Common use of Employees and Employee Benefit Plans Clause in Contracts

Employees and Employee Benefit Plans. (a) Section 4.16 of the Company Disclosure Schedule contains a correct and complete list identifying each “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance or similar Contract, plan or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect to each Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (c) Within the last six (6) years, the Company has not made any contributions to any multiemployer plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such plan. (d) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter that it is so qualified, 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 Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (e) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e) of the Company Disclosure Schedule lists all agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code. (g) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 30, 2006. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (h) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (i) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (j) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations Board; and (iv) there are no grievances or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective bargaining agreement. (k) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Section 4.16 4.17 of the Company Disclosure Schedule Letter contains a correct and complete list identifying each Company Plan. For purposes of this Agreement, “Company Plan” means each material “employee benefit plan,” as defined in Section 3(3) of ERISA, each employmentemployment agreement, severance agreement or similar Contractplan, plan and other plan, program, fund, or policy and each other plan or arrangement (agreement, whether written or oral) unwritten, providing for compensation, bonuses, profit-sharing, stock option or other stock related rights equity compensation or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company Subsidiaries and covers any current or former employee, director or former employee officer or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability, other than a Multiemployer Plan (as defined below). Copies The Company has made available to Parent: (A) copies of such plans (andeach material Company Plan, if applicable, related trust or funding agreements or insurance policies) and all material amendments thereto and written interpretations thereof have been furnished to Parent together with all related trust documents, (B) the most recent annual report (Form 5500 including, if applicable, Schedule B thereto5500) prepared required under ERISA or the Code in connection with any such plan each material Company Plan or related trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect to each Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971the most recent summary plan description, 4972if any, or 4979required under ERISA with respect to each material U.S. Company Plan, or and (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Internal Revenue Service determination or opinion letter issued with respect to each Company Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (c) Within the last six (6) years, the Company has not made any contributions to any multiemployer plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such plan. (d) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter that it is so qualifiedCode. (b) No Company Plan to which the Company, any of its Subsidiaries or any ERISA Affiliate made, or has pending was required to make, contributions during the past six years, is subject to Title IV of ERISA. Neither the Company nor any ERISA Affiliate maintains, contributes to, or sponsors (or has time remaining in which to filethe past six years maintained, an application for such determination from the Internal Revenue Servicecontributed to, and the Company is not aware or sponsored) a multiemployer plan as defined in Section 3(37) of any reason why any such determination letter should be revoked or not be reissued. The Company has made available to Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with ERISA (a “Multiemployer Plan”). (c) With respect to each such Employee Plan. To the knowledge of the Company, each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee PlanCompany Plans, except for failures to comply or violations that have as has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on Effect: (i) each Company Plan intended to qualify under Section 401(a) of the Code has received a determination or opinion letter from the IRS upon which it may rely regarding its qualified status under the Code and, to the Company. To ’s knowledge, no event has occurred that could reasonably be expected to cause the loss of such qualification, (ii) all payments required to be paid by the Company or any of its Subsidiaries pursuant to the terms of a Company Plan or by applicable Law (including, without limitation, all contributions and insurance premiums) with respect to all prior periods have been made or provided for by the Company or its Subsidiaries in accordance with the provisions of such Company Plan or applicable Law, (iii) no proceeding has been threatened, instituted or, to the knowledge of the Company, is anticipated against any of the Company Plans (other than routine claims for benefits and appeals of such claims), any trustee or fiduciaries thereof who the Company has an obligation to indemnify, or any of the assets of any trust of any of the Company Plans, (iv) each Company Plan complies in form and has been maintained and operated in all material respects in accordance with its terms and applicable Law, including, without limitation, ERISA and the Code, (v) no events have non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code and Section 406 of ERISA, has occurred or is reasonably expected to occur with respect to any Employee Plan that could result in payment or assessment by or against the Company Plans, (vi) no Company Plan is under, and neither the Company nor its Subsidiaries has received any notice of, an audit or investigation by the Internal Revenue Service, U.S. Department of Labor, Pension Benefit Guaranty Corporation, or any excise taxes other Governmental Authority, and (vii) no Company Plan provides any post-retirement health and welfare benefits to any current or former employee of the Company or its Subsidiaries, except as required under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 Section 4980B of the Code, except Part 6 of Title I of ERISA (“COBRA”), or as Company paid COBRA coverage as agreed by the Company or as required under any other applicable state or local Law. (d) The consummation of the transactions contemplated by this Agreement will not (either alone or together with any other event) (i) entitle any employee, officer or director of the Company or its Subsidiaries (whether current, former or retired) or their beneficiaries to severance pay, (ii) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under any Company Plan, (iii) increase the amount payable or trigger any other financial obligation pursuant to any Company Plan, or (iv) result in any material amounts payable to any “disqualified individual” failing to be deductible for failures federal income tax purposes by virtue of Section 280G of the Code or subject to comply an excise tax under Section 4999 of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or violations that have otherwise reimburse any current or former employee or director of the Company or any of its Subsidiaries for any Tax incurred by such individual under Section 409A or 4999 of the Code. (e) Except as has not had had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1Effect, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (e) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance paythere are no labor organizational campaigns, bonus amountscorporate campaigns, retirement benefitspetitions, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e) of the Company Disclosure Schedule lists all agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits demands for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code. (g) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 30, 2006. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (h) There is no action, suit, investigation, audit or proceeding pending against or involving recognition or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, other unionization activities seeking recognition of a Material Adverse Effect on the Company. (i) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (j) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations Board; and (iv) there are no grievances or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective bargaining agreement. (k) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of unit at the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in there are no unfair labor practice charges, grievances, arbitrations or other complaints or union matters before the WARN Act)National Labor Relations Board or other labor board of Governmental Authority that would reasonably be expected to affect the employees of the Company and its Subsidiaries; or and (iii) there are no current or, to the knowledge of the Company, threatened strikes, slowdowns, lockouts, organized labor disputes or work stoppages, and no such other transactionstrike, layoffslowdown, reduction in force lockout, organized labor dispute or employment terminations sufficient in number to trigger application work stoppage has occurred within the two years preceding the date of any similar state or local lawthis Agreement.

Employees and Employee Benefit Plans. (a) Section 4.16 5.16 of the Company Disclosure Schedule contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA, each material employment, severance or similar Contract, plan or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form forms of benefits which is are maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto5500) and tax return (Form 990) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect To the Knowledge of the Company, none of the Company’s employees has indicated to each the Company or any of its Subsidiaries that he or she intends to resign or retire as a result of the transactions contemplated by this Agreement. (c) The Company has never made any contributions to any Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participatedERISA, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) and the Company has not withdrawn from any such Employee Plan during a plan been under common control within the six year in period ending on the date hereof, with an employer which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened contributed to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (cd) Within the last six (6) years, the The Company has not never made any contributions to any multiemployer plan Multiemployer Plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not never been under common control with an employer which contributed to any such plan. (de) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is maintained pursuant to a prototype document approved by the Internal Revenue Service, or has received a favorable determination letter that it is so qualified, 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 delivered or Made Available to Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no No events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, Code except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, administered in reasonable good faith compliance accordance with and meets the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, 409A except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. All required contributions with respect to the Employee Plans for all periods ending prior to the Closing Date (including periods from the first day of the current plan year to the Closing Date) will be made prior to the Closing Date by the Company and all Subsidiaries. All required contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code. All insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to the Employee Plans for policy years or other applicable policy periods ending on or before the Closing Date. (ef) Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(e5.16(f) of the Company Disclosure Schedule, with respect to each current or former employee or independent contractor of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there There is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e5.16(f) of the Company Disclosure Schedule lists all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (fg) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code, all of such benefits being set forth on Schedule 5.16(g) of the Company Disclosure Schedule. (gh) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year period ended December 30on the Company Balance Sheet Date, 2006. Except with respect to agreements, arrangements or other instruments listed on except as set forth in Section 4.16(g5.16(h) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (hi) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge Knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyAuthority. (ij) Neither the Company nor any of its ERISA Affiliates maintain any Employee Plan or other benefit arrangement covering any employee or former employee outside of the United States nor has ever been obligated to contribute to any such plan. (k) The Company and its Subsidiaries have acted in good faith and complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (jl) Except as set forth in Section 4.16(j5.16(l) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been been, to the Knowledge of the Company, any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: , (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, or threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations BoardBoard and there are no questions concerning representation with respect to the employees of the Company or its Subsidiaries; and (iv) there are no grievances grievance or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective collection bargaining agreement. (km) Except as set forth on Section 4.16(k) of Since the Company Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: effectuated (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Except as set forth at Section 4.16 5.14(a) of the Company OLYMPIC Disclosure Schedule contains a correct and complete list identifying each “Schedule, neither OLYMPIC nor any Subsidiary of OLYMPIC has entered into any employment contract or arrangement with any director, officer, employee benefit plan,” or any other consultant or Person (i) which is not terminable by it at will without liability, except as defined the right of OLYMPIC or such Subsidiary to terminate its employees at will may be limited by applicable federal, state or foreign law, or (ii) under which OLYMPIC or any Subsidiary of OLYMPIC could have any material liability (collectively, the "OLYMPIC Employment Agreements"). (b) Except as set forth in Section 3(35.14(b) of ERISAthe OLYMPIC Disclosure Schedule, neither OLYMPIC nor any Subsidiary maintains any Employee Plans. (c) OLYMPIC has made available to FMFK true, complete and correct copies of (i) each employmentOLYMPIC Employment Agreement, severance or similar Contract(ii) each Employee Plan (or, plan or policy and each other plan or arrangement (written or oral) providing for compensationin the case of any unwritten Employee Plans, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangementsdescriptions thereof), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefitsiii) or other form of benefits which is maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (on Form 5500 including, if applicable, Schedule B thereto) prepared in connection filed with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With IRS with respect to each Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(nsuch report was required), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any most recent summary plan description for each Employee Plan for which such Employee Plan; summary plan description is required, (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee each trust agreement and group annuity contract relating to administer, any such Employee Plan; , (vi) all required premium payments to the PBGC have been paid when due; each determination letter and any outstanding request for a determination letter, and (vii) no “reportable event” (as described all correspondence with the IRS or the United States Department of Labor relating to any outstanding controversy or audit. Each Employee Plan complies in all material respects with applicable laws, including, without limitation, ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (c) Within the last six (6) years, the Company has not made any contributions to any multiemployer plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such planCode. (d) Each Employee Plan which has been maintained, funded, operated and administered in compliance in all material respects with all applicable laws and regulations, including but not limited to, ERISA, the Code, and the Health Insurance Portability and Accountability Act of 1996. Each Employee Plan that is intended to be qualified under Section section 401(a) of the Code and each trust forming a part thereof that is intended to be exempt from taxation under section 501(a) of the Code has received a favorable determination letter that it is so