subsidiaries make contributions to or has contributed to, has received notice concerning the determination multiemployer plans that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning are pension plans covered by Subtitle E of Title IV of ERISA, and with respect to any such multiemployer plan, except as set forth in Schedule 3.20(c): (ei) no none of the Company or the Company Subsidiaries has incurred any material liability in respect of any withdrawal liability under Title IV of ERISA nor any ERISA Affiliate has engaged does it reasonably expect to incur such liability if, as of the Effective Time, the Company, the Company Subsidiaries or the Surviving Corporation were to engage in any “prohibited transaction” a complete withdrawal (as defined in section 406 Section 4203 of ERISA ERISA) or section 4975 of the Code), and (f) no “reportable event” partial withdrawal (as defined in section 4043 Section 4205 of ERISA) from any such multiemployer plan; and (ii) no such multiemployer plan is in reorganization or insolvent (as those terms are defined in Sections 4241 and 4245 of ERISA, respectively). (d) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, or has pending or has time remaining in which to file an application for such determination from the Internal Revenue Service, and the Company is not aware of any reason why any such determination letter should be revoked or not be reissued. The Company has made available to Buyer copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. Each Employee Plan has been maintained 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, which are applicable to such Employee Plan. Other than as disclosed in Schedules 3.20(b), 3.20(c), 3.20(e), 3.20(f) and 3.20(g), no events have occurred with respect to any Employee Plan that has resulted or would be reasonably likely to result in payment or assessment by or against the Company or its Company Subsidiaries of any material excise taxes or other material liability imposed by ERISA, the Code or other applicable laws, rules and regulations, either directly or by reason of their affiliation with an ERISA Affiliate (the definition of which, for purposes of this Section 3.20(d), shall disregard the proviso carving out the DLJ Entities or any of their Affiliates), other than any obligation to provide in the ordinary course compensation or benefits in accordance with the terms of such Employee Plan. (e) Except as set forth in Schedule 3.20(e), neither the Company nor any Company Subsidiary has any current or projected liability in respect of post-employment or retirement health or life insurance benefits for former or current employees of the Company or any Company Subsidiary, except as required to avoid excise tax under Section 4980B of the Code. (f) Except as disclosed on Schedule 3.20(f), no Employee Plan exists that, as a result of the execution of this Agreement, stockholder approval of this Agreement or the transactions contemplated to be consummated by this Agreement (whether alone or in connection with any subsequent event(s)), will entitle any employee of the Company or any Company Subsidiary to (i) severance pay or any increase in severance pay upon any termination of employment after the date of this Agreement, (ii) except as provided in Section 7.04, accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any of the Employee Plans or (iii) limit or restrict the right of the Company to merge, amend or terminate any of the Employee Plans. (g) Except as disclosed on Schedule 3.20(g), with respect to any Employee Plan covering any employee residing or working outside of the United States (a “Foreign Employee Plan”) (i) each Foreign Employee Plan has been maintained in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations which are applicable to such Foreign Employee Plan, excluding events (ii) each Foreign Employee Plan that is required to be funded has sufficient assets such that its fair market value as of December 31, 2004 exceeded the present value of all benefits accrued under such Foreign Employee Plan (determined using the assumptions used for which plan funding purposes), and with respect to all other Foreign Employee Plans, adequate reserves therefor have been established on the notice requirement is waived under accounting statements of the applicable PBGC regulationsCompany or Company Subsidiary, and (iii) no material liability or obligation of the Company or any Company Subsidiary exists with respect to such Foreign Employee Plan (other than, in the case of clause (iii), any obligation to provide in the ordinary course compensation or benefits in accordance with the terms of such Foreign Employee Plan).

Employee Plans. Each Employee (a) Schedule 3.18(a) contains a correct and complete list of each U.S. Company Benefit Plan. (b) The Company has provided or made available to Parent or its counsel with respect to each and every U.S. Company Benefit Plan a true and complete copy of all plan documents, if any, including related trust agreements, funding arrangements, and insurance contracts and all amendments thereto; and, to the extent applicable, (i) the most recent determination letter, if any, received by the Company or any of its Subsidiaries from the IRS regarding the tax-qualified status of such Company Benefit Plan; (ii) the most recent financial statements for such Company Benefit Plan, if any; (iii) the most recent actuarial valuation report, if any; (iv) the current summary plan description and any summaries of material modifications; and (v) Form 5500 Annual Returns/Reports, together with all schedules thereto, for the most recent plan year. (c) With respect to each Company Benefit Plan and each “employee benefit pension plan” within the meaning of Section 3(2) of ERISA sponsored, maintained or contributed to, or required to be contributed to by the Company or any current or former member of its “controlled group” (within the meaning of Section 414 of the Code or Section 4001 of ERISA) (each, an “ERISA Affiliate”), in each case that is a “single-employer plan” within the meaning of Section 3(41) of ERISA that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) the minimum funding standards (within the meaning of Sections 412 and 430 of the Code or Section 302 of ERISA) are satisfied, whether or not waived, and no application for a waiver of the minimum funding standard has been submitted to the IRS; (ii) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such reportable event; (iii) no liability (other than for premiums to the Pension Benefit Guaranty Corporation (the “PBGC”)) under Title IV of ERISA has been or is reasonably expected to be incurred by the Company or any of its ERISA Affiliates, and all premiums to the PBGC have been timely paid in full; (iv) the PBGC has not instituted proceedings to terminate any such plan, and, to the Knowledge of the Company, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such plan; (v) no such plan is currently, or is reasonably expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (vi) the fair market value of the assets and liabilities of such plan has been reported in accordance with GAAP by the Company on the most recent financial statements of the Company and (vii) neither the Company nor its Subsidiaries have engaged in a “substantial cessation of operations” within the meaning of Section 4062(e) of ERISA, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such event. (d) No Company Benefit Plan is a “multiemployer plan” as defined in Section 3(37) of ERISA, and none of the Company or any ERISA Affiliate has incurred any withdrawal liability which remains unsatisfied, and to the Knowledge of the Company, no events have occurred and no circumstances exist that could reasonably be expected to result in any such liability to the Company or any of its Subsidiaries. (e) Except as could not result in a material liability to the Company or its Subsidiaries, no event has occurred and no condition exists that would reasonably be expected to subject the Company (or any of its Subsidiaries) by reason of its affiliation with any ERISA Affiliate to any (i) Tax, penalty, fine or (ii) Lien (other than a Permitted Lien). (f) With respect to each Company Benefit Plan that is intended to qualify under Section 401(a) of the Code, such plan, and its related trust, has received, has an application pending or remains within the remedial amendment period for obtaining, a determination letter from the IRS that it is so qualified (taking into account all applicable matters for which the IRS will presently issue letters under the Economic Growth and Tax Relief Reconciliation Act of 2001, the Pension Funding Equity Act of 2005 and the Pension Protection Act of 2006) and that its trust is exempt from Tax under Section 501(a) of the Code, and nothing has occurred with respect to the operation of any such plan which could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any material liability, penalty or tax under ERISA or the Code. (g) Except as set forth on Schedule 3.18(g), there are no pending or, to the Knowledge of the Company, threatened material actions, claims or lawsuits against or relating to any Company Benefit Plan or against any fiduciary of any Company Benefit Plan with respect to the operation of such plan (other than routine benefits claims). (h) Each Company Benefit Plan has been established and administered in all material respects in accordance with its terms, and in compliance in all material respects with, and has been administered in compliance with, with the applicable provisions of ERISA, the CodeCode and other applicable laws, and all contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Company Benefit Plans to any funds or trusts established thereunder or in connection therewith have been made or have been accrued and reported on the Company’s financial statements. (i) Except as set forth on Schedule 3.18(i), none of the Company Benefit Plans provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA or any other applicable lawlaw or at the expense of the participant or the participant’s beneficiary. No Employee Plan is subject to There has been no material violation of the “at-riskcontinuation coverage requirement” requirements of “group health plans” as set forth in section 303 Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA with respect to any Company Benefit Plan to which such continuation coverage requirements apply. (j) Except as set forth on Schedule 3.18(j), neither the execution and section 430 delivery of this Agreement or the Amalgamation Agreement nor the consummation of the Code. transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase the amount of any compensation or benefits due, to any current or former employee of the Company and its Subsidiaries or with respect to any Company Benefit Plan; (ii) increase any benefits otherwise payable under any Company Benefit Plan; or (iii) result in the acceleration of the time of payment or vesting of any such compensation or benefits. (k) Except where as set forth on Schedule 3.18(k), neither the occurrence execution and delivery of this Agreement or existencethe Amalgamation Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) result in the payment of any amount that would, individually or in combination with any other such payment, not be deductible as a result of Section 280G of the aggregate, is Code. (l) Except as could not a Material Adverse Event or, in any event, likely to result in a Lien on material liability to the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amountits Subsidiaries, (a) no Employee Plan or Multiemployer Plan, as applicable, has any each “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiencynonqualified deferred compensation plan” (as defined in section 302 of ERISA or section 412 Section 409A(d)(1) of the Code)) of the Company has been (i) operated since January 1, 2005 in good faith compliance with Section 409A of the Code and all applicable rules and regulations, (bii) no Company nor any ERISA Affiliate has incurred liability brought into documentary compliance with Section 409A of the Code effective as of December 31, 2008, in accordance with the Final Treasury Regulations promulgated under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 Section 409A of the Code), and (fiii) no “reportable event” operated since January 1, 2009, in compliance with Section 457A of the Code and all applicable rules, regulations, and guidance thereunder. (m) Except as defined set forth on Schedule 3.18(m) or as could not result in section 4043 a material liability to the Company or its Subsidiaries, all Company Benefit Plans subject to the laws of ERISAany jurisdiction outside of the United States (i) has occurred have been maintained in accordance with respect all applicable requirements, (ii) if they are intended to an Employee Planqualify for special tax treatment, excluding events meet all requirements for which the notice requirement is waived under applicable PBGC regulationssuch treatment, and (iii) if they are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.