qualified, or has pending or has time remaining in which to file, an application for such determination from the Internal Revenue ServiceIRS as to its qualification and tax-exempt status and nothing has occurred, and whether by any action or any failure to act, since the Company is not aware date of any reason why any such determination letter should that could adversely affect the qualification of such Employee Plan or the tax-exempt status of such related trust. No event has occurred and, to the Knowledge of OLYMPIC, there currently exists no condition or set of circumstances in connection with OLYMPIC that could reasonably be revoked or not expected to be reissued. The Company has made available subject to Parent prior to date any liability under the terms of this Agreement copies any Employee Plans (other than for benefits payable in the normal course of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge operations of the CompanyEmployee Plans), each ERISA, the Code or any other applicable law, including any liability under Title IV of ERISA. Each Employee Plan has been maintained can be amended or terminated in substantial compliance accordance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including applicable law without any material liability to OLYMPIC or any of its Subsidiaries. No Employee Plan is a "multiemployer plan" as defined in section 3(37) of ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 414(f) of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or a "multiple employer plan" as described in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements section 4063(a) of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and 413 of the Code, except for failures and none of OLYMPIC, any of its Subsidiaries or any ERISA Affiliate has ever contributed or had an obligation to comply contribute to any multiemployer plan or violations any plan subject to Title IV of ERISA. For purposes of this Section 5.14(d), an "ERISA Affiliate" is any organization that have not had is a member of the controlled group of organizations of FMFK and would not reasonably be expected to haveits Subsidiaries (within the meaning of sections 414(b), individually (c), (m) or in (o) of the aggregate, a Material Adverse Effect on the CompanyCode). (e) Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(e5.14(e) of the Company OLYMPIC Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will notno current or former director, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options officer or other equity-based awardsemployee of, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreementsconsultant to, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company OLYMPIC or any of its Subsidiaries thatwill become entitled to any retirement, individually severance or collectively, could give rise similar benefit or enhanced or accelerated benefit (including any acceleration of vesting or lapse of repurchase rights or obligations with respect to the payment any employee stock option or other benefit under any stock option plan or compensation plan or arrangement of any amount that would not be deductible pursuant to the terms of Section 280G or 162(mOLYMPIC) of the Code. Section 4.16(e) of the Company Disclosure Schedule lists all agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreementhereby. (f) Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(f5.14(f) of the Company OLYMPIC Disclosure Schedule, neither the Company nor no Employee Plan provides post-retirement health and medical, life or other insurance benefits for retired employees of OLYMPIC or any of its Subsidiaries has any liability (other than benefit coverage mandated by applicable statute, including benefits provided pursuant to COBRA). The unfunded post retirement benefit obligation (determined as of December 31, 2003 in respect accordance with United States Financial Accounting Standards Board Statement No. 106) of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or OLYMPIC and its Subsidiaries except as required with respect to avoid excise tax under Section 4980B all post retirement benefits of their current and former employees equals the Codeamount set forth in OLYMPIC Balance Sheet. (g) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company OLYMPIC or any of its Affiliates affiliates relating to, or change in employee participation or coverage under, an any Employee Plan which that would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year twelve (12) months ended December 30, 2006. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (h) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (i) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (j) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations Board; and (iv) there are no grievances or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective bargaining agreement. (k) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since the OLYMPIC Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Section 4.16 5.16 of the Company Disclosure Schedule Letter contains a correct and complete list identifying each “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance or similar Contract, plan or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any current or former employee, director or former employee independent contractor or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished made available to Parent together with the three most recent annual report reports (Form 5500 including, if applicable, Schedule B thereto) and Tax Returns (Form 990) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect Except as disclosed in Section 5.16(b) of the Company Disclosure Letter, none of Xxxxx Xxxxxx, Xxxxxx Xxxxxxxx or the Company’s officers has indicated to each the Company or any of its Subsidiaries that he or she intends to resign or retire as a result of the transactions contemplated by this Agreement or otherwise within one year after the Effective Time. (c) The Company has never made any contributions to any Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (c) Within the last six (6) yearsERISA, the Company has not made never been a member of a controlled group which contributed to any such Plan, and the Company has never been under common control with an employer which contributed to any such Plan. (d) The Company has never made, nor has it been obligated to make, any contributions to any multiemployer multiemployer-employer plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not never been a member of a controlled group which contributed to or was obligated to contribute to any such plan, and the Company has not never been under common control with an employer which contributed to or was obligated to contribute to any such plan. (de) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter that it is so qualified, 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 or opinion letter should be revoked or not be reissued. The Company has made available to Parent prior to the date of this Agreement copies of the most recent Internal Revenue Service determination letters and opinion letters with respect to each such Employee Plan. To the knowledge of the Company, each Each Employee Plan has been maintained in substantial compliance in all material respects with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no No events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” (as defined in Code Section 409A 409A) has been operated since January 1, 2005, administered in reasonable good faith compliance accordance with and meets the requirements of Code Section 409A. 409A and has been amended prior to the Effective Time to the extent necessary to incorporate the requirements of Code Section 409A and the regulations issued thereunder. Neither the Company nor any of its Subsidiaries is a party to or has any liability under a Contract, whether oral or written, to any Person for the indemnification by the Company or any of its Subsidiaries for any liability relating to or arising from noncompliance with Code Section 409A and the regulations thereunder. All contributions with respect to the Employee Plans for all periods ending prior to the Effective Time (including periods from the first day of the current plan year to the Effective Time) will be made prior to the Effective Time by the Company and all Subsidiaries in accordance with past practice and the recommended contribution in the applicable actuarial report. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code. All insurance premiums have been paid in full, except for failures subject only to comply or violations that have not had and would not reasonably be expected to have, individually or normal retrospective adjustments in the aggregateordinary course, a Material Adverse Effect with regard to the Employee Plans for policy years or other applicable policy periods ending on or before the CompanyEffective Time. (ef) Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(e5.16(f) of the Company Disclosure ScheduleLetter, with respect to each current or former employee or independent contractor or director of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or ), (iv) trigger any other material obligation to any such person. Except with respect person or (v) give rise to agreementsan obligation to make or set aside amounts payable to or on behalf of any such person under any agreement, arrangements arrangement or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there instrument. There is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or Section 162(m) of the Code. Section 4.16(e5.16(f) of the Company Disclosure Schedule lists Letter also lists (i) all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of any subsequent employment termination (whether by the Company or the officer) and (ii) the maximum aggregate amounts payable to each current or former key employee, independent contractor or director of the Company or any of its Subsidiaries pursuant to a contractual change in control, severance or employment agreement between the Company or Subsidiary and such current or former key employee, independent contractor or director as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true . True and complete copies of which all Contracts and plans set forth on Section 5.16(f) of the Company Disclosure Letter have been provided made available to Parent prior to the date of this Agreement. (fg) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B of the CodeCode or similar Applicable Law. (gh) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 30, 2006. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of since the Company Disclosure Schedule, no Balance Sheet Date. No condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (hi) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyAuthority. (ij) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (jk) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and to the knowledge of the Company there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: , (i) there are no material unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; , (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries; , (iii) there are no representation claims or petitions pending before the National Labor Relations Board; , and (iv) there are no grievances grievance or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective collection bargaining agreement. (kl) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: effectuated (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; , (ii) a “mass layoff” (as defined in the WARN Act); , or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Section 4.16 of the Company Disclosure Schedule contains a correct and complete list identifying each “employee benefit plan,” Except as defined set forth in Section 3(34.14(a) of ERISAFMFK Disclosure Schedule, each employment, severance or similar Contract, plan or policy and each other plan neither FMFK nor any Subsidiary of FMFK has entered into any employment contract or arrangement with any director, officer, employee or any other consultant or Person (written i) which is not terminable by it at will without liability, except as the right of FMFK or oralsuch Subsidiary to terminate its employees at will may be limited by applicable federal, state or foreign law, or (ii) providing for compensationunder which FMFK or any Subsidiary of FMFK could have any material liability (collectively, bonusesthe "FMFK Employment Agreements"). (b) Except as set forth in Section 4.14(b) of FMFK Disclosure Schedule, profit-sharing, stock option or other stock related rights or other forms neither FMFK nor any Subsidiary of incentive or FMFK maintains any deferred compensation, vacation benefitspension, insurance (including any self-insured arrangements)health, health or medical benefitsprofit sharing, employee assistance programbonus, disability or sick leave benefitsstock purchase, stock option, fringe benefit, hospitalization, insurance, severance, change in control, retention, workers’ ' compensation, supplemental unemployment benefits, severance benefits and post-employment vacation benefits, disability benefits, or retirement benefits any other employee benefit plan (including compensationas defined in the Employee Retirement Income Security Act of 1974, pension, health, medical or life insurance benefitsas amended ("ERISA") or other form of benefits which is maintained, administered otherwise) or contributed to by the Company welfare benefit plan or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or obligation covering any of its Subsidiariescurrent or former officers, directors, employees or with respect consultants ("Employee Plans"). (c) FMFK has made available to which OLYMPIC true, complete and correct copies of (i) each FMFK Employment Agreement, (ii) each Employee Plan (or, in the Company or case of any of its Subsidiaries has any liability. Copies of such plans unwritten Employee Plans, descriptions thereof), (and, if applicable, related trust or funding agreements or insurance policiesiii) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (on Form 5500 including, if applicable, Schedule B thereto) prepared in connection filed with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With IRS with respect to each Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(nsuch report was required), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any most recent summary plan description for each Employee Plan for which such Employee Plan; summary plan description is required, (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee each trust agreement and group annuity contract relating to administer, any such Employee Plan; , (vi) all required premium payments to the PBGC have been paid when due; each determination letter and any outstanding request for a determination letter, and (vii) no “reportable event” (as described all correspondence with the IRS or the United States Department of Labor relating to any outstanding controversy or audit. Each Employee Plan complies in all material respects with applicable laws, including, without limitation, ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (c) Within the last six (6) years, the Company has not made any contributions to any multiemployer plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such planCode. (d) Each Employee Plan which has been maintained, funded, operated and administered in compliance in all material respects with all applicable laws and regulations, including but not limited to, ERISA, the Code, and the Health Insurance Portability and Accountability Act of 1996. Each Employee Plan that is intended to be qualified under section 401(a) of the Code and each trust forming a part thereof that is intended to be exempt from taxation under Section 401(a501(a) of the Code has received a favorable determination letter that it is so qualified, or has pending or has time remaining in which to file, an application for such determination from the Internal Revenue ServiceIRS as to its qualification and tax-exempt status and nothing has occurred, and whether by any action or any failure to act, since the Company is not aware date of any reason why any such determination letter should that could adversely affect the qualification of such Employee Plan or the tax-exempt status of such related trust. No event has occurred and, to the Knowledge of FMFK, there currently exists no condition or set of circumstances in connection with which FMFK that could reasonably be revoked or not expected to be reissued. The Company has made available subject to Parent prior to date any liability under the terms of this Agreement copies any Employee Plans (other than for benefits payable in the normal course of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge operations of the CompanyEmployee Plans), each ERISA, the Code or any other applicable law, including any liability under Title IV of ERISA. Each Employee Plan has been maintained can be amended or terminated in substantial compliance accordance with its terms and with any applicable law without any material liability to FMFK or any of its Subsidiaries. No Employee Plan is a "multiemployer plan" as defined in section 3(37) of the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 414(f) of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or a "multiple employer plan" as described in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements section 4063(a) of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and 413 of the Code, except for failures and none of FMFK, any of its Subsidiaries or any ERISA Affiliate has ever contributed or had an obligation to comply contribute to any multiemployer plan or violations any plan subject to Title IV of ERISA. For purposes of this Section 4.14, an "ERISA Affiliate" is any organization that have not had is a member of the controlled group of organizations of FMFK and would not reasonably be expected to haveits Subsidiaries (within the meaning of sections 414(b), individually (c), (m) or in (o) of the aggregate, a Material Adverse Effect on the CompanyCode). (e) Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(e4.14(e) of the Company FMFK Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will notno current or former director, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options officer or other equity-based awardsemployee of, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreementsconsultant to, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company FMFK or any of its Subsidiaries thatwill become entitled to any retirement, individually severance or collectively, could give rise similar benefit or enhanced or accelerated benefit (including any acceleration of vesting or lapse of repurchase rights or obligations with respect to the payment any employee stock option or other benefit under any stock option plan or compensation plan or arrangement of any amount that would not be deductible pursuant to the terms of Section 280G or 162(mFMFK) of the Code. Section 4.16(e) of the Company Disclosure Schedule lists all agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreementhereby. (f) Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(f4.14(f) of the Company FMFK Disclosure Schedule, neither the Company nor no Employee Plan provides post-retirement health and medical, life or other insurance benefits for retired employees of FMFK or any of its Subsidiaries has any liability (other than benefit coverage mandated by applicable statute, including benefits provided pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as codified in respect Code section 4980B and ERISA sections 601 et seq., as amended from time to time ("COBRA")). The unfunded post retirement benefit obligation (determined as of post-retirement healthDecember 31, medical or life insurance benefits for retired, former or current employees 2003 in accordance with United States Financial Accounting Standards Board Statement No. 106) of the Company or FMFK and its Subsidiaries except as required with respect to avoid excise tax under Section 4980B all post retirement benefits of their current and former employees equals the Codeamount set forth in FMFK Balance Sheet. (g) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company FMFK or any of its Affiliates affiliates relating to, or change in employee participation or coverage under, an any Employee Plan which that would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year twelve (12) months ended December 30, 2006. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (h) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (i) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (j) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations Board; and (iv) there are no grievances or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective bargaining agreement. (k) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since the FMFK Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Except as set forth at Section 4.16 of the Company Disclosure Schedule contains a correct and complete list identifying each “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance or similar Contract, plan or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect to each Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (c) Within the last six (6) years, the Company has not made any contributions to any multiemployer plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such plan. (d) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter that it is so qualified, 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 Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (e) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e) of the Company Disclosure Schedule lists all agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f4.14(a) of the Company Disclosure Schedule, neither the Company nor any Subsidiary has entered into any employment contract or arrangement with any director, officer, employee or any other consultant or Person (i) which is not terminable by it at will without liability, except as the right of the Company or such Subsidiary to terminate its employees at will may be limited by applicable federal, state or foreign law, or (ii) under which the Company or any Subsidiary could have any material liability (collectively, the “Company Employment Agreements”). (b) Except as set forth in Section 4.14(b) of the Company Disclosure Schedule, neither the Company nor any Subsidiary maintains any deferred compensation, pension, health, profit sharing, bonus, stock purchase, stock option, fringe benefit, hospitalization, insurance, severance, change in control, retention, supplemental unemployment benefits, vacation benefits, disability benefits, or any other employee benefit plan (as defined in the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) covering any of its current or former officers, directors, employees or consultants (“Employee Plans”). (c) The Company has made available to Parent true, complete and correct copies of (i) each Company Employment Agreement, (ii) each Employee Plan (or, in the case of any unwritten Employee Plans, descriptions thereof), (iii) the most recent annual report on Form 5500 filed with the IRS with respect to each Employee Plan (if any such report was required), (iv) the most recent summary plan description for each Employee Plan for which such summary plan description is required, (v) each trust agreement and group annuity contract relating to any Employee Plan, (vi) each determination letter and any outstanding request for a determination letter, and (vii) all correspondence with the IRS or the United States Department of Labor relating to any outstanding controversy or audit. (d) Each Employee Plan has been maintained, funded, operated and administered in compliance in all material respects with all applicable laws and regulations, including but not limited to, ERISA, the Code, and the Health Insurance Portability and Accountability Act of 1996. Each Employee Plan that is intended to be qualified under section 401(a) of the Code and each trust forming a part thereof that is intended to be exempt from taxation under section 501(a) of the Code has received a favorable determination letter from the IRS as to its qualification and tax-exempt status (or, where there is no determination letter but the Employee Plan is based upon a master and prototype or volume submitter form, the sponsor of such form has received a current advisory opinion as to the form upon which the Company is entitled to rely under applicable IRS procedures), and nothing has occurred, whether by any action or any failure to act, since the date of such determination letter that could adversely affect the qualification of such Employee Plan or the tax-exempt status of such related trust. No event has occurred and, to the Knowledge of the Company, there currently exists no condition or set of circumstances in connection with which the Company could reasonably be expected to be subject to any liability under the terms of any Employee Plans (other than for benefits payable in the normal course of the operations of the Employee Plans), ERISA, the Code or any other applicable law, including any liability under Title IV of ERISA. Each Employee Plan can be amended or terminated in accordance with its terms and any applicable law without any material liability to the Company or any of its Subsidiaries (excluding administrative expenses). No Employee Plan is a “multiemployer plan” as defined in section 3(37) of the ERISA and 414(f) of the Code, or a “multiple employer plan” as described in section 4063(a) of ERISA and 413 of the Code, and none of the Company, any of its Subsidiaries or any ERISA Affiliate has ever contributed or had an obligation to contribute to any liability multiemployer plan or any plan subject to Title IV of ERISA. For purposes of this Section 4.14, an “ERISA Affiliate” is any organization that is a member of the controlled group of organizations of the Company and its Subsidiaries (within the meaning of sections 414(b), (c), (m) or (o) of the Code). (e) Except as set forth in Section 4.14(e) of the Company Disclosure Schedule, no current or former director, officer or other employee of, or consultant to, the Company or any of its Subsidiaries will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit (including any acceleration of vesting or lapse of repurchase rights or obligations with respect to any employee stock option or other benefit under any stock option plan or compensation plan or arrangement of the Company) as a result of the transactions contemplated hereby. (f) Except as set forth in Section 4.14(f) of the Company Disclosure Schedule, no Employee Plan provides post-retirement healthhealth and medical, medical life or life other insurance benefits for retired, former or current retired employees of the Company or any of its Subsidiaries except (other than benefit coverage mandated by applicable statute, including benefits provided pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as required codified in Code section 4980B and ERISA sections 601 et seq., as amended from time to avoid excise tax under Section 4980B of the Codetime (“COBRA”)). (g) There Except as required by applicable law, there has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates affiliates relating to, or change in employee participation or coverage under, an any Employee Plan which that would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year twelve (12) months ended December 30, 2006. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (h) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (i) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (j) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations Board; and (iv) there are no grievances or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective bargaining agreement. (k) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Section 4.16 5.17 of the Company Disclosure Schedule contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA, each material employment, severance or similar Contract, plan or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form forms of benefits which is are maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) and tax return (Form 990) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect To the knowledge of the Company, none of the Company’s employees at the level of Managing Director or higher has indicated to each the Company or any of its Subsidiaries that he or she intends to resign or retire as a result of the transactions contemplated by this Agreement. (c) The Company has never made any contributions to any Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (c) Within the last six (6) yearsERISA, the Company has not never been a member of a controlled group which contributed to any such Plan, and the Company has never been under common control with an employer which contributed to any such Plan. (d) The Company has never made any contributions to any multiemployer plan Multiemployer Plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not never been a member of a controlled group which contributed to any such plan, and the Company has not never been under common control with an employer which contributed to any such plan. (de) During the six year period ending on the Closing Date, neither the Company nor any of its ERISA Affiliates has terminated or taken action to terminate, in part or in whole, any employee benefit plan, as defined in ERISA Section 3(3). (f) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter that it is so qualified, 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 Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no No events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, Code except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, administered in reasonable good faith compliance accordance with and meets the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, 409A except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. All contributions with respect to the Employee Plans for all periods ending prior to the Closing Date (including periods from the first day of the current plan year to the Closing Date) will be made prior to the Closing Date by the Company and all Subsidiaries in accordance with past practice and the recommended contribution in the applicable actuarial report. All contributions to the Plans have been made on a timely basis in accordance with ERISA and the Code. All insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to the Employee Plans for policy years or other applicable policy periods ending on or before the Closing Date. (eg) Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(e5.17(g) of the Company Disclosure Schedule, with respect to each current or former employee or independent contractor of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there There is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e5.17(g) of the Company Disclosure Schedule lists all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (fh) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code. (gi) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 3031, 2006. Except with respect to agreements2009, arrangements or other instruments listed on except as set forth in Section 4.16(g5.17(g) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (hj) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyAuthority. (ik) Neither the Company nor any of its ERISA Affiliates maintain any Employee Plan or other benefit arrangement covering any employee or former employee outside of the United States nor has ever been obligated to contribute to any such plan. (l) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (jm) Except as set forth in Section 4.16(j5.17(m) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: , (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, or threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations BoardBoard and there are no questions concerning representation with respect to the employees of the Company or its Subsidiaries; and (iv) there are no grievances grievance or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective collection bargaining agreement. (kn) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: effectuated (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Section 4.16 of the Company Disclosure Schedule contains a correct and complete list identifying each “employee benefit plan,” as defined in Section 3(3) of ERISA (whether or not subject to ERISA), each employment, severance or similar ContractContract with the Company’s executive officers, plan directors, employees, or policy independent contractors, and each other plan plan, policy, agreement or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director current or former executive officer, director, employee or director independent contractor of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and summary plan descriptions and written interpretations thereof have been furnished to Parent together with the two most recent annual report reports (Form 5500 including, if applicable, Schedule B thereto) and tax returns (Form 990) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect Neither the Company nor any ERISA Affiliate of the Company nor any predecessor thereof sponsors, maintains or contributes to, or has within six years prior to each the date hereof sponsored, maintained or contributed to, any Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participatedERISA, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972of ERISA, or 4979Sections 412 or 4971 of the Code, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Multiemployer Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (c) Within the last six (6) years, the Company has not made any contributions to any multiemployer plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such plan. (d) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code utilizes a volume submitter pre-approved plan for which the volume submitter sponsor has received a favorable determination opinion letter that it the volume submitter document is so qualified, 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 Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Each Employee Plan has been maintained maintained, operated and administered in substantial compliance with its terms and with terms, the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, and the terms of any collective bargaining agreement which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no No events have occurred with respect to any Employee Plan that could reasonably be expected to result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (ed) Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(e4.16(d) of the Company Disclosure Schedule, with respect to each current or former employee or independent contractor of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(e4.16(d) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e4.16(d) of the Company Disclosure Schedule lists (i) all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or (either alone or in connection with any subsequent employment termination (termination, whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this AgreementAgreement and (ii) the maximum aggregate amounts so payable to each such individual as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer). (fe) Except with respect to agreements, arrangements or other instruments listed as set forth on Section 4.16(f4.16(e) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code. (gf) There Except as set forth on Section 4.16(f) of the Company Disclosure Schedule, there has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would materially increase materially the annual expense of maintaining such Employee Plan above the level of the annual expense incurred in respect thereof for the fiscal year ended December 30June 27, 20062010. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no No condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (hg) There is are no action, suit, investigation, audit or proceeding Actions pending against or involving or, to the knowledge of the Company, threatened on behalf of or against any Employee Plan, the assets of any trust under any Employee Plan, or involvingthe plan sponsor, plan administrator or any fiduciary of any Employee Plan before any Governmental Authority that has had or would could reasonably be expected to haveresult in a Material Adverse Effect on the Company. No event has occurred and there currently exists no condition or set of circumstances in connection with which the Company or any of its Subsidiaries could be subject to any liability (other than routine claims for benefits) under the terms of any Employee Plan, individually ERISA, the Code or any other applicable Law that could reasonably be expected to result in the aggregate, a Material Adverse Effect on the Company. (ih) The Company No fiduciary or party in interest of any Employee Plan has participated in, engaged in or been a party to any transaction that is prohibited under Section 4975 of the Code or Section 406 of ERISA and its Subsidiaries have complied with all Applicable Laws relating to labor and employmentnot exempt under Section 4975 of the Code or Section 408 of ERISA, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxesrespectively, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not could reasonably be expected to haveresult in any material liability to the Company. With respect to any Employee Plan, individually (i) neither the Company nor any of its ERISA Affiliates has had asserted against it any claim for Taxes under Chapter 43 of Subtitle D of the Code and Section 5000 of the Code, or for penalties under ERISA Section 502(c), 502(i) or 502 (l), nor, to the knowledge of the Company, is there a basis for any such claim that could reasonably be expected to result in any material liability to the aggregateCompany, and (ii) no officer, director or employee of the Company or any Subsidiary has committed a Material Adverse Effect on breach of any fiduciary responsibility or obligation imposed by Title I of ERISA that could reasonably be expected to result in any material liability to the Company. (ji) Except as set forth in Section 4.16(j4.16(i) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and to the knowledge of the Company, there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: , (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations BoardBoard with respect to the employees of the Company or its Subsidiaries; and (iv) there are no grievances grievance or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collection bargaining agreement and (v) there are no discrimination charges or complaints pending before the Equal Employment Opportunity Commission or any other Governmental Authority or arbitrator. (j) The Company and its Subsidiaries are and during the past four years have been in compliance in all material respects with all Applicable Laws relating to labor and employment, including, but not limited to, those relating to wages, hours, collective bargaining agreementbargaining, unemployment compensation, worker’s compensation, occupational safety and health, discrimination, immigration, employee classification, information privacy and security, payment and withholding of taxes and continuation coverage with respect to group health plans. (k) To the knowledge of the Company, no current employee or officer of the Company or any of its Subsidiaries intends, or is expected, to terminate his employment relationship with such entity following the consummation of the transactions contemplated hereby. (l) Except as set forth on in Section 4.16(k4.16(l) of the Company Disclosure Schedule, since there is no Action pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries relating to any labor or employment matter. (m) Schedule 4.16(m) of the Company Disclosure Schedule contains a complete and accurate list of all employees of the Company or its Subsidiaries as of the date hereof whose base salary exceeds $100,000 (the “Company Employees”) showing for each Company Employee, the name, job title, location, date of hire, whether each individual is treated as exempt or non-exempt, annual salary or wages as of the date hereof and aggregate annual compensation (including bonus information) for the year ended December 31, 2010. (n) Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: effectuated (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Section 4.16 4.17(a) of the Company Disclosure Schedule contains a correct Letter sets forth an accurate and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA, each material employment, severance or similar Contract, plan or policy Contract and each other plan or arrangement (written or oral) providing for compensation, bonuses, commission, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and benefits, change of control payments, post-employment or retirement benefits and other time-off benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the any Acquired Company or any ERISA Affiliate of the Company and covers any employee, director employee or former employee or director of the Company or any of its SubsidiariesAcquired Company, or with respect to which the such Acquired Company or any of its Subsidiaries has any liability. Copies of such , other than governmentally administered plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan or trustplans mandated by Applicable Law. Such plans are referred to collectively herein as the “Employee Plans.”” Except as set forth in Section 4.17(a) of the Company Disclosure Letter, there are no stock option, restricted stock or other stock related Employee Plans other than the Company Stock Plans. (b) With No Acquired Company or any ERISA Affiliate (nor any predecessor thereof) maintains, contributes to, or has any obligation with respect to, or has in the preceding six years maintained, contributed to, or had any obligation with respect to each Employee Plan which is any pension plan subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurredor Section 430 of the Code, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n)multiemployer plan, (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv3(37) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Plan; (v4001(a)(3) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination ofof ERISA, or the appointment of a trustee to administermultiple employer plan, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)413(c) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation dateCode, the then current value or a multiple employer welfare arrangement, as defined in Section 3(40) of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be usedERISA. (c) Within the last six (6) years, the Company Except as has not made had and would not reasonably be expected to have, individually or in the aggregate a Company Material Adverse Effect, each Acquired Company (i) has performed all obligations required to be performed by such Acquired Company under each Employee Plan established or maintained for the benefit of any contributions employee or service provider (or former employee or service provider) who performs services in the United States of America (the “U.S. Employee Plans”) and (ii) is not in default with respect to or in violation of, and has no Knowledge of any multiemployer plan (default or violation by any other party to, any U.S. Employee Plan. Except as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not had and would not reasonably be expected to have, individually or in the aggregate a Company Material Adverse Effect, each U.S. Employee Plan has been a member of a controlled group which contributed to any such planestablished and maintained in accordance with its terms and in compliance with Applicable Law, including ERISA and the Company has not been under common control with an employer which contributed to any such plan. (d) Code. Each U.S. Employee Plan which that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter (or, in the case of an Employee Plan that it is so qualifiedmaintained pursuant to the adoption of a master or prototype or volume submitter plan document, the sponsor of the master or prototype or volume submitter document has obtained from the IRS an opinion letter to the effect that the form of such document is acceptable for the establishment of a qualified retirement plan), or has pending or has time remaining in which to file, an application for such determination from the Internal Revenue ServiceIRS, and and, to the Company Knowledge of the Company, there is not aware of any no reason why any such determination (or opinion) letter should be revoked or not be reissued. The Company has made available to Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (ed) Except with respect to agreementsas provided in this Agreement or as required by Applicable Law, arrangements or other instruments listed on and except as set forth in Section 4.16(e4.17(d) of the Company Disclosure ScheduleLetter, the consummation of the transactions contemplated by this Agreement Transactions will not, not (either alone or together with any other event: (i, including a subsequent termination of employment or services) entitle any such person current or former employee or independent contractor of any Acquired Company to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger pay or accelerate the time of payment or vesting or trigger any payment of funding (through a grantor trust or otherwise) of any compensation or benefits under, increase the amount payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to pursuant to, any such person. Except Employee Plan (including any acceleration of vesting with respect to agreements, arrangements a Company Compensatory Award held by employees of an Acquired Company as a result of the Transaction or other instruments listed on any termination of employment in connection therewith). Except as set forth in Section 4.16(e4.17(d) of the Company Disclosure ScheduleLetter, there is no Contract payment or plan benefit (written including vesting of Company Compensatory Awards) that will or otherwise) covering may be made by any employee Acquired Company or their ERISA Affiliates to any current or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment other service provider of any amount that would not Acquired Company is reasonably expected to be deductible pursuant to characterized as a “parachute payment” within the terms meaning of Section 280G or 162(m280G(b)(2) of the Code. There is no Contract by which any Acquired Company is bound to compensate any employee for excise Taxes paid pursuant to Section 4.16(e4999 of the Code. (e) Except as set forth on the Company Balance Sheet or as set forth in Section 4.17(e) of the Company Disclosure Schedule lists all agreementsLetter, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the no Acquired Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries ERISA Affiliate has any current or projected liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the any Acquired Company or its Subsidiaries any ERISA Affiliate, except as required to avoid excise tax under Section 4980B of the Code. (g) There has been no amendment to, written interpretation Code or announcement (whether under Part 6 of Subtitle B of Title I of ERISA or not written) by except for the Company or any continuation of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially through the expense of maintaining such Employee Plan above the level end of the expense incurred calendar month in respect thereof for the fiscal year ended December 30, 2006which termination from employment occurs. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no No condition exists that would prevent the any Acquired Company or any ERISA Affiliate from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination that is an “employee welfare benefit plan” as defined in Section 3(1) of such planERISA in accordance with its terms. (hf) No Acquired Company is a party to or bound by, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor-related contract or arrangement with a labor union, works council or similar organization. There is are no actionlabor unions or other organizations representing, suit, investigation, audit or proceeding pending against or involving or, to the knowledge Knowledge of the Company, purporting to represent or attempting to represent, any employee of the Acquired Companies, nor has any such action or attempt occurred within the past three years. There is no pending or, to the Knowledge of the Company, threatened against labor strike, dispute, walkout, work stoppage, slowdown or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (i) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage lockout with respect to group health plansemployees of the Acquired Companies, except for failures to comply that have and no such strike, dispute, walkout, slowdown or lockout has occurred within the past three years. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect Effect, each Acquired Company is in compliance with all Applicable Laws regarding employment, employment practices, terms and conditions of employment, employment safety and health, immigration, wages and hours, and employee-independent contractor classification, and with respect to employees each Acquired Company (i) is not liable for any arrears of wages, severance pay or any Taxes or any penalty for failure to comply with any of the foregoing and (ii) is not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Authority, with respect to unemployment compensation benefits, social security or other benefits for employees (in each case, other than routine payments to be made in the normal course of business, and not yet overdue, and consistent with past practice). There are no pending, or the Knowledge of the Company, threatened Proceedings or, to the Knowledge of the Company, investigations, pertaining to employment or employment practices between any Acquired Company and any of its respective current or former employees, in each case, as would reasonably be expected to have a Company Material Adverse Effect. The Acquired Companies are in compliance in all material respects with the Worker Adjustment and Retraining Act of 1998, as amended. (jg) Except as set forth No Acquired Company has engaged in Section 4.16(jany transaction with respect to any Employee Plan that would be reasonably likely to subject any Acquired Company to any Tax or penalty (civil or otherwise) of imposed by ERISA, the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement Code or other labor agreement with Applicable Law that could reasonably be expected to have a Company Material Adverse Effect. There do not exist any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge Knowledge of the Company, threatened against Proceedings (other than routine claims for benefits) with respect to any Employee Plan that could reasonably be expected to have a Company Material Adverse Effect. (h) Except as has not had and would not reasonably be expected to have, individually or affecting in the aggregate, a Company Material Adverse Effect, each Employee Plan or any other Contract to which one of its Subsidiaries; the Acquired Companies is a party and that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d)(1) of the Code) (i) has, at all times since the adoption of Section 409A of the Code, been administered in all material respects in good-faith compliance with the requirements of Section 409A of the Code and applicable guidance issued thereunder, (ii) has been, since the later of (A) January 1, 2009 and (B) such Employee Plan’s or Contract’s inception date, in a written form that complies with, and has been administered in compliance with, Section 409A of the Code and the final regulations promulgated and in effect thereunder, and (iii) there are no representation claims or petitions pending before the National Labor Relations Board; and (iv) there are no grievances or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or amount under any collective bargaining agreement. (k) Except as such plan or arrangement is or has been subject to the interest and additional Tax set forth on under Section 4.16(k409A(a)(1)(B) of the Company Disclosure Schedule, since the Balance Sheet Date, neither Code. Neither the Company nor any of its Subsidiaries other Acquired Company has effectuated: (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment obligation to gross-up or one or more facilities or operating units within indemnify any site of employment or facility of the Company or individual with respect to any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local lawTax.