Employee Plans. (a) Section 4.10(a) of the Comet Disclosure Letter contains a correct and complete list, as of the date of this Agreement, of each material Comet Benefit Plan. Notwithstanding anything to the contrary in this Agreement, disclosures made in the Comet SEC Documents prior to the date of this Agreement shall not constitute exceptions to the representations in this Section 4.10. (b) Comet has made available to Venus with respect to each material Comet Benefit Plan a true and complete copy (to the extent applicable) of (i) all plan documents, if any, including related trust agreements, funding arrangements and insurance contracts, and all amendments thereto, or written summaries of the material terms thereof, (ii) the most recent summary plan description for each material Comet Benefit Plan for which such summary plan description is required by applicable Law and (iii) the most recent annual report on Form 5500 required to be filed with the IRS with respect thereto, audited financial statements and actuarial valuation reports, if any. (c) None of Comet or any of its ERISA Affiliates maintains or contributes to, or is obligated to maintain or contribute to (i) any plan that is subject to Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) a Multiemployer Plan or (iii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA. With respect to any Multiemployer Plan, (A) neither Comet nor any of its ERISA Affiliates has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied or (B) to the Knowledge of Comet, as of the date hereof, no fact exists that would reasonably be expected to give rise to a partial withdrawal by Comet or any of its Subsidiaries from any Multiemployer Plan, in each case, except as would not have a Comet Material Adverse Effect. (d) With respect to each Comet Benefit Plan that is intended to qualify under Section 401(a) of the Code, such plan has received a favorable determination letter as to its qualification and that its related trust is exempt from Tax under Section 501(a) of the Code, and, to the Knowledge of Comet, nothing has occurred with respect to the operation of any such plan which would reasonably be expected to cause the loss of such qualification or exemption or the imposition of any material liability, penalty or Tax under ERISA or the Code. (e) There are no pending or, to the Knowledge of Comet, threatened actions, claims or lawsuits against or relating to any Comet Benefit Plan or trusts related thereto with respect to the operation of such plan (other than routine benefits claims), except where such claims would not have a Comet Material Adverse Effect. (f) Each Employee Comet Benefit Plan is has been established and administered in accordance with its terms, and in compliance in all material respects with, and has been administered in compliance with, with the applicable provisions of ERISA, the CodeCode and other applicable Laws, and all contributions required to have been made under any Comet Benefit Plan to any funds or trusts established thereunder or in connection therewith have been made or have been accrued and reported on Comet’s financial statements and there are no actions, liens, lawsuits, claims or complaints (other than routine claims for benefits) pending or, to the Knowledge of Comet, threatened against any Comet Benefit Plan, in each case, except as would not have a Comet Material Adverse Effect. (g) None of the Comet Benefit Plans provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA or any other applicable lawLaw or at the expense of the participant or the participant’s beneficiary. Any plan disclosed on Section 4.10(g) of the Comet Disclosure Letter may be amended in any manner or terminated without liability to Comet or any of its Subsidiaries. (h) Except as provided in this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) result in any payment becoming due to any current or former director, employee or consultant of Comet or any of its Subsidiaries, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of material compensation or benefits under, or materially increase the amount payable or result in any other material obligation pursuant to, any of the Comet Benefit Plans or (iii) limit or restrict the right of Comet or, after the consummation of the transactions contemplated hereby, the Surviving Corporation to merge, amend or terminate any Comet Benefit Plan. (i) No Employee material Comet Benefit Plan is provides for the gross-up or reimbursement of Taxes, including under Section 409A or 4999 of the Code or other similar Laws. (j) Except as would not have a Comet Material Adverse Effect, all Comet Benefit Plans subject to the “at-risk” requirements in section 303 Laws of ERISA and section 430 any jurisdiction outside of the Code. United States (i) have been maintained in accordance with all applicable requirements, (ii) that are intended to qualify for special Tax treatment, meet all requirements for such treatment, and (iii) that are intended to be funded and/or book-reserved, are fully funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions. (k) Except where the occurrence or existence, individually or in the aggregate, is as would not have a Comet Material Adverse Event orEffect, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein no condition exists that is reasonably likely to be secured by Lienssubject Comet or any of its Subsidiaries to any liability under Title IV of ERISA or to a civil penalty under Section 502(i) in excess or 502(l) of the Threshold AmountERISA or liability under Section 4069 of ERISA or Section 4975, (a) no Employee Plan 4976, 4980B, 4980D or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) 4980H of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code), and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations.

Employee Plans. (a) Section 3.17(a) of the Company Disclosure Letter contains a correct and complete list of each material Company Benefit Plan as of the date of this Agreement. (b) The Company has provided or made available to Parent with respect to each material Company Benefit Plan (i) a true and complete copy of all plan documents, if any, including related trust agreements, funding arrangements, and insurance contracts and all amendments thereto and (ii) to the extent applicable (A) the most recent actuarial valuation reports, (B) the most recent Form 5500 filed with the U.S. Department of Labor and all schedules thereto and (C) all current summary plan descriptions and summaries of material modifications. (c) With respect to each Company Benefit Plan that is intended to qualify under Section 401(a) of the Code, such plan, and its related trust, has received a determination letter from the IRS that it is so qualified and that its trust is exempt from Tax under Section 501(a) of the Code, and, to the Knowledge of the Company, nothing has occurred with respect to the operation of any such plan which would reasonably be expected to cause the loss of such qualification or exemption or the imposition of any liability, penalty or Tax under ERISA or the Code, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. (d) No condition exists that is reasonably likely to subject the Company or any of the Company Subsidiaries to any direct or indirect material liability under Title IV of ERISA or to a civil penalty under Section 502 of ERISA or liability under Section 4069 of ERISA or Section 4975, 4976, or 4980B of the Code or other liability with respect to the Company Benefit Plans or with respect to any ongoing, frozen or terminated “single-employer plan”, within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by the Company or any ERISA Affiliate, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. (e) With respect to any “multiemployer plan” as defined in Section 3(37) of ERISA (a “Multiemployer Plan”), neither the Company nor any of its ERISA Affiliates has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. (f) There are no pending or, to the Knowledge of the Company, threatened material actions, claims or lawsuits against or relating to any Company Benefit Plan or any trusts related thereto with respect to the operation of such plan (other than routine benefits claims), except where such claims would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. (g) Each Employee Company Benefit Plan is has been established and administered in all respects in accordance with its terms, and in compliance in all material respects with, and has been administered in compliance with, with the applicable provisions of ERISA, the CodeCode and other applicable Laws, and all contributions required to have been made under any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except where Company Benefit Plans to any funds or trusts established thereunder or in connection therewith have been made or have been accrued and reported on the occurrence or existenceCompany’s financial statements, in each case, except as would not, individually or in the aggregate, is not reasonably be expected to have a Company Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies Effect. (individually or when aggregated with any liability h) None of the Companies contemplated elsewhere in this Company Benefit Plans provide retiree health or life insurance benefits except as may be required by Section and in Section 8.8 4980B of the Code and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 601 of ERISA or section 412 any other applicable Law or at the expense of the Code)participant or the participant’s beneficiary. (i) Except as provided in this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) result in any material payment becoming due to any current or former director, employee or consultant of the Company and the Company Subsidiaries, (bii) no Company nor accelerate the time of payment or vesting or result in any ERISA Affiliate has incurred liability under ERISA to payment or funding (through a grantor trust or otherwise) of material compensation or benefits under, or materially increase the PBGC amount payable or result in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed material obligation pursuant to, has received notice concerning any of the determination that the Multiemployer Plan isCompany Benefit Plans, or is expected to be, insolvent or (iii) result in reorganization, any payment that would be considered an “excess parachute payment” within the meaning of Title IV Section 280G of ERISA, (e) no Company nor any ERISA Affiliate has engaged in the Code to any “prohibited transactiondisqualified individual” (as defined in section 406 within the meaning of ERISA or section 4975 Section 280G of the Code). (j) No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code, or otherwise. (k) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all Company Benefit Plans subject to the Laws of any jurisdiction outside of the United States (i) have been maintained in accordance with all applicable requirements, (ii) that are intended to qualify for special Tax treatment, meet all requirements for such treatment, and (fiii) no “reportable event” (that are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as defined in section 4043 of ERISA) has occurred with respect to an Employee Planappropriate, excluding events for which the notice requirement is waived under applicable PBGC regulationsbased upon reasonable actuarial assumptions.

Employee Plans. Each Employee (a) Parent has provided or made available to the Company or its counsel with respect to each and every Parent Benefit Plan a true and complete copy of all plan documents, if any, including related trust agreements, funding arrangements, and insurance contracts and all amendments thereto; and, to the extent applicable, (i) the most recent determination letter, if any, received by Parent or Subsidiary from the IRS regarding the tax-qualified status of such Parent Benefit Plan; (ii) the most recent financial statements for such Parent Benefit Plan, if any; (iii) the most recent actuarial valuation report, if any; (iv) the current summary plan description and any summaries of material modifications; and (v) Form 5500 Annual Returns/Reports, together with all schedules thereto, for the most recent plan year. (b) With respect to each Parent Benefit Plan and each “employee benefit pension plan” (within the meaning of Section 3(2) of ERISA) sponsored, maintained or contributed to, or required to be contributed to by Parent or any current or former member of Parent’s “controlled group” (within the meaning of Section 414 of the Code or Section 4001 of ERISA) (each, a “Parent ERISA Affiliate”), in each case that is a “single-employer plan” (within the meaning of Section 3(41) of ERISA) subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) the minimum funding standards (within the meaning of Sections 412 and 430 of the Code or Section 302 of ERISA) are satisfied, whether or not waived, and no application for a waiver of the minimum funding standard has been submitted to the IRS; (ii) no “reportable event” (within the meaning of Section 4043(c) of ERISA) for which the 30-day notice requirement has not been waived has occurred, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such reportable event; (iii) no liability (other than for premiums to the PBGC) under Title IV of ERISA has been or is reasonably expected to be incurred by Parent or any Parent ERISA Affiliate, and all premiums to the PBGC have been timely paid in full; (iv) the PBGC has not instituted proceedings to terminate any such plan, and, to the Knowledge of Parent, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such plan; (v) no such plan is currently, or is reasonably expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (vi) the fair market value of the assets and liabilities of such plan has been reported in accordance with GAAP by Parent on the most recent financial statements of Parent; and (vii) neither Parent nor its Subsidiaries have engaged in a “substantial cessation of operations” within the meaning of Section 4062(e) of ERISA, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such event. (c) No Parent Benefit Plan is a “multiemployer plan” as defined in Section 3(37) of ERISA, and neither Parent nor any Parent ERISA Affiliate has incurred any withdrawal liability which remains unsatisfied with respect to any “multiemployer plan” and to the Knowledge of Parent, no events have occurred and no circumstances exist that could reasonably be expected to result in any such liability to Parent or any of its Subsidiaries. (d) Except as could not result in a material liability to Parent or its Subsidiaries, no event has occurred and no condition exists that would reasonably be expected to subject Parent (or any of its Subsidiaries) by reason of its affiliation with any Parent ERISA Affiliate to any (i) Tax, penalty, fine or (ii) Lien (other than a Permitted Lien). (e) With respect to each Parent Benefit Plan that is intended to qualify under Section 401(a) of the Code, such plan, and its related trust, has received, has an application pending or remains within the remedial amendment period for obtaining, a determination letter from the IRS that it is so qualified (taking into account all applicable matters for which the IRS will presently issue letters under the Economic Growth and Tax Relief Reconciliation Act of 2001, the Pension Funding Equity Act of 2005 and the Pension Protection Act of 2006) and that its trust is exempt from Tax under Section 501(a) of the Code, and nothing has occurred with respect to the operation of any such plan which could reasonably be expected to cause the loss of such qualification or exemption or the imposition of any material liability, penalty or tax under ERISA or the Code. (f) Except as set forth on Schedule 4.18(f), there are no material actions, claims or lawsuits pending or, to the Knowledge of Parent, threatened against or relating to any Parent Benefit Plan or against any fiduciary of any Parent Benefit Plans with respect to the operation of such plan (other than routine benefits claims). (g) Each Parent Benefit Plan has been established and administered in all material respects in accordance with its terms, and in compliance in all material respects with, and has been administered in compliance with, with the applicable provisions of ERISA, the CodeCode and other applicable laws, and all contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Parent Benefit Plans to any funds or trusts established thereunder or in connection therewith have been made or have been accrued and reported on the Parent’s financial statements. (h) Except as set forth on Schedule 4.18(h), none of the Parent Benefit Plans provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA or any other applicable lawlaw or at the expense of the participant or the participant’s beneficiary. No Employee Plan is subject to There has been no material violation of the “at-riskcontinuation coverage requirement” requirements of “group health plans” as set forth in section 303 Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA with respect to any Parent Benefit Plan to which such continuation coverage requirements apply. (i) Except as set forth on Schedule 4.18(i), neither the execution and section 430 delivery of this Agreement or the Amalgamation Agreement nor the consummation of the Code. transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase the amount of any compensation or benefits due, to any current or former employee of Parent and its Subsidiaries or with respect to any Parent Benefit Plan; (ii) increase any benefits otherwise payable under any Parent Benefit Plan; or (iii) result in the acceleration of the time of payment or vesting of any such compensation or benefits. (j) Except where as set forth on Schedule 4.18(j), neither the occurrence execution and delivery of this Agreement or existencethe Amalgamation Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) result in the payment of any amount that would, individually or in combination with any other such payment, not be deductible as a result of Section 280G of the aggregate, is Code. (k) Except as could not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company material liability to Parent or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amountits Subsidiaries, (a) no Employee Plan or Multiemployer Plan, as applicable, has any each “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiencynonqualified deferred compensation plan” (as defined in section 302 of ERISA or section 412 Section 409A(d)(1) of the Code)) of Parent has been (i) operated since January 1, 2005 in good faith compliance with Section 409A of the Code and all applicable rules and regulations, (bii) no Company nor any ERISA Affiliate has incurred liability brought into documentary compliance with Section 409A of the Code effective as of December 31, 2008, in accordance with the Final Treasury Regulations promulgated under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 Section 409A of the Code), and (fiii) no “reportable event” operated since January 1, 2009, in compliance with Section 457A of the Code and all applicable rules, regulations, and guidance thereunder. (l) Except as defined could not result in section 4043 a material liability to Parent or its Subsidiaries, all Parent Benefit Plans subject to the laws of ERISAany jurisdiction outside of the United States (i) has occurred have been maintained in accordance with respect all applicable requirements, (ii) if they are intended to an Employee Planqualify for special tax treatment, excluding events meet all requirements for which the notice requirement is waived under applicable PBGC regulationssuch treatment, and (iii) if they are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.