Employees and Employee Benefit Plans. (a) Section 4.16 3.11(a) of the Company Seller Bank Disclosure Schedule contains a list of all current full-time or part- time employees or consultants of Seller Bank (the "Employees") and their current salaries and other compensation, including bonuses, any special benefits and other related information. (b) Section 3.11(b) of the Seller Bank Disclosure Schedule sets forth a true, complete and correct and complete list identifying each “(all of which are collectively referred to as the "Employee Benefit Plans") of all "employee benefit planplans,” " as defined in Section 3(3) of the Employee Retirement Security Act of 1974, as amended, and the rules and regulations promulgated thereunder (collectively, "ERISA"), each employmentall benefit plans as defined in 6039D of the Internal Revenue Code of 1986, severance or similar Contractas amended, plan or policy and each the rules and regulations promulgated thereunder (collectively the "Code"), and all other plan or arrangement (written or oral) providing for bonus, incentive compensation, bonusesdeferred compensation, profit-profit sharing, stock option or other stock related rights or other forms of incentive or deferred compensationoption, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensationseverance, supplemental unemployment benefitsunemployment, severance benefits and post-employment or retirement benefits (including compensationlayoff, salary continuation, retirement, pension, health, medical life insurance, disability, group insurance, vacation, holiday, sick leave, fringe benefit or life insurance benefitswelfare plan or employment, consulting, change in control, independent contractor, professional services, confidentiality or non- competition agreement or any other similar plan, agreement, policy or understanding (whether oral or written, qualified or non-qualified) and any trust, escrow or other form of benefits funding arrangement related thereto, (i) which is maintained, administered currently or has been at any time within the last sixty (60) months maintained or contributed to by the Company Seller Bank, or (ii) with respect to which Seller Bank has any liability or obligations to any current or former officer, Employee, or service provider of Seller Bank or any ERISA Affiliate (as herein defined), or the dependents of any thereof, regardless of whether funded, or (iii) which is maintained by Seller Bank or any ERISA Affiliate and is subject to Section 412 of the Company Code, Section 302 of ERISA or Title IV of ERISA, or (iv) which could result in the imposition of liability or any obligation of any kind or nature, whether accrued, absolute, contingent, direct, indirect, known or unknown, perfected or inchoate or otherwise and covers any employeewhether or not now due or to become due, director to Seller Bank or former employee or director an ERISA Affiliate. (c) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Company or any of its Subsidiaries, or Code) has been incurred with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect to each Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurredBenefit Plan, whether or not waived; (ii) the Company . Seller Bank does not now have and will not have at any time in the future any liability for security required to be provided to an Employee Benefit Plan under Section 401(a)(29) of the Code. For each Employee Benefit Plan that is a "defined benefit plan" (as defined in Section 414(j) of the Code), the value of the assets of each such Employee Benefit Plan are sufficient to offset the plan's accumulated benefit obligations, as described in the Statement of Financial Accounting Standards No. 87 prepared by the Financial Accounting Standards Board (the "Statement"). (d) Except as disclosed on Schedule 3.11(d) of the Seller Bank Disclosure Schedule, no Employee Benefit Plan, if subject to Title IV of ERISA, has been completely or partially terminated. To First Tennessee's knowledge, the Pension Benefit Guaranty Corporation (the "PBGC") has not instituted or threatened a proceeding to terminate any of the Employee Benefit Plans pursuant to Title IV of ERISA, and no condition or set of circumstances exists which presents a material risk of termination or partial termination of any of the Employee Benefit Plans by the PBGC. None of the Employee Benefit Plans has been the subject of a reportable event (as defined in Section 4043 of ERISA) as to which a notice would be required to be filed with the PBGC. Seller Bank does not now have and will not at any time in the future have any liability for insurance premiums due to the PBGC with regard to the Employee Benefit Plans for any applicable periods ending on or before the Closing Date. (Ae) Seller Bank does not now have and will not at any time in the future have any liability, including liability resulting from the transactions contemplated under this Agreement, (i) for the termination of or withdrawal from any plan under Sections 4062, 4063, or 4064 of ERISA, (ii) for any lien imposed under ERISA Section 302(f) of ERISA or Code Section 412(n)) of the Code, (Biii) for any interest payments required under Section 302(e) of ERISA Section 302 (e) or Code Section 412(m)) of the Code, (Civ) for any excise tax imposed by Code Sections 4971Section 4971 of the Code, 4972, or 4979, or (Dv) for any minimum funding contributions under ERISA Section 302(c)(11) of ERISA or Code Section 412(c)(11); ) of the Code, or (vi) for withdrawal from any multi-employer plan under Section 4201 of ERISA. (f) Seller Bank has heretofore provided to Buyer Bank, with respect to each of the Employee Benefit Plans, true, accurate and complete copies of the following documents as applicable: (i) the Employee Benefit Plan document and all amendments, (ii) the actuarial report, if any, for such Employee Benefit Plan for each of the last three (3) years, (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); all personnel, payroll and employment manuals and policies, and (iv) the PBGC has not instituted proceedings such other documents, records or threatened to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments materials related thereto reasonably requested by Buyer Bank prior to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be usedClosing Date. (cg) Within To First Tennessee's knowledge, there have been no prohibited transactions, breaches of fiduciary duty or other breaches or violations of any law applicable to the last six (6) years, the Company has not made any contributions Employee Benefit Plans and related funding arrangements that could subject Seller Bank to any multiemployer plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such plan. (d) liability. Each Employee Benefit Plan which is intended to be qualified under Section 401(a) of the Code has received a current favorable determination letter that it is so qualified(or, in the case of a standardized form or has pending paired plan, a favorable opinion or has time remaining in which to file, an application for such determination from the Internal Revenue Servicenotification letter), and to First Tennessee's knowledge, no event has occurred which, to the Company is not aware knowledge of Seller Bank, could cause any reason why any such determination letter should be revoked or not be reissued. The Company has made available Employee Benefit Plan to Parent prior to date become disqualified for purposes of this Agreement copies Section 401(a) of the most recent Internal Revenue Service determination letters Code. Each Employee Benefit Plan has been in all material respects operated in compliance with applicable law, including Section 401(a) of the Code and ERISA, as applicable, and in accordance with its terms. (h) All required reports and tax returns of the Employee Benefit Plans have been timely filed with the IRS, the United States Labor Department (the "DOL") and the PBGC. All required summary plan descriptions, summaries of material modifications and summary annual reports have been provided to participants in the Employee Benefit Plans. (i) There are no pending claims, lawsuits or actions relating to any Employee Benefit Plan (other than ordinary course claims for benefits) with respect to each such Employee Plan. To Seller Bank Employees and, to the best knowledge of the CompanySeller Bank, each Employee Plan has none are threatened. (j) No written or oral representations have been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no events have occurred with respect made to any Employee Plan that could result in or former Employee of Seller Bank promising or guaranteeing any employer payment or assessment by funding, and no Employee Benefit Plans provide, for the continuation of medical, dental, life or against disability insurance coverage for any former Employee of Seller Bank for any period of time beyond the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 end of the Code, current plan year (except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the extent of coverage required under Title I, Part 6, of ERISA ("COBRA")). The consummation of the transactions contemplated by this Agreement will not accelerate the time of vesting, of payment, or increase the amount, of compensation to any Employee, officer, former Employee or former officer of Seller Bank. No Employee Benefit Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (e) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, contracts or arrangements provide for payments that would be triggered by the consummation of the transactions contemplated by this Agreement will not, either alone or together with that would subject any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e) of the Company Disclosure Schedule lists all agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B 4999 of the Code (i.e., "golden parachute" taxes). All compensation amounts that have been paid or are payable are or will become deductible by Seller Bank or First Tennessee pursuant to Section 162 of the Code. (gk) There Seller Bank has been no amendment to, written interpretation or announcement (whether or not written) by complied with the Company or any continuation coverage provisions of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 30, 2006. Except COBRA with respect to agreementsall current Employees and former Employees of Seller Bank. (l) Seller Bank has not incurred any liability to the DOL, arrangements the PBGC or other instruments listed on Section 4.16(g) the IRS in connection with any of the Company Disclosure ScheduleEmployee Benefit Plans, and no condition exists that would prevent presents a risk to Seller Bank of incurring any liability to the Company from amending DOL, the PBGC or terminating the IRS. (m) Seller Bank has paid in full all amounts which are required under the terms of each Employee Benefit Plan to have been paid as of the date of this Agreement. As of the Closing Date, Seller Bank shall have paid in full all liabilities accrued to it with respect to each Employee or former Employee of Seller Bank in each Employee Benefit Plan. (n) All amounts required under any Employee Benefit Plan without liability, other than the obligation or arrangement that provides for ordinary benefits accrued severance payments to Employees will be paid on or prior to the termination completion of such planthe transactions contemplated herein. (ho) There is no actionFor purposes of this Section 3.11, suit, investigation, audit or proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. term "ERISA Affiliate" shall mean (i) The Company and its Subsidiaries have complied any related company or trade or business that is required to be aggregated with all Applicable Laws relating to labor and employmentSeller Bank or First Tennessee under Code Sections 414(b), including those relating to wages(c), hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually (m) or in the aggregate, a Material Adverse Effect on the Company. (j) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Boardo); (ii) there are no labor strikesany other company, slowdowns entity or stoppages actually pending or, to the knowledge of the Company, threatened against trade or affecting the Company business that has adopted or has ever participated in any of its SubsidiariesEmployee Benefit Plan; and (iii) there are no representation claims any predecessor or petitions pending before the National Labor Relations Board; successor company or trade or business of Seller Bank or First Tennessee or any entity described in 3.11(f)(i) and (iv) there are no grievances or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective bargaining agreementf)(ii). (k) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Section 4.16 of the Company Disclosure Schedule contains a correct and complete list identifying each “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance or similar Contract, plan or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director or director, former employee or former director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect to each Other than a Multiemployer Plan, neither the Company nor any ERISA Affiliate of the Company nor any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be usedERISA. (c) Within To the last six (6) yearsknowledge of the Company, no condition exists that could present a material risk of complete or partial withdrawal from any Multiemployer Plan which could result in the Company, any Subsidiary or any ERISA Affiliate of any of them incurring a withdrawal liability within the meaning of Section 4201 of ERISA, and if a complete withdrawal by the Company has not made and all of its ERISA Affiliates were to occur as of the Closing Date with respect to all Multiemployer Plans, none of the Company, any contributions to Subsidiary or any multiemployer plan (as defined in of their ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member Affiliates would incur any material withdrawal liability under Title IV of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such planERISA. (d) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter that it is so qualified, 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 Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (e) Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(e) of the Company Disclosure Schedule, with respect to each current or former employee or independent contractor of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there There is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e) of the Company Disclosure Schedule lists all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code. (g) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 3031, 20062005. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no No condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (h) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.Authority (i) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (j) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: , (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, or threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations BoardBoard and there are no questions concerning representation with respect to the employees of the Company or its Subsidiaries; and (iv) there are no grievances grievance or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective collection bargaining agreement. (k) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: effectuated (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Section 4.16 4.17(a) of the Company Disclosure Schedule contains sets forth a correct true and complete list identifying as of the date of this Agreement of each material Company Employee Plan, other than individual employment agreements that do not materially deviate from the applicable sample employment letters which have been made available to Purchaser. For each material Company Employee Plan, Company has made available to Purchaser a copy of such plan (or a description, if such plan is not written) and all amendments thereto, together with a copy of (if applicable) (i) each material trust, insurance or other funding arrangement, (ii) each summary plan description and summary of material modifications, (iii) the three most recently filed Internal Revenue Service Forms 5500, (iv) the most recent favorable determination or opinion letter from the Internal Revenue Service, (v) the most recently prepared actuarial reports and financial statements in connection with each such Company Employee Plan and (vi) all material, non-routine documents and correspondence relating thereto received from or provided to the Department of Labor, the PBGC, the Internal Revenue Service or any other Governmental Authority during the past six years. (b) Neither Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to sponsor, maintain, administer or contribute to), or has, in the prior six years, sponsored, maintained, administered or contributed to (or had any obligation to sponsor, maintain, administer or contribute to), or has any liability or obligation (whether fixed or contingent) with respect to, any (i) plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, including, without limitation, any multiemployer plan, as defined in Section 3(37) of ERISA, (ii) any “employee benefit multiple employer welfare arrangement,” as defined in Section 3(40) or ERISA or (iii) any “multiple employer plan,” as defined in Section 3(3413(c) of ERISA, each employment, severance or similar Contract, plan or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the Code. Neither Company or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or nor any of its Subsidiaries has any liability. Copies have in the last six years been an “associate” of such plans or “connected” with an “employer” (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect to each Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or the United Kingdom Pensions Act 2004) of an “occupational pension scheme” which is not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employermoney purchase scheme” (as such terms are defined in ERISA Section 4001(a)(2the United Kingdom Pension Schemes Act 1993)); (iv) . Neither Company nor any of its Subsidiaries have at any time prior to the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any date of this Agreement been such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination ofan employer, or the appointment of participated in or had any liability in relation to a trustee to administer, defined benefit pension scheme in any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be usedjurisdiction. (c) Within the last six (6) years, the Each Company has not made any contributions to any multiemployer plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such plan. (d) Each Employee Plan which that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter that it is so qualified, or may rely on a favorable opinion letter from the Internal Revenue Service or has pending or has time remaining in which applied to file, an application the Internal Revenue Service for such determination from a letter within the applicable remedial amendment period or such period has not expired and, to the knowledge of Company, no circumstances exist that would reasonably be expected to result in any such letter being revoked or not being reissued or a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an Internal Revenue Service audit or investigation. (d) Each Company Employee Plan has been maintained and operated in all material respects in compliance with its terms and all Applicable Law, including ERISA, the Code, and any applicable provisions of the United Kingdom Pensions Xxx 0000. No material Proceeding (other than routine claims for benefits) is pending against or involves or, to Company’s knowledge, is threatened against or reasonably expected to involve, any Company Employee Plan before any Governmental Authority, including the Internal Revenue Service, and the Company is not aware Department of any reason why any such determination letter should be revoked Labor, the PBGC, the United Kingdom Pensions Ombudsman or not be reissuedthe United Kingdom Pensions Regulator. The Company has made available to Parent prior to As of the date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect Agreement, there are no pending or, to each such Employee Plan. To the knowledge of the Company, each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed threatened audits or investigations by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Governmental Authority involving any Company Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (e) Except with With respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Scheduleeach Relevant Service Provider, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: , including a termination of employment or service (where such other event would not alone have an effect described in this sentence): (i) entitle any such person Relevant Service Provider to any payment or benefit, including any change in control, transaction, bonus, retention, severance pay, bonus amounts, or retirement benefits, job security benefits or similar benefitsbenefit, (ii) trigger or accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of any compensation or benefits under, or increase the amount payable to or trigger any such personother obligation under, any Company Employee Plan, Company Equity Plan or otherwise, (iii) accelerate contractually limit or restrict the vesting of right to amend or terminate any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) Company Employee Plan or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to result in the payment of any amount that would not be deductible pursuant to the terms of “excess parachute payment” (as defined in Section 280G or 162(m280G(b)(1) of the Code. Section 4.16(e) of the Company Disclosure Schedule lists all agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither the Neither Company nor any of its Subsidiaries has any liability for, and no Company Employee Plan provides for any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any Relevant Service Provider or any of their respective dependents or beneficiaries other than coverage mandated by Applicable Law (such as health care continuation coverage as required by Section 4980B of the Code or any similar state law). All material contributions and expenses due and payable by Company or any of its Subsidiaries in respect of post-retirement healtha Company Employee Plan have been paid in full. (g) No Tax penalties or additional Taxes have been imposed or would be reasonably expected to be imposed on any Relevant Service Provider, medical and no acceleration of Taxes has occurred or life insurance benefits for retiredwould be reasonably expected to occur with respect to any Relevant Service Provider, former or current employees in each case as a result of a failure to comply with Section 409A of the Code with respect to any Company or Employee Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code. Neither Company nor any of its Subsidiaries except as required has any obligation to avoid excise tax gross-up, indemnify or otherwise reimburse any Person for any Tax incurred by such Person under Section 4980B 409A or 4999 of the Code. (gh) There has been no amendment toAny lump sum, written interpretation gratuity or announcement (whether other like benefit payable in the event of the death in service of a United Kingdom-based employee or not written) by the officer of Company or any of its Affiliates relating to, or change in employee participation or coverage under, Subsidiaries is fully insured with an Employee Plan which would increase materially insurance company authorized under the expense United Kingdom Financial Services and Markets Xxx 0000 with permission under Part 4A of maintaining such Employee Plan above the level that Act to effect and carry out contracts of the expense incurred in respect thereof for the fiscal year ended December 30, 2006. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such planlong-term insurance. (hi) There is no action, suit, investigation, audit With respect to any Company Employee Plan for the benefit of Relevant Service Providers or proceeding pending against dependents or involving or, to the knowledge beneficiaries thereof who perform services or who are employed outside of the CompanyUnited States (a “Non-U.S. Plan”), threatened against or involving, any Employee Plan before any Governmental Authority that has had or except as would not reasonably be expected to havebe, individually or in the aggregate, a Material Adverse Effect on the Company. (i) The material to Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employmentSubsidiaries, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, taken as a Material Adverse Effect on the Company. (j) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In additionwhole: (i) there are if required to have been approved by any non-U.S. Governmental Authority (or permitted to have been approved to obtain any beneficial Tax or other status), such Non-U.S. Plan has been so approved or timely submitted for approval; no unfair labor practice charges such approval has been revoked (nor, to the knowledge of Company, has revocation been threatened) and no event has occurred since the date of the most recent approval or complaints against application therefor that is reasonably likely to affect any such approval; (ii) if intended to be funded and/or book reserved, such Non-U.S. Plan is fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions; (iii) no liability exists or reasonably could be imposed upon the assets of Company or any of its Subsidiaries pending before the National Labor Relations Boardby reason of such Non-U.S. Plan; (iiiv) all contributions to, and payments from, such Non-U.S. Plan which may have been required to be made in accordance with the terms of such Non-U.S. Plan, and, when applicable, the Applicable Laws of the jurisdiction in which such Non-U.S. Plan is maintained, have been timely made or shall be made by the Closing Date; (v) such Non-U.S. Plan is and has been administered at all times in compliance with its terms and all Applicable Laws of each jurisdiction in which such Non-U.S. Plan is maintained; (vi) as of the date of this Agreement, there are no labor strikespending investigations by any Governmental Authority involving such Non-U.S. Plan, slowdowns and no pending claims (except for claims for benefits payable in the normal operation of such Non-U.S. Plan), or stoppages actually pending or, to proceedings against such Non-U.S. Plan and (vii) the knowledge consummation of the Company, threatened against Transaction will not create or affecting the Company or otherwise result in any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations Board; and (iv) there are no grievances or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective bargaining agreementliability with respect to such Non-U.S. Plan. (k) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Section 4.16 5.17(a) of the Company Disclosure Schedule contains a correct and complete list identifying each “material "employee benefit plan,” " as defined in Section 3(3) of ERISA, each material employment, severance or similar Contract, plan or policy and each other material plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ ' compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form forms of benefits which is are maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liabilityliability (collectively, the "Employee Plans"). Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto thereto, other than Employee Plans maintained outside of the United States primarily for the benefit of employees working outside of the United States (the "Non-U.S. Employee Plans") and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) and tax return (Form 990) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) To the knowledge of the Company, as of the date hereof, none of the Company's employees at the level of Managing Director or higher, or who has otherwise been requested to sign an employment letter or similar agreement in connection with the transactions contemplated by this Agreement, has indicated to the Company or any of its Subsidiaries that he or she intends to resign or retire as a result of the transactions contemplated by this Agreement. (c) With respect to each Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participatedERISA, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for neither the Company nor any lien imposed current or former ERISA Affiliate of the Company has any unsatisfied liability under ERISA Section 302(f) or Code Section 412(n)Title IV of ERISA, (B) for no condition exists that presents a material risk to the Company or any interest payments required current or former ERISA Affiliate of the Company of incurring a material liability under ERISA Section 302 (e) or Code Section 412(m)Title IV of ERISA, (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC Pension Benefit Guaranty Corporation has not instituted proceedings or threatened to institute proceedings under Section 4042 of ERISA to terminate any such Employee Plan; , (vD) no other event or condition has occurred that might constitute grounds under would be reasonably expected to subject the Company or any current or former ERISA Section 4042 for Affiliate of the termination ofCompany to any tax, fine, lien, penalty or other liability imposed by ERISA, the appointment of a trustee to administerCode or other Applicable Laws, any such Employee Plan; rules and regulations, (viE) all required premium payments required to have been made to the PBGC Pension Benefit Guaranty Corporation have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; paid, and (viiiF) the present value of all “aggregate "benefit liabilities” " (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did does not exceed as the current value of such plan's assets of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (cd) Within the last six (6) years, Neither the Company nor any ERISA Affiliate has not ever made or been required to make any contributions to any multiemployer plan Multiemployer Plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such plan. (de) During the six year period ending on the Closing Date, neither the Company nor any of its ERISA Affiliates has terminated or taken action to terminate, in part or in whole, any employee benefit plan that is subject to the provisions of Title IV of ERISA. (f) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter that it is so qualified, 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 Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Each Employee Plan (other than the Non-U.S. Employee Plans) has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulationsApplicable Laws, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no No events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, Code except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “"nonqualified deferred compensation” " as defined in Code Section 409A has been operated since January 1, 2005, administered in reasonable good faith compliance accordance with and meets the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, 409A except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. All contributions that are required to be made with respect to the Employee Plans have been made on a timely basis by the Company and all Subsidiaries in accordance with past practice and the recommended contribution in the applicable actuarial report and in accordance with ERISA and the Code as applicable. All insurance premiums with regard to the Employee Plans that are required to be made have been paid in full on a timely basis. (eg) Except with respect to agreements, arrangements or other instruments listed as set forth on Section 4.16(e5.17(g) of the Company Disclosure Schedule, with respect to each current or former employee or independent contractor of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e5.17(g) of the Company Disclosure Schedule lists all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) . Except with respect to agreements, arrangements or other instruments listed as set forth on Section 4.16(f5.17(g) of the Company Disclosure Schedule, neither there is no Employee Plan that, individually or collectively, could give rise to the Company nor payment of any amount that would not be deductible pursuant to the terms of its Subsidiaries has any liability in Section 280G or 162(m) of the Code. (h) With respect of post-retirement to each Employee Plan that provides health, medical or life insurance benefits for retired, (whether or not insured) with respect to employees or former employees (or current employees any of their beneficiaries) of the Company or any of its Subsidiaries except as required ERISA Affiliates after retirement or other termination of service, such Employee Plan may be terminated or amended to avoid excise tax under Section 4980B reduce benefits or limit the liability of the CodeCompany or any of its ERISA Affiliates, in each case, without material liability to the Company or any of its ERISA Affiliates on or at any time after the Effective Time. (gi) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 3031, 2006. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan2011. (hj) There is no action, suit, investigation, audit or proceeding (other than routine claims for benefits) pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyPlan. (ik) All material Non-U.S. Benefit Plans are listed on Section 5.17(k) of the Company Disclosure Schedule and comply in all material respects with their terms and Applicable Laws. (l) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s 's compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (jm) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: , (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations BoardBoard and there are no questions concerning representation with respect to the employees of the Company or its Subsidiaries; and (iv) there are no grievances grievance or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective collection bargaining agreement. (kn) Except as set forth on Section 4.16(k) of Since the Company Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: effectuated (i) a “"plant closing” " (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “"mass layoff” " (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Section 4.16 5.16(a) of the Company Disclosure Schedule contains a correct and complete list identifying each “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance or similar Contract, plan or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto thereto, summary plan descriptions, and written interpretations thereof summaries of material modifications, along with administrative service agreements, have been furnished to Parent together with the three most recent annual report reports (Form 5500 including, if applicable, Schedule B thereto) and Tax returns (Form 990) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect The Company has never made any contributions to each any Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participatedERISA, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from never been a member of a controlled group which contributed to any such Employee Plan during a plan year in Plan, and the Company has never been under common control with an employer which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened contributed to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (c) Within the last six (6) years, the The Company has not never made any contributions to any multiemployer multiemployer-employer plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not never been a member of a controlled group which contributed to any such plan, and the Company has not never been under common control with an employer which contributed to any such plan. (d) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code is set forth in Section 5.16(d) of the Company Disclosure Schedule and has received a favorable determination letter that it is so qualified, 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 Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Each Employee Plan has been maintained in substantial material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no No events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any material excise taxes Taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code. Each Employee Plan and related funding instrument is legal, except for failures to comply valid and binding and in full force and effect, and there are no defaults thereunder. None of the rights of the Company or violations that have not had its Subsidiaries thereunder will be impaired by the consummation of the transactions contemplated by this Agreement, and would not reasonably all of the rights of the Company and its Subsidiaries thereunder will be expected to have, individually enforceable by Parent at or in after the aggregate, a Material Adverse Effect on Closing without the Companyconsent or agreement of any other party. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, documented and administered in reasonable good faith compliance accordance with and meets the requirements of Code Section 409A. No tax liabilities have been incurred or otherwise arisen under Code Section 409A under any applicable Employee Plan, nor is any such tax liability expected to arise in connection with any payment as a result of the transactions contemplated in this Agreement. All contributions with respect to the Employee Plans for all periods ending prior to the Closing Date (including periods from the first day of the current plan year to the Closing Date) will be made prior to the Closing Date by the Company and all Subsidiaries in accordance with past practice and the recommended contribution in the applicable actuarial report. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code. All insurance premiums have been paid in full, except for failures subject only to comply or violations that have not had and would not reasonably be expected to have, individually or normal retrospective adjustments in the aggregateordinary course, a Material Adverse Effect with regard to the Employee Plans for policy years or other applicable policy periods ending on or before the CompanyClosing Date. (e) Except with With respect to agreementseach current or former employee, arrangements director or other instruments listed on Section 4.16(e) independent contractor of the Company Disclosure Scheduleor any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there There is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e5.16(e) of the Company Disclosure Schedule lists (i) all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers current or former employees, including officers, directors, or independent contractors of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this AgreementAgreement and (ii) the maximum aggregate amounts so payable to each Executive Officer and the aggregate amount payable, by category, to senior vice presidents and vice presidents, as a group, as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer). (f) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax Tax under Section 4980B of the CodeCode or applicable state law. (g) There has been no amendment to, written interpretation to or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 30October 2, 20062009. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no No condition exists that would prevent the Company (or Parent after the Closing) from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (h) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge Knowledge of the Company, threatened against or involving, any Employee Plan Plan, whether before any Governmental Authority Authority, court or otherwise, and no facts exist that would give rise to any such action, suit, investigation, audit or proceeding, other than routine undisputed claims for benefits. None of the Company, its Subsidiaries, or any of their respective directors, officers, employees, or any plan fiduciary has had any liability for failure to comply with Applicable Laws, including ERISA, HIPAA, COBRA or would reasonably be expected the Code, for any action or failure to haveact in connection with any Employee Plan, individually including with respect to the administration or investment thereof. The Company and its Subsidiaries have no liability by virtue of being a member of a controlled group with a person who has liability under the Code or ERISA. Neither the Company nor any of its Subsidiaries has terminated or taken action to terminate (in part or in the aggregate, a Material Adverse Effect on the Companywhole) any employee benefit plans as defined in ERISA Section 3(3). (i) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxesTaxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (j) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: , (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, or threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations BoardBoard and there are no questions concerning representation with respect to the employees of the Company or its Subsidiaries; and (iv) there are no grievances grievance or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective collection bargaining agreement. (k) Except as set forth on Section 4.16(k) of Since the Company Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: effectuated (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law. (l) Neither the Company nor any of its Subsidiaries maintains any Employee Plan or other benefit arrangement covering any employee or former employee outside of the Xxxxxx Xxxxxx, and neither the Company nor any of its Subsidiaries has ever been obligated to contribute to any such plan.

Employees and Employee Benefit Plans. (a) Section 4.16 Exhibit 3.13 (a) lists each employment, bonus, deferred compensation, pension, stock option, stock appreciation right, profit-sharing or retirement plan, arrangement or practice, each medical, vacation, retiree medical, severance pay plan, and each other agreement or fringe benefit plan, arrangement or practice, of any of the Company Disclosure Schedule contains a correct and complete list identifying FCS Companies, whether legally binding or not, which affects one or more of its employees, including all "employee benefit plans" as defined by Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") (collectively, the "Plans"). (b) For each “Plan which is an "employee benefit plan,” as defined in " under Section 3(3) of ERISA, each employment, severance or similar Contractthe FCS Companies delivered to the Buyer correct and complete copies of the plan documents, plan or policy amendments, and each other summary plan or arrangement (written or oral) providing for compensationdescriptions, bonusesthe determination letters received from the IRS, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 includingAnnual Report, if applicableand all related trust agreements, Schedule B thereto) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect to each Employee Plan insurance contracts and funding agreements which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under implement each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (c) Within None of the last six FCS Companies have any commitment, whether formal or informal and whether legally binding or not, (6i) years, the Company has not made to create any contributions additional such Plan; (ii) to any multiemployer plan (as defined in ERISA Section 3(37) modify or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to change any such plan, and the Company has not been under common control with an employer which contributed Plan; or (iii) to maintain for any period of time any such planPlan. (d) Each Employee None of the FCS Companies nor any Plan nor any trustee, administrator, fiduciary or sponsor of any Plan has engaged in any prohibited transactions as defined in Section 406 of ERISA or Section 4975 of the IRC for which there is no statutory exemption in Section 408 of ERISA or Section 4975 of the IRC; all filings, reports and descriptions as to such Plans (including Form 5500 Annual Reports, Summary Plan Descriptions, and Summary Annual Reports) required to have been made or distributed to participants, the IRS, the United States Department of Labor and other governmental agencies have been made in a timely manner or will be made on or prior to the Closing Date; there is no material litigation, disputed claim, governmental proceeding or investigation pending or threatened with respect to any of such Plans, the related trusts, or any fiduciary, trustee, administrator or sponsor of such Plans; such Plans have been established, maintained and administered in all material respects in accordance with their governing documents and applicable provisions of ERISA and the IRC and Treasury Regulations promulgated thereunder; and each Plan which is intended to be a qualified plan under Section 401(a) of the Code IRC has received received, within the last three years, a favorable determination letter that it is so qualified, 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 Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyIRS. (e) Except The FCS Companies have performed all of their respective obligations under all Plans. The FCS Companies, with respect to agreementsall Plans, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Scheduleare, and each Plan, is in compliance, in all material respects, with ERISA, the IRC, and other applicable Laws, and with any applicable collective bargaining agreement. (f) The consummation of the transactions contemplated by this Agreement Contemplated Transactions will not, either alone or together with any other event: except as otherwise provided in Section 2.8 and Section 2.17 hereof, (i) entitle result in the payment or series of payments by any such person of the FCS Companies to severance payany employee or other Person of an "excess parachute payment" within the meaning of Section 280G of the IRC, bonus amounts, retirement benefits, job security benefits or similar benefits, and (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation stock option, stock appreciation right, deferred compensation, severance bonus or other employee benefits of under any such person Plan (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e) of the Company Disclosure Schedule lists all agreements, arrangements vacation and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officersick pay), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code. (g) There has been no amendment toNone of the Plans which are "welfare benefit plans," within the meaning of Section 3(1) of ERISA, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation provide for continuing benefits or coverage underafter termination or retirement from employment, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred except for COBRA rights under a "group health plan" as defined in respect thereof for the fiscal year ended December 30, 2006. Except with respect to agreements, arrangements or other instruments listed on IRC Section 4.16(g4980B(g) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such planand ERISA Section 607. (h) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge None of the CompanyFCS Companies or any entity which would be treated as a single employer with the FCS Companies under IRC Section 414 ("ERISA Affiliate") has ever participated in or withdrawn from a multi-employer plan as defined in Section 4001(a)(3) of Title IV of ERISA, threatened against and the FCS Companies have not incurred and do not owe any liability as a result of any partial or involvingcomplete withdrawal by any employer from such a multiemployer plan as described under Sections 4201, any Employee Plan before any Governmental Authority that has had 4203, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company4205 of ERISA. (i) The Company and its Subsidiaries have complied with all Applicable Laws relating None of the FCS Companies or any ERISA Affiliate maintains or contributes or ever has maintained or contributed to labor and employment, including those relating any Plan that is subject to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding Title IV of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually ERISA or in the aggregate, a Material Adverse Effect on minimum funding standards of Section 412 of the CompanyIRC. (j) Except as set forth in Section 4.16(j) of the Company Disclosure ScheduleEach Plan can be terminated within thirty days, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding without payment of any labor organization additional contribution or employee group to organize any such employees. In addition: (i) there are no unfair labor practice charges amount and without the vesting or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations Board; and (iv) there are no grievances or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective bargaining agreement. (k) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application acceleration of any similar state benefits promised by such Plan other than any contribution, vesting or local lawacceleration for which Sellers shall have sole responsibility.

Employees and Employee Benefit Plans. (a) Section 4.16 5.17(a) of the Company Disclosure Schedule contains a correct and complete list identifying each material “employee benefit plan,” as defined in Section 3(3) of ERISA, each material employment, severance or similar Contract, plan or policy and each other material plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form forms of benefits which is are maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liabilityliability (collectively, the “Employee Plans”). Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto thereto, other than Employee Plans maintained outside of the United States primarily for the benefit of employees working outside of the United States (the “Non-U.S. Employee Plans”) and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) and tax return (Form 990) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) To the knowledge of the Company, as of the date hereof, none of the Company’s employees at the level of Managing Director or higher, or who has otherwise been requested to sign an employment letter or similar agreement in connection with the transactions contemplated by this Agreement, has indicated to the Company or any of its Subsidiaries that he or she intends to resign or retire as a result of the transactions contemplated by this Agreement. (c) With respect to each Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participatedERISA, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for neither the Company nor any lien imposed current or former ERISA Affiliate of the Company has any unsatisfied liability under ERISA Section 302(f) or Code Section 412(n)Title IV of ERISA, (B) for no condition exists that presents a material risk to the Company or any interest payments required current or former ERISA Affiliate of the Company of incurring a material liability under ERISA Section 302 (e) or Code Section 412(m)Title IV of ERISA, (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC Pension Benefit Guaranty Corporation has not instituted proceedings or threatened to institute proceedings under Section 4042 of ERISA to terminate any such Employee Plan; , (vD) no other event or condition has occurred that might constitute grounds under would be reasonably expected to subject the Company or any current or former ERISA Section 4042 for Affiliate of the termination ofCompany to any tax, fine, lien, penalty or other liability imposed by ERISA, the appointment of a trustee to administerCode or other Applicable Laws, any such Employee Plan; rules and regulations, (viE) all required premium payments required to have been made to the PBGC Pension Benefit Guaranty Corporation have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; paid, and (viiiF) the present value of all aggregate “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did does not exceed as the current value of such plan’s assets of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (cd) Within the last six (6) years, Neither the Company nor any ERISA Affiliate has not ever made or been required to make any contributions to any multiemployer plan Multiemployer Plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such plan. (de) During the six year period ending on the Closing Date, neither the Company nor any of its ERISA Affiliates has terminated or taken action to terminate, in part or in whole, any employee benefit plan that is subject to the provisions of Title IV of ERISA. (f) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter that it is so qualified, 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 Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Each Employee Plan (other than the Non-U.S. Employee Plans) has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulationsApplicable Laws, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no No events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, Code except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, administered in reasonable good faith compliance accordance with and meets the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, 409A except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. All contributions that are required to be made with respect to the Employee Plans have been made on a timely basis by the Company and all Subsidiaries in accordance with past practice and the recommended contribution in the applicable actuarial report and in accordance with ERISA and the Code as applicable. All insurance premiums with regard to the Employee Plans that are required to be made have been paid in full on a timely basis. (eg) Except with respect to agreements, arrangements or other instruments listed as set forth on Section 4.16(e5.17(g) of the Company Disclosure Schedule, with respect to each current or former employee or independent contractor of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e5.17(g) of the Company Disclosure Schedule lists all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) . Except with respect to agreements, arrangements or other instruments listed as set forth on Section 4.16(f5.17(g) of the Company Disclosure Schedule, neither there is no Employee Plan that, individually or collectively, could give rise to the Company nor payment of any amount that would not be deductible pursuant to the terms of its Subsidiaries has any liability in Section 280G or 162(m) of the Code. (h) With respect of post-retirement to each Employee Plan that provides health, medical or life insurance benefits for retired, (whether or not insured) with respect to employees or former employees (or current employees any of their beneficiaries) of the Company or any of its Subsidiaries except as required ERISA Affiliates after retirement or other termination of service, such Employee Plan may be terminated or amended to avoid excise tax under Section 4980B reduce benefits or limit the liability of the CodeCompany or any of its ERISA Affiliates, in each case, without material liability to the Company or any of its ERISA Affiliates on or at any time after the Effective Time. (gi) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 3031, 2006. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan2011. (hj) There is no action, suit, investigation, audit or proceeding (other than routine claims for benefits) pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyPlan. (ik) All material Non-U.S. Benefit Plans are listed on Section 5.17(k) of the Company Disclosure Schedule and comply in all material respects with their terms and Applicable Laws. (l) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (jm) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: , (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations BoardBoard and there are no questions concerning representation with respect to the employees of the Company or its Subsidiaries; and (iv) there are no grievances grievance or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective collection bargaining agreement. (kn) Except as set forth on Section 4.16(k) of Since the Company Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: effectuated (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.