Employee Plans. (a) Section 3.18(a) of the Company Disclosure Schedule contains a correct and complete list of each material Company Benefit Plan. (b) The Company has provided Parent with respect to each material Company Benefit Plan a true and complete copy of all plan documents, if any, including related trust agreements, funding arrangements, and insurance contracts and all amendments thereto. (c) None of the Company or any of its ERISA Affiliates has, at any time during the last six years, maintained or contributed to, or been obligated to maintain or contribute to (i) any plan that is subject to Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) a “multiemployer plan” as defined in Section 3(37) of ERISA (a “Multiemployer Plan”), or (iii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA. None of the Company or any of its ERISA Affiliates has withdrawn at any time within the preceding six years from any Multiemployer Plan, or incurred any withdrawal liability which remains unsatisfied, and no events have occurred and no circumstances exist that would reasonably be expected to result in any such liability to the Company or any of its Subsidiaries. (d) With respect to each Company Benefit Plan that is intended to qualify under Section 401(a) of the Code, such plan, and its related trust, has received, has an application pending or remains within the remedial amendment period for obtaining, a determination letter from the IRS that it is so qualified and that its trust is exempt from Tax under Section 501(a) of the Code, or such plan has been adopted under a prototype plan or volume submitter plan approved by the IRS, and nothing has occurred with respect to the operation of any such plan which would reasonably be expected to cause the loss of such qualification or exemption or the imposition of any material liability, penalty or Tax under ERISA or the Code. (e) There are no pending or, to the Knowledge of the Company, threatened material actions, claims or lawsuits against or relating to any Company Benefit Plan or against any fiduciary of any Company Benefit Plan with respect to the operation of such plan (other than routine benefits claims). (f) Each Employee Company Benefit Plan is has been established and administered in all material respects in accordance with its terms, and in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Laws, and all contributions required to have been made under any of the Company Benefit Plans to any funds or trusts established thereunder or in connection therewith have been made or have been accrued and reported on the Company’s financial statements. (g) None of the Company Benefit Plans provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA or any other applicable Law or at the expense of the participant or the participant’s beneficiary. (h) Except as provided in this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase the amount of any compensation or benefits due, to any current or former employee of the Company and its Subsidiaries or with respect to any Company Benefit Plan; (ii) increase any benefits otherwise payable under any Company Benefit Plan; (iii) result in the acceleration of the time of payment or vesting of any compensation or benefits; (iv) trigger any payment or funding (through a grantor trust or otherwise) of any compensation or benefits under any Company Benefit Plan; or (v) limit or prohibit the ability to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust. (i) No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code, or otherwise. (j) Except as would not reasonably be expected to result in a material liability to Company or its Subsidiaries, each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) is in documentary compliance with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 Section 409A of the Code. . (k) Except where the occurrence or existence, individually or in the aggregate, is as would not a Material Adverse Event or, in any event, likely reasonably be expected to result in a Lien on material liability to the assets Company or its Subsidiaries, all Company Benefit Plans subject to the Laws of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability jurisdiction outside of the Companies contemplated elsewhere United States (i) have been maintained in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amountaccordance with all applicable requirements, (aii) no Employee Plan or Multiemployer Planthat are intended to qualify for special Tax treatment, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, meet all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code)requirements for such treatment, and (fiii) no “reportable event” (that are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as defined in section 4043 of ERISA) has occurred with respect to an Employee Planappropriate, excluding events for which the notice requirement is waived under applicable PBGC regulationsbased upon reasonable actuarial assumptions.

Employee Plans. Each Employee Plan is in compliance in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien as disclosed on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold AmountSCHEDULE 7.11, (a) no Employee Plan or Multiemployer Plan, as applicable, subject to ERISA has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “incurred an "accumulated funding deficiency” " (as defined in section Section 302 of ERISA or section Section 412 of the Code), (b) no Company neither the Borrower nor any ERISA Affiliate has incurred liability liability, except for liabilities for premiums that have been paid or that are not past due, under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid)Plan, (c) no Company neither the Borrower nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan in a manner that has given rise to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of a withdrawal liability under Title IV of ERISA, (ed) no Company neither the Borrower nor any ERISA Affiliate has engaged in any “"prohibited transaction” " (as defined in section Section 406 of ERISA or section Section 4975 of the Code), and (fe) no “"reportable event” " (as defined in section Section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations, (f) neither the Borrower nor any ERISA Affiliate has any liability, or is subject to any Lien, under ERISA or the Code to or on account of any Employee Plan, (g) each Employee Plan subject to ERISA and the Code complies in all material respects, both in form and operation, with ERISA and the Code, and (h) no Multiemployer Plan subject to the Code is in reorganization within the meaning of Section 418 of the Code. The present value of all benefit liabilities within the meaning of Title IV of ERISA under each Employee Plan (based on those actuarial assumptions used to fund such Employee Plan) did not, as of the last annual valuation date for the 1999 plan year of such Plan, exceed the value of the assets of such Employee Plan, and the total present values of all benefit liabilities within the meaning of Title IV of ERISA of all Employee Plans (based on the actuarial assumptions used to fund each such Plan) did not, as of the respective annual valuation dates for the 1999 plan year of each such Plan, exceed the value of the assets of all such plans.

Employee Plans. (a) Section 4.18(a) of the Company Disclosure Letter sets forth a true, complete and correct list of every material Employee Plan. (b) Each Employee Plan that is intended to qualify under Section 401(a) of the Code has received or may rely upon a favorable determination, approval or opinion letter from the IRS with respect to such qualification and, to the knowledge of the Company, no event or omission has occurred that would be reasonably expected to cause any Employee Plan to lose such qualification or require corrective action to the IRS Employee Plans Compliance Resolution System to maintain such qualification. (i) Each Employee Plan is in compliance and has been established, operated, and administered in all material respects within accordance with applicable laws and regulations and with its terms, including without limitation ERISA, the Code and the Patient Protection and Affordable Care Act of 2010, as amended (the “Affordable Care Act”), (ii) no litigation or governmental administrative proceeding, audit or other proceeding (other than those relating to routine claims for benefits) is pending or, to the knowledge of the Company, threatened with respect to any Employee Plan, and (iii) the Company is not liable or responsible for any assessable payment, Taxes or penalties under Section 4980D or Section 4980H of the Code or under the Affordable Care Act or in connection with requirements relating thereto. (d) Neither the Company nor any trade or business that is treated as a single employer with the Company pursuant to Sections 414(b), (c), (m) or (o) of the Code as of the date of this Agreement (each, an “ERISA Affiliate”) has in the past six (6) years maintained, contributed to, or been administered in compliance with, the applicable provisions required to contribute to (whether contingent or otherwise) (i) any employee benefit plan that is or was subject to Title IV of ERISA, Section 412 of the Code, Section 302 of ERISA, (ii) a “multiemployer plan” within the meaning of Section 3(37) of ERISA, (iii) any funded welfare benefit plan within the meaning of Section 419 of the Code, (iv) any “multiple employer plan” (within the meaning of Section 210 of ERISA or Section 413(c) of the Code) or (v) any “multiple employer welfare arrangement” (as such term is defined in Section 3(40) of ERISA). (e) No Employee Plan provides health or long-term disability benefits that are not fully insured through an insurance contract. (f) The per share exercise price of each Company Stock Option is no less than the fair market value of a share of Company common stock on the date of grant of such Company Stock Option determined in a manner consistent with Section 409A of the Code. Each Employee Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and any other maintained in all material respects in operational and documentary compliance with Section 409A of the Code and applicable law. guidance thereunder. (g) No Employee Plan is subject to the laws of any jurisdiction outside the United States. No Employee Plan provides for any tax “atgross-riskup” requirements in section 303 of ERISA and section 430 or similar “make-whole” payments for any tax incurred under Section 4999 or 409A of the Code. Except where . (h) Neither the occurrence or existence, individually execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby could (either alone or in conjunction with any other event) (i) result in, or cause the aggregateaccelerated vesting payment, is not a Material Adverse Event orfunding or delivery of, in or increase the amount or value of, any eventpayment or benefit to any employee, likely to result in a Lien on officer, director or other service provider of the assets of any Company or the Companies securing liability any of its ERISA Affiliates, (ii) further restrict any Company or the Companies (individually or when aggregated with any liability rights of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely Company to be secured by Liens) in excess of the Threshold Amount, (a) no amend or terminate any Employee Plan or Multiemployer Plan, as applicable, has (iii) result in any “unpaid minimum required contributionparachute payment” (as described defined in section 4971(c)(4Section 280G(b)(2) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code), and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations.

Employee Plans. (a) Schedule 2.10(a) sets forth a true and complete list of all Business Employees and Business Contractors, together with their salaries, commission plan (if applicable) and location, as of April 30, 2008. As of the date hereof, no Business Employee or Business Contractor of the Division or the Company has provided notice of resignation that is effective following completions of the transactions contemplated hereby. (b) Schedule 2.10(b) lists each employee benefit plan (as such term is defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and each other material employee benefit plan, program or arrangement participated in or maintained by the Division or the Company (the “Employee Plans”). (c) All Employee Plans have been established, registered, maintained and administered in compliance with their terms and with the requirements of any applicable law, including, but not limited to, ERISA and the Internal Revenue Code of 1986, as amended (the “Code”), except where the failure to comply would not result in a Material Adverse Effect. (d) Each Employee Plan that is in compliance in all material respects with, and intended to meet the requirements of a “qualified plan” under Section 401(a) of the Code has been administered in compliance with, received a favorable determination letter from the applicable provisions of ERISA, the Code, and any other applicable law. Internal Revenue Service. (e) No Employee Plan is subject to the “at-risk” requirements in section 303 Title IV of ERISA and section 430 was terminated within six years prior to the date hereof. Neither the Seller nor the Company has engaged in any transaction that could reasonably be expected to give rise to Liability under Section 4069 or 502 of ERISA or Section 4975 of the CodeCode that could become a Liability of Buyer. Except where Neither Seller nor the occurrence Company has within six years prior to the date hereof been subject to any lien imposed under Section 412(n) of the Code or existence, individually or in the aggregate, is not a Material Adverse Event or, in Section 302(f) of ERISA with respect to any event, likely Employee Plan. (f) No event has occurred that could reasonably be expected to result in a Lien on the assets of any Company subject Buyer or the Companies securing liability Company to any Liability under any Title IV of any Company ERISA or the Companies (individually or when aggregated with any liability Section 412 of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely Code with respect to be secured by Liens) in excess of the Threshold Amount, (a) no any Employee Plan or Multiemployer Planany other employee benefit plan or arrangement maintained or contributed to by Seller or any entity, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code)trade or business, whether or not waivedincorporated, which together with Seller or any the Company would be deemed to be a “accumulated funding deficiencysingle employer” (as defined in section 302 within the meaning of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paidSection 414(b), (c) no Company nor any or (m) of the Code or Section 4001(b)(1) of ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any an “ERISA Affiliate, nor any Multiemployer ”). (g) None of the assets of the Seller 401(k) Plan transferred pursuant to which any Company or any ERISA Affiliate contributes Section 4.6 is subject to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning requirements of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 Section 417 of the Code), and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations.

Employee Plans. Each Employee Plan is in compliance in Schedule 4.19 sets out all material respects withthe employee benefit plans, programs and has been administered in compliance witharrangements maintained or contributed to by The Second Cup Ltd., the applicable provisions of ERISAVendor, the CodeCorporation or any of its Subsidiaries for the benefit of any current or former employee, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 officer or director of the CodeCorporation or any of its Subsidiaries (the "Employee Plans"). Except where the occurrence or existenceas set forth in Schedule 4.19 and except as would not, individually or in the aggregate, is not have a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies Effect: (individually or when aggregated with any liability i) none of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that Employee Plans is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, multi-employer plan within the meaning of ERISA; (ii) none of the Employee Plans promises or provides retiree medical or life insurance benefits to any person; (iii) each Employee Plan intended to be qualified under Section 401(a) of the United States Internal Revenue Code of 1986, as amended (the "Code") has received a favourable determination letter from the IRS that it is so qualified and nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such Employee Plan; (iv) each Employee Plan has been operated in all material respects in accordance with its terms and the requirements of applicable law; (v) neither the Corporation nor any Subsidiary has incurred any direct or indirect liability arising out of, by operation of Title IV of ERISAERISA in connection with the termination of, (e) no Company nor or withdrawal from any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code), and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events or other retirement plan or arrangement, and no fact or event exist that could reasonably be expected to give rise to any such liability; and (vi) the Corporation and the Subsidiaries have not incurred any liability under, and have complied in all respects with, the Worker Adjustment Retraining Notification Act ("WARN") and no fact exist that could give rise to liability under such Act. Except as set forth in Schedule 4.19, the aggregate accumulated benefit obligations of each Employee Plan subject to Title IV of ERISA (as at the date of the most recent actuarial valuation prepared for which such Employee Plan) do not exceed the notice requirement is waived under applicable PBGC regulationsfair market value of the assets of such Employee Plan (as at the date of such valuation).

Employee Plans. Each Employee Plan is in compliance in all material respects withExcept (A) as disclosed on Schedule 7.11, and has been administered in compliance with(B) as disclosed on (1) the Financials of the Companies or of any Company or (2) a Form 8-K filed by any Company with any securities exchange, the applicable provisions of ERISA, the Code, Securities and Exchange Commission or any other applicable law. No Employee Plan similar governmental authority, in each case as the foregoing is subject furnished or deemed furnished pursuant to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except Section 8.1, or (C) as disclosed pursuant to Section 8.1(e), or (D) where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold AmountEvent, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any incurred an “accumulated funding deficiency” (as defined in section Section 302 of ERISA or section Section 412 of the CodeIRC), (b) no neither any Company nor any ERISA Affiliate has incurred liability liability, except for liabilities for premiums that have been paid or that are not past due, under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid)Plan, (c) no neither any Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan in a manner that has given rise to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of a withdrawal liability under Title IV of ERISA, (ed) no Company neither the Borrower nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section Section 406 of ERISA or section Section 4975 of the CodeIRC), and (fe) no “reportable event” (as defined in section Section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations, (f) neither any Company nor any ERISA Affiliate has any liability, or is subject to any Lien, under ERISA or the IRC to or on account of any Employee Plan, (g) each Employee Plan complies in all material respects, both in form and operation, with ERISA and the IRC, (h) no Multiemployer Plan subject to the IRC is in reorganization within the meaning of Section 418 of the IRC and (i) no Employee Plan has been terminated in a distress termination under Section 4041(c) of ERISA.

Employee Plans. (i) Schedule C(v) of the Alpha Disclosure Letter identifies each material Employee Plan. A true, up-to-date and complete copy of each material Employee Plan (including, where oral, written summaries of the terms thereof, and any trust agreement, statement of investment policies and procedures, insurance contract, employee brochure or the like and all amendments thereto, prepared in connection with such Employee Plan) has been provided or made available to Crystal, together with all related documentation including annuity contracts, trust or other funding agreements, participation agreements, insurance policies and contracts, actuarial reports, annual information returns, investment management agreements, copies of all material correspondence with Governmental Entities and plan summaries, employee booklets, brochures and personnel manuals. Each Employee Plan is has been registered, administered and maintained in compliance with its terms and in all compliance with applicable Law. All obligations regarding the Employee Plans have been satisfied and there are no outstanding defaults or violations by any party thereto and no Taxes, penalties or fees are owing or eligible under any of the Employee Plans. (ii) The Company does not have any Employee Plan intended to be “qualified” within the meaning of Section 401(a) of the Code. (iii) There are no pending, or to the knowledge of Alpha, threatened claims (other than routine claims for benefits) by, on behalf of or against any Employee Plan or any trust related thereto which could reasonably be expected to result in any material respects withliability to Alpha, and has been administered no audit or other proceeding by a Governmental Entity, which could reasonably be expected to result in compliance withany material liability to Alpha, is pending, or to the applicable provisions knowledge of ERISAAlpha, the Code, and threatened with respect to any other applicable law. Employee Plan. (iv) No Employee Plan is or has within the last six (6) years been covered by Title IV of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code)Code or Section 302 of ERISA, (b) no Company and neither Alpha, not its Subsidiary nor any ERISA Affiliate has incurred any liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning respect of Title IV of ERISA, nor has any of them within the last six years maintained, established, participated in or contributed to, or is or has been obligated to contribute to, or has otherwise incurred any obligation or liability (eincluding any contingent liability) no Company nor under, any multiemployer plan (within the meaning of Section 3(37) of ERISA). “ERISA Affiliate has engaged in Affiliate” means any “prohibited transaction” employer (whether or not incorporated) that would be treated together with Alpha or its Subsidiaries as defined in section 406 a single employer within the meaning of ERISA or section 4975 Section 414 of the Code), and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations.

Employee Plans. Each Employee Plan is in compliance in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien as disclosed on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold AmountSCHEDULE 7.11, (a) no Employee Plan or Multiemployer Plan, as applicable, subject to ERISA has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “incurred an "accumulated funding deficiency” " (as defined in section Section 302 of ERISA or section Section 412 of the Code), (b) no Company neither the Borrower nor any ERISA Affiliate has incurred liability liability, except for liabilities for premiums that have been paid or that are not past due, under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid)Plan, (c) no Company neither the Borrower nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan in a manner that has given rise to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of a withdrawal liability under Title IV of ERISA, , (ed) no Company neither the Borrower nor any ERISA Affiliate has engaged in any “"prohibited transaction” " (as defined in section Section 406 of ERISA or section Section 4975 of the Code), and (fe) no “"reportable event” " (as defined in section Section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations, (f) neither the Borrower nor any ERISA Affiliate has any liability, or is subject to any Lien, under ERISA or the Code to or on account of any Employee Plan, (g) each Employee Plan subject to ERISA and the Code complies in all material respects, both in form and operation, with ERISA and the Code, and (h) no Multiemployer Plan subject to the Code is in reorganization within the meaning of Section 418 of the Code. The present value of all benefit liabilities within the meaning of Title IV of ERISA under each Employee Plan (based on those actuarial assumptions used to fund such Employee Plan) did not, as of the last annual valuation date for the 1999 plan year of such Plan, exceed the value of the assets of such Employee Plan, and the total present values of all benefit liabilities within the meaning of Title IV of ERISA of all Employee Plans (based on the actuarial assumptions used to fund each such Plan) did not, as of the respective annual valuation dates for the 1999 plan year of each such Plan, exceed the value of the assets of all such plans.

Employee Plans. Each Except as set forth in the Company Disclosure Letter, all employee benefit, welfare, bonus, deferred compensation, pension, profit sharing, stock option, employee stock ownership, consulting, severance, or fringe benefit plans, formal or informal, written or oral and all trust agreements related thereto, relating to any present or former directors, officers or employees of Company or Company Subsidiaries ("Company Employee Plan is Plans") have been maintained, operated, and administered in substantial compliance with their terms and currently comply, and have at all relevant times complied, in all material respects with, and has been administered in compliance with, with the applicable provisions requirements of ERISA, the Code, and any other applicable lawlaws. No Neither Company nor any Company Subsidiary maintains any defined benefit plan (as defined in Section 3(35) of ERISA) and, except for amendments adopted since January 1, 2003 to Company Employee Plan is subject Plans intended to the “at-risk” requirements in section 303 of ERISA and section 430 be qualified under Section 401(a) of the Code. Except where Code not materially affecting the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability qualified status of the Companies contemplated elsewhere in this Section plans (which are disclosed in, and in Section 8.8 copies of which have been delivered with, the Company Disclosure Letter), each such plan as amended (and Section 8.9 herein that is reasonably likely any trust relating thereto) either (i) has been determined by the IRS to be secured by Liensso qualified or (ii) in excess is the subject of the Threshold Amounta pending application for such determination that was timely filed. In addition, (a) no Employee Plan defined benefit plan previously maintained by the Company or Multiemployer Planany Company Subsidiary, as applicableif any, has been terminated in the six years preceding the date of this Agreement, nor has the PBGC instituted proceedings to terminate any “unpaid minimum required contribution” such defined benefit plan or to appoint a trustee or administrator of any such defined benefit plan, and no circumstances exist that constitute grounds under Section 4042(a)(2) of ERISA entitling the PBGC to institute any such proceedings and (as described b) Company has not maintained or participated in section 4971(c)(4a "multiemployer plan" within the meaning of Section 3(37) of ERISA or a "multiple employer plan" within the meaning of Section 413(c) of the Code), whether . Neither Company nor any Company Subsidiary has incurred any liability to the PBGC with respect to any "single-employer plan" within the meaning of Section 4001(a)(15) of ERISA currently or not waived, or formerly maintained by any “accumulated funding deficiency” (as defined in section 302 entity considered one employer with it under Section 4001 of ERISA or section 412 Section 414 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, except for premiums all of which have been paid)paid when due. Except as set forth in the Company Disclosure Letter, there is no basis for any Person to assert that Company or any Company Subsidiary has an obligation to institute any Employee Plan or any such other arrangement, agreement or plan. With respect to any insurance policy that heretofore has or currently does provide funding for benefits under any Company Employee Plan, (cx) there is no liability on the part of Company or any Company Subsidiary in the nature of a retroactive or retrospective rate adjustment, loss-sharing arrangement, or other actual or contingent liability, nor would there be any such liability if such insurance policy was terminated, and (y) no insurance company issuing such policy is in receivership, conservatorship, liquidation or similar proceeding and, to the knowledge of Company, no such proceeding with respect to any such insurer is imminent. Except as set forth in the Company Disclosure Letter, neither the execution of this Agreement, nor the consummation of the transactions contemplated thereby will (A) constitute a stated triggering event under any Company Employee Plan that will result in any payment (whether of severance pay or otherwise) becoming due from Company or any Company Subsidiary to any present or former officer, employee, director, shareholder, consultant or dependent of any of the foregoing or (B) accelerate the time of payment or vesting, or increase the amount of compensation due to any present or former officer, employee, director, shareholder, consultant, or dependent of any of the foregoing. Neither Company nor any ERISA Affiliate Company Subsidiary has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which obligations for retiree health and life benefits under any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code), and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which except as set forth in the notice requirement is waived under applicable PBGC regulationsCompany Disclosure Letter. Except as set forth in the Company Disclosure Letter, there are no restrictions on the rights of Company or Company Subsidiaries to amend or terminate any such Company Employee Plan without incurring any liability thereunder.

Employee Plans. Each Employee Plan is (a) Schedule 5.18 lists all of the Seller's health insurance plans, bonus plans that are in compliance writing, 401(k) plans, vacation and sick leave policies and compensation plans applicable to a majority of the Seller's employees, directors or officers that are maintained or contributed to by the Seller for the benefit of any current or former employee who performed services for the Business (the "Plans"). The Seller has delivered to the Buyer complete and accurate copies of each of the Plans or a summary plan description thereof. The requirements of ERISA and the Code, as applicable, have been fulfilled in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject with respect to the “at-risk” requirements Plans, including, without limitation, any legally mandated continuation of health care coverage with respect to any "group health plan" (as such term is defined in section 303 Section 607(1) of ERISA and section 430 Section 5000(b)(1) of the Code) as may be required under Part 6 of Title I of ERISA or Section 4980B of the Code. All Plans (other than Multiemployer Plans) intended to meet the requirements for qualification and exemption from taxation under the Code have been determined to be so qualified and no event has occurred nor does any condition exist which would subject the Seller to any penalty, excise tax, or liability with respect to the Plans. Except where as otherwise expressly provided herein, the occurrence Buyer assumes no liability or existenceobligation with respect to, individually and receives no right or in interest in, any of such Plans. (b) Except as set forth on Schedule 5.18, neither the aggregate, is not a Material Adverse Event or, in Seller nor any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability member of the Companies contemplated elsewhere in this Seller's "controlled group" (within the meaning of Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(44971(e)(2)(B) of the Code)) (hereinafter referred to as an "ERISA Affiliate") has, whether or not waived, or with respect to any “accumulated funding deficiency” ("employee benefit plan," as that term is defined in section Section 3(2) of ERISA, ever (i) failed to satisfy the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA (or section 412 the quarterly contribution requirements of Section 412(m) of the CodeCode and Section 302(e) of ERISA), (b) no Company nor any ERISA Affiliate unless the liability with respect thereto has incurred liability under ERISA to the PBGC been discharged in connection with any Employee Plan (other than required insurance premiums, all of which have been paid)full, (cii) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in terminated such a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan which is subject to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, other than in a standard termination or (eiii) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (effected either a "complete withdrawal" or a "partial withdrawal," as those terms are defined in section 406 of ERISA or section 4975 of the Code)Sections 4203 and 4205, and (f) no “reportable event” (as defined in section 4043 respectively, of ERISA) has occurred with respect to an Employee , from any Multiemployer Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations.

Employee Plans. Each Employee Plan is in compliance in all material respects with, As soon as possible and within 30 days after Greenbriar knows or has been administered in compliance with, the applicable provisions reason to know that any event which would constitute a reportable event under Section 4043(b) of ERISA, the Code, and Title IV of ERISA with respect to any employee pension or other applicable law. No Employee Plan is benefit plan of Greenbriar subject to ERISA has occurred, or that the “at-risk” requirements in section 303 PBGC has instituted or will institute proceedings under ERISA to terminate that plan, deliver a certificate of ERISA a Responsible Officer of Greenbriar setting forth details as to that reportable event and section 430 the action which Greenbriar proposes to take with respect to it, together with a copy of any notice of that reportable event which may be required to be filed with the CodePBGC, or any notice delivered by the PBGC evidencing its intent to institute those proceedings or any notice to the PBGC that the plan is to be terminated, as the case may be. For all purposes of this section, Greenbriar is deemed to have all knowledge or knowledge of all facts attributable to the plan administrator under ERISA. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event orEffect, in Greenbriar shall not, and shall not permit any eventSubsidiary to, likely permit (i) any ERISA Plan to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “incur an "accumulated funding deficiency” " (as defined in section Section 302 of ERISA or section Section 412 of the Code), (bii) no Company nor Greenbriar or any ERISA Affiliate has incurred liability Subsidiary to incur liability, except for liabilities for premiums that have been paid or that are not past due, under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid)ERISA Plan, (ciii) no Company nor Greenbriar or any ERISA Affiliate has withdrawn Subsidiary to withdraw in whole or in part from participation in a Multiemployer Plan, (div) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company Greenbriar or any ERISA Affiliate contributes Subsidiary to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged engage in any “"prohibited transaction” " (as defined in section Section 406 of ERISA or section Section 4975 of the Code), and (fv) no “a "reportable event” " (as defined in section Section 4043 of ERISA) has occurred with respect to an Employee Planoccur, excluding events for which the notice requirement is waived under applicable PBGC regulations., (vi) Greenbriar, an Affiliate of Greenbriar or any Subsidiary to have any liability under or be subject to any Lien under ERISA, the Code, or any similar provisions of any Law of Canada or any of its provinces to or on account of any employee benefit plan, program, scheme, or arrangement established or maintained by Greenbriar, an Affiliate of Greenbriar or any Subsidiary or to which Greenbriar, an Affiliate of Greenbriar or any Subsidiary contributes or had an obligation to contribute, (vii) any ERISA Plan not to comply in all material respects, both in

Employee Plans. Each Employee Plan is in compliance in all material respects withExcept as set forth on Schedule 2.10, and has been administered in compliance withas of the date hereof, the applicable provisions of ERISAthere are no employee benefit plans (including without limitation, the Coderetirement, savings, thrift, deferred compensation, severance, stock ownership, stock purchase, stock option, performance, bonus, incentive, vacation or holiday pay, travel, fringe benefit, hospitalization or other medical, disability, life or other insurance, and any other employee benefit policy, trust, understanding or arrangement of any kind) maintained or contributed to by the Company or any Subsidiary or with respect to which the Company or any Subsidiary has any actual or potential liability (the "Employee Plans") except for liabilities that could not reasonably be expected to have a Company Material Adverse Effect. Except for multiemployer plans (as such term is defined in Section 4001(a)(3) of ERISA) (collectively, the "Multiemployer Plans"), the Employee Plans have been administered and operated in all respects in accordance with their terms and are in compliance with applicable law, including without limitation, the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and the Code, except for instances of administration, operation and non-compliance that could not reasonably be expected to have a Company Material Adverse Effect. No Except for Multiemployer Plans, each Employee Plan which is subject intended to be "qualified" within the meaning of Section 401(a) of the Code has received a favorable determination letter for the Internal Revenue Service and, to the “at-risk” requirements in section 303 of ERISA and section 430 knowledge of the Code. Except where the occurrence or existenceCompany, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely no event has occurred and no condition exists which could reasonably be expected to result in a Lien on the assets revocation of any such determination. Except for the Multiemployer Plans, none of the Employee Plans are subject to Title IV of ERISA nor provide for medical or life insurance benefits to retired or former employees of the Company or any Subsidiary (other than as required under Code Section 4980B, or similar state law). Except for the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability Multiemployer Plans, none of the Companies contemplated elsewhere Employee Plans have any material unfunded liabilities which are not disclosed, set forth or reserved for in this Section the Financial Statements (including the notes thereto) as adjusted for operations and transactions through the Closing Date in Section 8.8 accordance with the past custom and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess practice of the Threshold AmountCompany. To the Company's knowledge, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” Company and each person (as defined in section 302 Section 3(9) of ERISA ERISA) which together with the Company or section 412 a Subsidiary would be deemed a "single employer" within the meaning of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paidSection 414(b), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan), (dm) no Company nor any or (o) of the Code (an "ERISA Affiliate, nor any ") have made all contributions to each Multiemployer Plan to which any Company or any ERISA Affiliate contributes collectively bargained agreement, except where the failure to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is make such contributions could not reasonably be expected to behave a Company Material Adverse Effect. To the Company's knowledge, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code), and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations.neither the

Employee Plans. Each Employee Plan is in compliance in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company Neither Seller nor any ERISA Affiliate sponsors, maintains or contributes to, or has incurred liability under ERISA ever sponsored, maintained or contributed to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have or been paidobligated to sponsor maintain or contribute to), any (ci) no Company nor any ERISA Affiliate has withdrawn "multiemployer plan," as defined in whole Sections 3(37) or in part from participation in a Multiemployer Plan4001(a)(3) of ERISA, (dii) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganizationmultiple employer plan, within the meaning of Section 4063 or 4064 of ERISA or Section 413 of the Code, (iii) employee pension plan that is subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA, or (iv) "voluntary employees beneficiary association," as defined in Section 501(c)(9) of the Code. (b) Each Employee Benefit Plan was properly and legally established and at all time since inception has been maintained, administered, operated and funded in all material respects in accordance with its terms and in compliance with all applicable Laws, including, without limitation, ERISA and the Code. Seller, each ERISA Affiliate and each other Person (including, without limitation, each fiduciary) has, at all times and in all material respects, properly performed all of its, his or her duties and obligations (whether arising by operation of Law or by contract) under or with respect to each Employee Benefit Plan, including, without limitation, all reporting, disclosure and notification obligations. Seller has not incurred, and there exists no condition or set of circumstances in connection with which Seller or the Buyer could incur, directly or indirectly, any material liability or expense under ERISA, the Code or any other applicable Law, or pursuant to any indemnification or similar agreement, with respect to any Employee Benefit Plan. (c) Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and its related trust and/or group annuity contract is exempt from taxation under Section 501(a) of the Code. Nothing has occurred, or is reasonably expected by Seller or any ERISA Affiliate to occur, that could adversely affect the qualification or exemption of any such Employee Benefit Plan or its related trust or group annuity contract. (d) Each "group health plan," as defined in Section 607(1) or 733(a)(1) of ERISA or Section 5000(b)(1) of the Code, sponsored, maintained, provided, administered or contributed to by Seller or any ERISA Affiliate is, and at all times since inception has been, maintained, administered and operated in compliance with all applicable requirements of Parts 6 and 7 of Subtitle B of Title I of ERISA, Section 4980B(f), 9801, 9802 and 9803 of the Code and all other applicable laws, statutes, orders, rules and regulations relating to the provision or continuation of health insurance coverage or other welfare benefits (within the meaning of Section 3(1) of ERISA). Seller, each ERISA Affiliate and each other Person has, at all times and in all material respects, properly performed all of his, her or its duties and obligations (whether arising by operation of law or by contract) under or with respect to each such group health plan, including, without limitation, any notification obligations imposed under Parts 6 or 7 of Subtitle B of Title I of ERISA or Section 4980B(f) or 9801(e) of the Code. (e) There are no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” actions, suits or claims (as defined in section 406 other than routine claims for benefits) pending or, to the Knowledge of ERISA or section 4975 of the Code)Seller, and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred threatened with respect to an (or against the assets of) any Employee Benefit Plan, excluding events nor, to the Knowledge of Seller, is there a basis for which any such action, suit or claim. No Employee Benefit Plan is currently under investigation, audit or review, directly or indirectly, by any Governmental Body, and, to the notice requirement Knowledge of Seller, no such action is waived contemplated or under applicable PBGC regulationsconsideration by any Governmental Body.

Employee Plans. (i) The Disclosure Letter lists all material Employee Plans. The Company has included in the Data Room Information true, correct and complete copies of all such material Employee Plans, as amended. Except as set forth in the Disclosure Letter or as required by Law, since January 1, 2014 no commitments to improve or otherwise amend any Employee Plan, or to establish any new Employee Plan, have been made. (ii) Each Employee Plan is in compliance and has been established, registered (where required), qualified, amended, funded, invested and, in all material respects withrespects, administered in accordance with all applicable Laws and in accordance with its terms. No fact exists which could adversely affect the registered status of any such Employee Plan. None of the Company and, as applicable, the Company Subsidiaries and, based on the Company’s knowledge in the case of a Company Investee, nor any delegate or agent of any of them, have breached any fiduciary obligation with respect to the administration or investment of any Employee Plan. (iii) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service with respect to its qualified status under the Code or has pending or has time remaining in which to file an application for such determination or opinion letter, and has been administered in compliance withthere are no facts or circumstances that exist that would, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, reasonably be likely to result give rise to the revocation of such qualified status. (iv) Except as set forth in a Lien on the assets of Disclosure Letter, there are no pension plans (including any Company multi-employer or the Companies securing liability of multi-unit pension plans and any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely plans subject to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 Title IV of ERISA or section Section 412 of the Code)) that are maintained by or binding upon the Company, (b) no any of the Company nor Subsidiaries or any ERISA Affiliate has incurred liability under ERISA or, to the PBGC Company’s knowledge, either Company Investee, or in connection respect of which the Company, any of the Company Subsidiaries or any ERISA Affiliate or, to the Company’s knowledge, either Company Investee, has any actual or potential liability (including withdrawal liability) or contributes or is or was at any time required to contribute. (v) All contributions, premiums, taxes or other amounts required to be made or paid or remitted by the Company or any of the Company Subsidiaries or, to the Company’s knowledge, either of the Company Investees, as the case may be, under the terms of each Employee Plan or by applicable Laws in respect of the Employee Plans have been made in a timely fashion in accordance with applicable Laws and the terms of the applicable Employee Plan. (vi) Except as provided by the terms of a pension plan and except as set forth in the Disclosure Letter, no Employee Plan provides any post-retirement or post-employment benefits to Company Employees, former employees or their dependants or beneficiaries, or, to the Company’s knowledge, current or former employees of a Company Investee or their dependants or beneficiaries. (vii) None of the Company, the Company Subsidiaries or, to the Company’s knowledge, the Company Investees, nor any Employee Plan, is subject to any pending, or to the knowledge of the Company, threatened, material investigation, examination or other proceeding, action, suit or claim initiated by any Governmental Entity or by any other person relating to an Employee Plan (other than routine claims for benefits) and, to the knowledge of the Company, there exists no state of facts which after notice or lapse of time or both would reasonably be expected to give rise to any such investigation, examination or other proceeding, action, suit or claim or to affect the registration or qualification of any Employee Plan required insurance premiumsto be registered or qualified. (viii) To the Company’s knowledge, all employee data necessary to administer each Employee Plan is in the possession of the Company or, in the case of an Employee Plan of a Company Investee, the Company Investee, or its agents, and is in a form which have been paid)is sufficient for the proper administration of the Employee Plan in accordance with its terms and all applicable Laws and such data is complete and correct in all material respects. (ix) Except as expressly contemplated or permitted by this Agreement, or except as set forth in the Disclosure Letter, none of the execution and delivery of this Agreement by the Company or consummation of the Arrangement or compliance by the Company with any of the provisions hereof shall or may (either alone or in conjunction with another event): (A) result in any payment (including severance, retention, unemployment compensation, bonuses or otherwise) becoming due to any current or former director, officer or Company Employee or, to the Company’s knowledge, employees of either of the Company Investees, (cB) no Company nor result in any ERISA Affiliate has withdrawn in whole increase or in part from participation in a Multiemployer acceleration of contributions, liabilities or benefits, or acceleration of the time of payment or vesting, under any Employee Plan, (dC) no Company nor trigger any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code), and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred restriction with respect to the ability to amend or terminate an Employee Plan, excluding events (D) result in the forgiveness of any indebtedness, or (E) result in any payments under any Employee Plan or otherwise that would not be deductible under Section 280G of the Code. (x) Except as set forth in the Disclosure Letter, no Employee Plan has any material liabilities thereunder which are not otherwise fully funded, if applicable, or being funded or secured in accordance with its terms and all applicable Laws and all such liabilities of the Employee Plans are properly accrued and reflected under the Company Financial Statements as of the date thereof. (xi) None of the Company or any of the Company Subsidiaries or, to the Company’s knowledge, either of the Company Investees, has any obligation (current or contingent) to compensate any individual for which excise taxes, interest or penalties paid pursuant to Sections 409A or 4999 of the notice requirement is waived under applicable PBGC regulationsCode.

Employee Plans. Each Employee Plan is Any of the following events shall occur with respect to any Plan: (i) any Person shall engage in compliance any "prohibited transaction" (as defined in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 Section 406 of ERISA and section 430 or Section 4975 of the Code. Except where the occurrence or existence, individually or ) involving any Plan and such "prohibited transaction" could result in the aggregate, is not a Material Adverse Event orChange, (ii) any "accumulated funding deficiency" (as defined in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability Section 412 of the Companies contemplated elsewhere in this Code or Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess 302 of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the CodeERISA), whether or not waived, or shall exist with respect to any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Single Employer Plan, (diii) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed a Reportable Event shall occur with respect to, has received notice concerning the determination that the Multiemployer Plan or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, or is expected in the reasonable opinion of the Required Lenders, likely to be, insolvent or result in reorganization, within the meaning termination of such Plan for purposes of Title IV of ERISA, (eiv) no Company nor a notice of intent to terminate any Single Employer Plan for purposes of Title IV of ERISA Affiliate has engaged is issued by the plan administrator thereof without the prior written consent of the Required Lenders, or the PBGC shall commence proceedings to terminate any Single Employer Plan, (v) any Loan Party or any Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders is likely to, incur any “prohibited transaction” liability in connection with a withdrawal from, or the Insolvency, Reorganization or termination of, a Multiemployer Plan, (as defined in section 406 vi) any Loan Party or any Commonly Controlled Entity shall fail to make any quarterly installment payment to a Pension Plan required under Section 302(e) of ERISA or section 4975 Section 412(m) of the Code), and (fvii) no “reportable event” any Loan Party or any Commonly Controlled Entity shall fail to make any contribution to a Multiemployer Plan which is required under ERISA, the Code or applicable collective bargaining agreements, or (as defined in section 4043 of ERISAviii) has occurred any other event or condition shall occur or exist with respect to an Employee a Plan; and in each case in clauses (i) through (viii) above, excluding such event or condition, together with all other such events for or conditions, if any, could subject any Loan Party (directly or indirectly) to any tax, penalty or other liabilities under Title I or Title IV of ERISA, Section 404 or 419 and Chapter 43 of the IRC or any other applicable law which in the notice requirement is waived under applicable PBGC regulationsaggregate could result in a Material Adverse Change.

Employee Plans. Each Employee Plan is in compliance in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (ai) no Employee Plan or Multiemployer Plan, as applicable, subject to ERISA has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “incurred an "accumulated funding deficiency” " (as defined in section Section 302 of ERISA or section 412 Section 512 of the CodeIRC), (bii) no neither any Company nor any ERISA Affiliate has incurred liability (except for liabilities for premiums that have been paid or that are not past due) under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid)Plan, (ciii) no neither any Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan in a manner that has given rise to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of a withdrawal liability under Title IV of ERISA, (eiv) no neither any Company nor any ERISA Affiliate has engaged in any “"prohibited transaction” " (as defined in section Section 406 of ERISA or section Section 4975 of the CodeIRC), and (fv) no “"reportable event” " (as defined in section Section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulations, (vi) neither any Company nor any ERISA Affiliate has any liability, or is subject FIRST AMENDED AND RESTATED CREDIT AGREEMENT Page 43 AMERICAN NATIONAL BANK and HARRXX XXXK -- ULTRAK OPERATING, L.P. 56 to any Lien, under ERISA or the IRC to or on account of any Employee Plan, (vii) each Employee Plan subject to ERISA and the IRC complies in all material respects, both in form and operation, with ERISA and the IRC and (viii) no Multiemployer Plan subject to the IRC is in reorganization within the meaning of Section 418 of the IRC.

Employee Plans. Each (a) Schedule 3.9 of the Disclosure Schedules sets forth all material Employee Plans. The Seller has made available to the Buyers a true and complete copy of the following documents: (i) each writing constituting an Employee Plan, (ii) the current summary description of each Employee Plan is in compliance and any material modifications thereto and (iii) the most recent determination or opinion letter from the IRS, if any, with respect to any Employee Plan intended to be qualified under Section 401(a) of the Code. (b) With respect to the Employee Plans: (i) each of the Employee Plans has been operated and administered in all material respects within accordance with applicable Law and administrative or governmental rules and regulations, including ERISA and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “atexcept where non-risk” requirements compliance has not resulted in section 303 of ERISA and section 430 of the Code. Except where the occurrence pending or existence, individually threatened claims or in the aggregate, is will not have a Material Adverse Event orEffect, in any eventand (ii) there are no pending or threatened claims by, likely to result in a Lien on the assets behalf of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with against any Employee Plan (other than required insurance premiums, all of which have been paidroutine claims for benefits), . (c) Each Employee Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination or opinion letter as to such qualification from the IRS and, to the Knowledge of the Sellers, no Company event has occurred, either by reason of any action or failure to act, which would cause the loss of any such qualification. (d) None of the Employee Plans is subject to Title IV of ERISA, is a multiemployer plan (within the meaning of Section 3(37) of ERISA) or provides post-employment welfare benefits except to the extent required by Section 4980B of the Code or similar state Law. (e) Neither Seller nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor could become subject to any ERISA Affiliate, nor any Multiemployer Plan to which any Company Liability under Title I or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 that could become a Liability of ERISA Buyers or section 4975 of the Code), and their respective Affiliates. (f) no The consummation of the transactions contemplated by this Agreement, whether alone or together with any other event, will not (i) entitle any Transferred Employee to severance pay, unemployment compensation or any other payment or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any Transferred Employee. (g) With respect to each Employee Plan established or maintained outside of the United States of America primarily for benefit of current or former employees of Sellers or any of their respective subsidiaries residing outside the United States of America (a “reportable event” Foreign Benefit Plan”): (as defined 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, or, if applicable, accrued, in section 4043 accordance with normal accounting practices; (ii) the fair market value of ERISA) has occurred the assets of each funded Foreign Benefit Plan, 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 with respect to 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 Plan 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. (h) All contributions and premiums required by Law or by the terms of any Employee Plan have been timely made to any funds or trusts established thereunder or in connection therewith in all material respects, except for quarterly contributions to the defined benefit pension plan in an Employee Plan, excluding events for which amount not exceeding One Million Dollars ($1,000,000) in the notice requirement is waived under applicable PBGC regulationsaggregate.

Employee Plans. Each Employee Plan is Any of the following events shall occur with respect to any Plan: (i) any Person shall engage in compliance any "prohibited transaction" (as defined in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 Section 406 of ERISA and section 430 or Section 4975 of the Code. Except where the occurrence or existence, individually or ) involving any Plan and such "prohibited transaction" could result in the aggregate, is not a Material Adverse Event orChange, (ii) any "accumulated funding deficiency" (as defined in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability Section 412 of the Companies contemplated elsewhere Code or Section 302 of ERISA) not disclosed in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, Item 7 (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4"Benefit Plans") of the Code)Disclosure Schedule, whether or not waived, or shall exist with respect to any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Single Employer Plan, (diii) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed a Reportable Event shall occur with respect to, has received notice concerning the determination that the Multiemployer Plan or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, or is expected in the reasonable opinion of the Required Lenders, likely to be, insolvent or result in reorganization, within the meaning termination of such Plan for purposes of Title IV of ERISA, (eiv) no Company nor a notice of intent to terminate any Single Employer Plan for purposes of Title IV of ERISA Affiliate has engaged is issued by the plan administrator thereof without the prior written consent of the Required Lenders, or the PBGC shall commence proceedings to terminate any Single Employer Plan, (v) the Borrower or any Commonly Controlled Entity or Subsidiary shall, or in the reasonable opinion of the Required Lenders is likely to, incur any “prohibited transaction” liability in connection with a withdrawal from, or the Insolvency, Reorganization or termination of, a Multiemployer Plan, (as defined in section 406 vi) the Borrower or any Commonly Controlled Entity or Subsidiary shall fail to make any quarterly installment payment to a Pension Plan required under Section 302(e) of ERISA or section 4975 Section 412(m) of the Code), and (fvii) no “reportable event” the Borrower or any Commonly Controlled Entity or Subsidiary shall fail to make any contribution to a Multiemployer Plan which is required under ERISA, the Code or applicable collective bargaining agreements, or (as defined in section 4043 of ERISAviii) has occurred any other event or condition shall occur or exist with respect to an Employee a Plan; and in each case in clauses (i) through (viii) above, excluding such event or condition, together with all other such events for or conditions, if any, could subject the Borrower or any Subsidiary (directly or indirectly) to any tax, penalty or other liabilities under Title I or Title IV of ERISA, Section 404 or 419 and Chapter 43 of the IRC or any other applicable law which in the notice requirement is waived under applicable PBGC regulationsaggregate could result in a Material Adverse Change.

Employee Plans. Each Employee Plan is in compliance in Schedule 4.19 sets out all material respects withthe employee benefit plans, programs and has been administered in compliance witharrangements maintained or contributed to by The Second Cup Ltd., the applicable provisions of ERISAVendor, the CodeCorporation or any of its Subsidiaries for the benefit of any current or former employee, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 officer or director of the CodeCorporation or any of its Subsidiaries (the "Employee Plans"). Except where the occurrence or existenceas set forth in Schedule 4.19 and except as would not, individually or in the aggregate, is not have a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies Effect: (individually or when aggregated with any liability i) none of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that Employee Plans is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, multi-employer plan within the meaning of ERISA; (ii) none of the Employee Plans promises or provides retiree medical or life insurance benefits to any person; (iii) each Employee Plan intended to be qualified under Section 401(a) of the United States Internal Revenue Code of 1986, as amended (the "Code") has received a favourable determination letter from the IRS that it is so qualified and nothing has occurred since the date of such letter that could reasonably be expected to affect the qualified status of such Employee Plan; (iv) each Employee Plan has been operated in all material respects in accordance with its terms and the requirements of applicable law; (v) neither the Corporation nor any Subsidiary has incurred any direct or indirect liability arising out of, by operation of Title IV of ERISAERISA in connection with the termination of, (e) no Company nor or withdrawal from any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code), and (f) no “reportable event” (as defined in section 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events or other retirement plan or arrangement, and no fact or event exist that could reasonably be expected to give rise to any such liability; and (vi) the Corporation and the Subsidiaries have not incurred any liability under, and have complied in all respects with, the WORKER ADJUSTMENT RETRAINING NOTIFICATION ACT ("WARN") and no fact exist that could give rise to liability under such Act. Except as set forth in Schedule 4.19, the aggregate accumulated benefit obligations of each Employee Plan subject to Title IV of ERISA (as at the date of the most recent actuarial valuation prepared for which such Employee Plan) do not exceed the notice requirement is waived under applicable PBGC regulationsfair market value of the assets of such Employee Plan (as at the date of such valuation).

Employee Plans. Each Employee Plan is (a) None of the Target Companies has, or during the past four (4) years has ever had, any employees. (b) As of the date of this Agreement, no Target Company maintains, sponsors, contributes to, participates in, or has any liability (actual or contingent) with respect to any (a) “employee benefit plan,” as defined in compliance in all material respects with, and has been administered in compliance with, the applicable provisions Section 3(3) of ERISA, or (b) employment, severance or similar contract or agreement, arrangement, plan or policy or other plan, program, agreement or arrangement providing any compensation or benefits (including any agreement, arrangement, plan or policy making available bonuses, equity awards, or deferred compensation) ((a) and (b), collectively, “Plans”). There does not now exist, nor, to the Knowledge of Seller, do any circumstances exist that could reasonably be expected following the Closing to result in, any current or contingent liabilities to Buyer or any of its Affiliates with respect to any Plan of Seller, its Affiliates or their respective ERISA Affiliates. (c) No Target Company nor any ERISA Affiliate thereof contributes to, has at any time contributed to or has any liability or obligation, whether fixed or contingent, with respect to (i) any “multiemployer plan” (as defined in Section 3(37) of ERISA), (ii) any single employer plan or other pension plan that is subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code, and (iii) any other applicable law. No Employee Plan is subject to multiple employer plan (within the “at-risk” requirements in section 303 meaning of ERISA and section 430 of the Code. Except where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4413(c) of the Code), whether or not waived, or (iv) any “accumulated funding deficiency” multiple employer welfare arrangement (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Section 3(40) of ERISA). No liability under Title IV of ERISA has been or, to the Knowledge of Seller, is reasonably expected to be incurred by any Target Company. (d) Each ERISA Affiliate of any Target Company which maintains a “group health plan” within the meaning of Section 5000(b)(1) of the Code has complied in all material respects with the notice and continuation requirements of Section 4980B of the Code, COBRA, Part 6 of Subtitle B of Title I of ERISA, . (e) no Company Neither the execution and delivery of this Agreement, nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 the consummation of the Code)transactions contemplated hereby, and either alone or in combination with another event (fwhether contingent or otherwise) no “reportable event” will (as defined in section 4043 i) entitle any current or former Service Provider to any payment; (ii) increase the amount of ERISAcompensation or benefits due to any such Service Provider; or (iii) has occurred with respect to an Employee Planaccelerate the vesting, excluding events for which the notice requirement is waived under applicable PBGC regulationsfunding or time of payment of any compensation, equity award or other benefit.

Employee Plans. Each Employee Plan is Any of the following events shall occur with respect to any Plan: (i) any Person shall engage in compliance any “prohibited transaction” (as defined in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 Section 406 of ERISA and section 430 or Section 4975 of the Code. Except where the occurrence or existence, individually or ) involving any Plan and such “prohibited transaction” could result in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold AmountChange, (aii) no Employee Plan or Multiemployer Plan, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section Section 412 of the CodeCode or Section 302 of ERISA), (b) no Company nor whether or not waived, shall exist with respect to any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Single Employer Plan, (diii) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed a Reportable Event shall occur with respect to, has received notice concerning the determination that the Multiemployer Plan or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, or is expected in the opinion of the Required Lenders, likely to be, insolvent or result in reorganization, within the meaning termination of such Plan for purposes of Title IV of ERISA, (eiv) no Company nor a notice of intent to terminate any Single Employer Plan for purposes of Title IV of ERISA Affiliate has engaged is issued by the plan administrator thereof without the prior written consent of the Required Lenders, or the PBGC shall commence proceedings to terminate any Single Employer Plan, (v) any Loan Party or any Commonly Controlled Entity shall, or in the opinion of the Required Lenders is likely to, incur any “prohibited transaction” liability in connection with a withdrawal from, or the Insolvency, Reorganization or termination of, a Multiemployer Plan, (as defined in section 406 vi) any Loan Party or any Commonly Controlled Entity shall fail to make any quarterly installment payment to a Pension Plan required under Section 302(e) of ERISA or section 4975 Section 412(m) of the Code), and (fvii) no “reportable event” any Loan Party or any Commonly Controlled Entity shall fail to make any contribution to a Multiemployer Plan which is required under ERISA, the Code or applicable collective bargaining agreements, or (as defined in section 4043 of ERISAviii) has occurred any other event or condition shall occur or exist with respect to an Employee a Plan; and in each case in clauses (i) through (viii) above, excluding such event or condition, together with all other such events for or conditions, if any, could subject any Loan Party (directly or indirectly) to any tax, penalty or other liabilities under Title I or Title IV of ERISA, Section 404 or 419 and Chapter 43 of the IRC or any other applicable law which in the notice requirement is waived under applicable PBGC regulationsaggregate could result in a Material Adverse Change.

Employee Plans. Each Employee (a) Parent has provided or made available to the Company or its counsel with respect to each and every material Parent Benefit Plan a true and complete copy of all plan documents, if any, including related trust agreements, funding arrangements, and insurance contracts and all amendments thereto; and, to the extent applicable, (i) the most recent determination letter received by Parent or any of its Subsidiaries from the IRS regarding the tax-qualified status of such Parent Benefit Plan; (ii) the most recent financial statements for such Parent Benefit Plan; (iii) the most recent actuarial valuation report; (iv) the current summary plan description and any summaries of material modifications; and (v) Form 5500 Annual Returns/Reports, together with all schedules thereto, for the most recent plan year. (b) With respect to each Parent Benefit Plan that is a “single-employer plan” (within the meaning of Section 3(41) of ERISA) and is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code (each, a “Title IV Plan”): (i) the minimum funding standards (within the meaning of Sections 412 and 430 of the Code or Section 302 of ERISA) are satisfied, whether or not waived, and no application for a waiver of the minimum funding standard has been submitted to the IRS; (ii) no “reportable event” (within the meaning of Section 4043(c) of ERISA) for which the 30-day notice requirement has not been waived has occurred; (iii) no liability other than for premiums to the Pension Benefit Guarantee Corporation (“PBGC”) under Title IV of ERISA has been or is reasonably expected to be incurred by Parent or any of its ERISA Affiliates, and all premiums to the PBGC have been timely paid in full; (iv) the PBGC has not instituted proceedings to terminate any such plan, and, to the Knowledge of Parent, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such plan; (v) no such plan is currently, or is reasonably expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (vi) the fair market value of the assets and liabilities of such plan has been reported in accordance with GAAP by Parent on the most recent financial statements of Parent; and (vii) neither Parent nor its Subsidiaries have engaged in a “substantial cessation of operations” within the meaning of Section 4062(e) of ERISA, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such event. No Parent Benefit Plan is (i) a “multiemployer plan” as defined in Section 3(37) of ERISA or (ii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA, and none of Parent or any of its ERISA Affiliates has withdrawn at any time within the preceding six years from any multiemployer plan, or incurred any withdrawal liability which remains unsatisfied, and no events have occurred and no circumstances exist that would reasonably be expected to result in any such liability to the Parent or any of its Subsidiaries. (c) With respect to each Parent Benefit Plan that is intended to qualify under Section 401(a) of the Code, such plan, and its related trust, has received, has an application pending or remains within the remedial amendment period for obtaining, a determination letter from the IRS that it is so qualified and that its trust is exempt from Tax under Section 501(a) of the Code, and nothing has occurred with respect to the operation of any such plan which would reasonably be expected to cause the loss of such qualification or exemption or the imposition of any material liability, penalty or Tax under ERISA or the Code. (d) There are no pending or, to the Knowledge of Parent, threatened material actions, claims or lawsuits against or relating to any Parent Benefit Plan or against any fiduciary of any Parent Benefit Plan with respect to the operation of such plan (other than routine benefits claims). (e) Each Parent Benefit Plan has been established and administered in all material respects in accordance with its terms, and in compliance in all material respects with, and has been administered in compliance with, with the applicable provisions of ERISA, the CodeCode and other applicable laws, and all contributions (including all employer contributions and employee salary reduction contributions) required to have been made under any of the Parent Benefit Plans to any funds or trusts established thereunder or in connection therewith have been made or have been accrued and reported on Parent’s financial statements. (f) None of the Parent Benefit Plans provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA or any other applicable lawlaw or at the expense of the participant or the participant’s beneficiary. No Employee Plan is subject to There has been no material violation of the “at-riskcontinuation coverage requirement” requirements of “group health plans” as set forth in section 303 Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA with respect to any Parent Benefit Plan to which such continuation coverage requirements apply. (g) Except as provided in this Agreement, neither the execution and section 430 delivery of this Agreement nor the consummation of the Code. Except where transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase the occurrence amount of any compensation or existencebenefits due, to any current or former employee of Parent and its Subsidiaries or with respect to any Parent Benefit Plan; (ii) increase any benefits otherwise payable under any Parent Benefit Plan; or (iii) result in the acceleration of the time of payment or vesting of any such compensation or benefits. (h) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) result in the payment of any amount that would, individually or in combination with any other such payment, not be deductible as a result of Section 280G of the aggregate, is Code. (i) Except as would not a Material Adverse Event or, in any event, likely reasonably be expected to result in a Lien on the assets of any Company material liability to Parent or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein its Subsidiaries, each Parent Benefit Plan that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, has any a “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiencynonqualified deferred compensation plan” (as defined in section 302 of ERISA or section 412 Section 409A(d)(1) of the Code)) is in documentary compliance with, and has been administered (i) in good faith compliance with Section 409A of the Code for the period beginning October 1, 2004 through December 31, 2008, and (ii) in compliance with Section 409A of the Code since January 1, 2009. (j) With respect to any Parent Equity Award, (a) each grant of a Parent Equity Award was duly authorized no later than the Grant Date by all necessary corporate action, including, as applicable, approval by the Board of Directors of Parent, or a committee thereof, or a duly authorized delegate thereof, and any required approval by the stockholders of Parent by the necessary number of votes or written consents, and the award agreement governing such grant, if any, was duly executed and delivered by each party thereto within a reasonable time following the Grant Date, (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to each such grant was made in accordance with the PBGC in connection with any Employee terms of the applicable Parent Benefit Plan (other than required insurance premiums, all of which have been paidincluding the applicable Parent Stock Plan), the Exchange Act and all other applicable Law, including the rules of the NYSE, and (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation the per share exercise price of each Parent Option and Parent SAR was not less than the fair market value of a share of Parent Common Stock on the applicable Grant Date. (k) Except as would not result in a Multiemployer Planmaterial liability to Parent or its Subsidiaries, all Parent Benefit Plans subject to the laws of any jurisdiction outside of the United States (i) have been maintained in accordance with all applicable requirements, (dii) no Company nor any ERISA Affiliatethat are intended to qualify for special Tax treatment, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code)meet all requirements for such treatment, and (fiii) no “reportable event” (that are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as defined in section 4043 of ERISA) has occurred with respect to an Employee Planappropriate, excluding events for which the notice requirement is waived under applicable PBGC regulationsbased upon reasonable actuarial assumptions.

Employee Plans. Each Employee Plan is in compliance in all material respects with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 of the Code. Except EXCEPT as disclosed on SCHEDULE 7.12 or where the occurrence or existence, individually or in the aggregate, is not a Material Adverse Event or, in any event, likely to result in a Lien on the assets of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability of the Companies contemplated elsewhere in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amount, (a) no Employee Plan or Multiemployer Plan, as applicable, subject to ERISA has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” incurred an "ACCUMULATED FUNDING DEFICIENCY" (as defined in section 302 SECTION 402 of ERISA or section 412 SECTION 512 of the Code), (b) no Company neither Borrower nor any ERISA Affiliate has incurred liability -- EXCEPT for liabilities for premiums that have been paid or that are not past due -- under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, all of which have been paid)Plan, (c) no Company neither Borrower nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan in a manner that has given rise to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title a withdrawal liability under TITLE IV of ERISA, (ed) no Company neither Borrower nor any ERISA Affiliate has engaged in any “prohibited transaction” "PROHIBITED TRANSACTION" (as defined in section SECTION 406 of ERISA or section SECTION 4975 of the Code), and (fe) no “reportable event” "REPORTABLE EVENT" (as defined in section AS DEFINED IN SECTION 4043 of ERISA) has occurred with respect to an Employee Plan, excluding events for which the notice requirement is waived under applicable PBGC regulationsregulations or notice has been timely given, (f) neither Borrower nor any ERISA Affiliate has any liability (excluding any liabilities, contributions, or benefits that are not past due), or is subject to any Lien, under ERISA or the Code to or on account of any Employee Plan, (g) each Employee Plan subject to ERISA and the Code complies in all material respects, both in form and operation, with ERISA and the Code, and (h) no Multiemployer Plan subject to the Code is in reorganization within the meaning of SECTION 418 of the Code. None of the matters disclosed on SCHEDULE 7.12 give rise to any other "REPORTABLE EVENTS," as defined above.

Employee Plans. (a) Section 3.18(a) of the Company Disclosure Schedule contains a correct and complete list of each material Company Benefit Plan. (b) The Company has provided Parent with respect to each material Company Benefit Plan a true and complete copy of all plan documents, if any, including related trust agreements, funding arrangements, and insurance contracts and all amendments thereto. (c) None of the Company or any of its ERISA Affiliates has, at any time during the last six years, maintained or contributed to, or been obligated to maintain or contribute to (i) any plan that is subject to Title IV or Section 302 of ERISA or Section 412 of the Code, (ii) a "multiemployer plan" as defined in Section 3(37) of ERISA (a "Multiemployer Plan"), or (iii) a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA. None of the Company or any of its ERISA Affiliates has withdrawn at any time within the preceding six years from any Multiemployer Plan, or incurred any withdrawal liability which remains unsatisfied, and no events have occurred and no circumstances exist that would reasonably be expected to result in any such liability to the Company or any of its Subsidiaries. (d) With respect to each Company Benefit Plan that is intended to qualify under Section 401(a) of the Code, such plan, and its related trust, has received, has an application pending or remains within the remedial amendment period for obtaining, a determination letter from the IRS that it is so qualified and that its trust is exempt from Tax under Section 501(a) of the Code, or such plan has been adopted under a prototype plan or volume submitter plan approved by the IRS, and nothing has occurred with respect to the operation of any such plan which would reasonably be expected to cause the loss of such qualification or exemption or the imposition of any material liability, penalty or Tax under ERISA or the Code. (e) There are no pending or, to the Knowledge of the Company, threatened material actions, claims or lawsuits against or relating to any Company Benefit Plan or against any fiduciary of any Company Benefit Plan with respect to the operation of such plan (other than routine benefits claims). (f) Each Employee Company Benefit Plan is has been established and administered in all material respects in accordance with its terms, and in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Laws, and all contributions required to have been made under any of the Company Benefit Plans to any funds or trusts established thereunder or in connection therewith have been made or have been accrued and reported on the Company's financial statements. (g) None of the Company Benefit Plans provide retiree health or life insurance benefits except as may be required by Section 4980B of the Code and Section 601 of ERISA or any other applicable Law or at the expense of the participant or the participant's beneficiary. (h) Except as provided in this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby or thereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase the amount of any compensation or benefits due, to any current or former employee of the Company and its Subsidiaries or with respect to any Company Benefit Plan; (ii) increase any benefits otherwise payable under any Company Benefit Plan; (iii) result in the acceleration of the time of payment or vesting of any compensation or benefits; (iv) trigger any payment or funding (through a grantor trust or otherwise) of any compensation or benefits under any Company Benefit Plan; or (v) limit or prohibit the ability to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust. (i) No Company Benefit Plan provides for the gross-up or reimbursement of Taxes under Section 409A or 4999 of the Code, or otherwise. (j) Except as would not reasonably be expected to result in a material liability to Company or its Subsidiaries, each Company Benefit Plan that is a "nonqualified deferred compensation plan" (as defined in Section 409A(d)(1) of the Code) is in documentary compliance with, and has been administered in compliance with, the applicable provisions of ERISA, the Code, and any other applicable law. No Employee Plan is subject to the “at-risk” requirements in section 303 of ERISA and section 430 Section 409A of the Code. . (k) Except where the occurrence or existence, individually or in the aggregate, is as would not a Material Adverse Event or, in any event, likely reasonably be expected to result in a Lien on material liability to the assets Company or its Subsidiaries, all Company Benefit Plans subject to the Laws of any Company or the Companies securing liability of any Company or the Companies (individually or when aggregated with any liability jurisdiction outside of the Companies contemplated elsewhere United States (i) have been maintained in this Section and in Section 8.8 and Section 8.9 herein that is reasonably likely to be secured by Liens) in excess of the Threshold Amountaccordance with all applicable requirements, (aii) no Employee Plan or Multiemployer Planthat are intended to qualify for special Tax treatment, as applicable, has any “unpaid minimum required contribution” (as described in section 4971(c)(4) of the Code), whether or not waived, or any “accumulated funding deficiency” (as defined in section 302 of ERISA or section 412 of the Code), (b) no Company nor any ERISA Affiliate has incurred liability under ERISA to the PBGC in connection with any Employee Plan (other than required insurance premiums, meet all of which have been paid), (c) no Company nor any ERISA Affiliate has withdrawn in whole or in part from participation in a Multiemployer Plan, (d) no Company nor any ERISA Affiliate, nor any Multiemployer Plan to which any Company or any ERISA Affiliate contributes to or has contributed to, has received notice concerning the determination that the Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (e) no Company nor any ERISA Affiliate has engaged in any “prohibited transaction” (as defined in section 406 of ERISA or section 4975 of the Code)requirements for such treatment, and (fiii) no “reportable event” (that are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as defined in section 4043 of ERISA) has occurred with respect to an Employee Planappropriate, excluding events for which the notice requirement is waived under applicable PBGC regulationsbased upon reasonable actuarial assumptions.