Employees and Employee Benefit Plans. (a) Section 4.16 4.16(a) of the Company Disclosure Schedule contains a correct and complete list identifying each “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance or similar Contract, plan or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director employee or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policiespolicies and administrative service agreements) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) and tax return (Form 990) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect to each Neither the Company nor any ERISA Affiliate of the Company nor any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Plan which is a Multiemployer Plan, or is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue 430 of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be usedCode. (c) Within the last six (6) years, the Company has not made any contributions to any multiemployer plan (as defined in ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such plan. (d) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter that it is so qualified, 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 Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no No events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any material excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (ed) Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(e4.16(d)(1) of the Company Disclosure ScheduleSchedule and except as otherwise specifically so contemplated in this Agreement, with respect to each current or former employee or independent contractor of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, change in control payments or benefits, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there There is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e4.16(d)(2) of the Company Disclosure Schedule lists (i) all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this AgreementAgreement and (ii) the maximum aggregate amounts so payable to each such individual as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer). (fe) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code. (gf) There Except as may be required by Applicable Law, there has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 3031, 20062010. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no No condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (g) There are no Employee Plans that are subject to Section 409A of the Code. (h) There is no action, suit, investigation, audit or proceeding pending against or involving or, to To the knowledge of the Company, threatened against or involving, extent that any Employee Plan before has resulted in taxable income to any Governmental Authority that individual, whether through actual or constructive receipt, imputed income, or otherwise, the Company has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyproperly reported such income and has made all required withholding with respect thereto. (i) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (j) Except as set forth in Section 4.16(j4.16(g) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has in the past six years been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and to the Knowledge of the Company there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: , to the Knowledge of the Company, (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, or threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations BoardBoard and there are no questions concerning representation with respect to the employees of the Company or its Subsidiaries; and (iv) there are no grievances grievance or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective collection bargaining agreement. (kj) Except as set forth on Section 4.16(k) of Since the Company Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: effectuated (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law. The Company and all of its Subsidiaries are in material compliance with all laws respecting the employment of labor, including those laws relating to wages and hours, classification and treatment of employees and independent contractors, collective bargaining, equal employment, immigration, layoffs and workplace safety. To the Knowledge of the Company, neither the Company nor any of its Subsidiaries is delinquent in payments to any of its employees for any wages, salaries, commissions, bonuses or other direct compensation for any services performed for the Company and/or any of its Subsidiaries or amounts required to be reimbursed to such employees.

Employees and Employee Benefit Plans. (a) Section 4.16 of the Company Disclosure Schedule 5.13(a) contains a correct true and complete list identifying of each “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance or similar Contract, plan or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the material Company or any ERISA Affiliate of the Company and covers any employee, director or former employee or director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee PlansPlan.” (b) With Except as set forth on Schedule 5.13(b), each Company Plan complies in all material respects with ERISA, the Code and all other applicable Legal Requirements. The Companies have made available to the Buyer a copy (or written description with respect to any unwritten plan) of each Employee material Company Plan, and with respect to any Company Plan which is subject intended to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, be qualified within the meaning of ERISA Section 302 or Code Section 412 401(a), a copy of the current determination or opinion letter. None of any Company, any Company Subsidiary or any of their respective ERISA Affiliates maintains, contributes to, has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)including contingent liability) under each such Employee Plan did not exceed as of or, has, at any time during the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be used. (c) Within the last past six (6) years, maintained or contributed to any Multiemployer Plan (acknowledging that neither the Companies nor the Company Subsidiaries existed prior to November 15, 2012). None of the Company Plans is a pension plan (within the meaning of Section 3(2) of ERISA) that is subject to subject to Title IV of ERISA and none of the Companies, the Company Subsidiaries or any of their respective ERISA Affiliates maintains, contributes to, has not made any contributions liability (including contingent liability) under or has, at any time during the past six (6) years maintained or contributed to (i) any multiemployer plan that is subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA, (ii) any multiple employer plan subject to Section 4063 or 4064 of ERISA, or (iii) any multiple employer welfare arrangement (as defined in ERISA Section 3(373(40)(A) or 4001(a)(3)), of ERISA) (acknowledging that neither the Companies nor the Company Subsidiaries existed prior to November 15, 2012). (c) Each Company Plan that is intended to be qualified within the meaning of Code Section 401(a) is so qualified, has not been received a member currently effective favorable determination or opinion letter from the IRS as to its qualification, and, to the knowledge of a controlled group which contributed the Companies, nothing has occurred and no circumstances exist that would reasonably be expected to any cause the loss of such plan, and the Company has not been under common control with an employer which contributed to any such planqualification. (d) Each Employee Plan which is intended to be qualified under Section 401(a) None of the Code Specified Entities or its ERISA Affiliates (excluding the Companies and the Company Subsidiaries) maintains, sponsors, contributes to, has received a favorable determination letter that it is so qualifiedan obligation to contribute to, or has pending any liability (including contingent liability) with respect to, or during the past six (6) years has time remaining in which maintained, sponsored, contributed to, had an obligation to filecontribute to or had any liability (including contingent liability) with respect to, an application for such determination from the Internal Revenue Serviceany Benefit Plan, 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 Parent prior to date of this Agreement copies none of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To Specified Entities currently or during the knowledge of the Company, each Employee Plan past six (6) years has been maintained in substantial compliance with its terms and with the requirements prescribed by employed any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Companyemployees. (e) Except No Company Benefit Plan provides for welfare benefits after termination of employment to any employee (or dependent thereof) other than as required by COBRA, and, to the knowledge of the Companies, the Companies, the Company Subsidiaries and their respective ERISA Affiliates have complied in all material respects with COBRA. There is no pending or, to the knowledge of the Companies, threatened material claim in respect to agreements, arrangements or other instruments listed on Section 4.16(e) of any of the Company Disclosure SchedulePlans other than claims for benefits in the ordinary course of business. (f) Except as set forth on Schedule 5.13(f), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will not, Closing would reasonably be expected to (either alone or together in combination with another event, other than any other event: event resulting from action taken by or at the direction of the Buyer) result in (i) entitle any such person current or former employee, director, consultant or independent contractor becoming entitled to severance paypay or any increase in severance pay upon any termination of employment of such employee, bonus amountsdirector, retirement benefits, job security benefits consultant or similar benefitsindependent contractor after the date of this Agreement, (ii) trigger any payment, compensation or accelerate benefit becoming due from any Company or any Company Subsidiary, or an increase in the amount of any payment, compensation or benefit due from any Company or any Company Subsidiary, to any current or former employee, director, consultant or independent contractor or (iii) the acceleration of the time of payment or vesting or require any funding (through a grantor trust or otherwise) of any compensation or benefits payable to due or owed by any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any Company Subsidiary to any current or former employee, director, consultant or independent contractor. No amount paid or payable (whether in cash, in property, or in the form of its Subsidiaries thatbenefits) to any current or former employee, individually director, consultant or collectively, could give rise to independent contractor in connection with the payment of transactions contemplated hereby (either alone or in connection with any amount that would not other event) will be deductible pursuant to an “excess parachute payment” within the terms meaning of Section 280G or 162(m) of the Code. Section 4.16(e) of the Company Disclosure Schedule lists all agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code. (g) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 30, 2006. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (h) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (i) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and as would not reasonably be expected to have, individually or result in the aggregate, a Material Adverse Effect on material liability to the Company, any Company Subsidiary or any employee of the Companies or any Company Subsidiary, each Company Plan that constitutes a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has, with respect to each such employee, at all times been operated and maintained in all respects in accordance with the requirements of Section 409A of the Code. (jh) Except as set forth in Section 4.16(jon Schedule 5.13(h), there are no charges, claims, actions or legal proceedings pending, or to the knowledge of the Companies, threatened against any Company or any Company Subsidiary (other than audits or investigations) with respect to any of the Retained Employees, including any labor or employment disputes or controversies or unfair labor practice charges, health or safety related charges, claims, actions, or legal proceedings with respect to any of the Retained Employees. (i) Neither the Companies nor any of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is or has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and to the knowledge of the Companies there is not and there has not been any activity or proceeding of any labor organization or employee group (or representative thereof) to organize any such employees. In addition: (i) there are no unfair labor practice charges or complaints against the employees of any Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are Company Subsidiary. There is no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the CompanyCompanies, threatened against dispute or affecting controversy with a union or with respect to unionization or collective bargaining involving the employees of the Company and the Company Subsidiaries. To the knowledge of the Companies, the Companies and the Company Subsidiaries are not affected in any material respect by any dispute or controversy with a union or with respect to unionization or collective bargaining involving any supplier of the Companies or any Company Subsidiary. The consent or consultation of, or the rendering of formal advice by, any labor or trade union, works council or other employee representative body is not required for the Companies to enter into this Agreement or to consummate any of the transactions contemplated hereby. (j) During the 90-day period ending on the date immediately preceding the date of this Agreement, not more than ten (10) employees of any Company or any Company Subsidiary and their Subsidiaries have suffered an “employment loss” for purposes of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations Board; and (iv) there are no grievances or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective bargaining agreementWARN. (k) Except as The representations and warranties set forth on in this Section 4.16(k) of 5.13 and in Sections 5.5, 5.7, 5.10 and 5.11, are the Company Disclosure Schedule, since exclusive representations and warranties made by the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number Companies with respect to trigger application of any similar state or local lawERISA and employee benefit matters.

Employees and Employee Benefit Plans. (a) Section 4.16 of the Company Disclosure Schedule contains a correct and complete list identifying each “employee benefit plan,” as defined in Section 3(3) of ERISA, each employment, severance or similar Contract, plan or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangements), health or medical benefits, employee assistance program, disability or sick leave benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) or other form of benefits which is maintained, administered or contributed to by the Company or any ERISA Affiliate of the Company and covers any employee, director or director, former employee or former director of the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has any liability. Copies of such plans (and, if applicable, related trust or funding agreements or insurance policies) and all amendments thereto and written interpretations thereof have been furnished to Parent together with the most recent annual report (Form 5500 including, if applicable, Schedule B thereto) prepared in connection with any such plan or trust. Such plans are referred to collectively herein as the “Employee Plans.” (b) With respect to each Other than a Multiemployer Plan, neither the Company nor any ERISA Affiliate of the Company nor any predecessor thereof sponsors, maintains or contributes to, or has in the past sponsored, maintained or contributed to, any Employee Plan which is subject to the provisions of Title IV of ERISA in which the Company participates or has participated, (i) no accumulated funding deficiency, if applicable, within the meaning of ERISA Section 302 or Code Section 412 has been incurred, whether or not waived; (ii) the Company does not have any liability (A) for any lien imposed under ERISA Section 302(f) or Code Section 412(n), (B) for any interest payments required under ERISA Section 302 (e) or Code Section 412(m), (C) for any excise tax imposed by Code Sections 4971, 4972, or 4979, or (D) for any minimum funding contributions under ERISA Section 302(c)(11) or Code Section 412(c)(11); (iii) the Company has not withdrawn from any such Employee Plan during a plan year in which it was a “substantial employer” (as defined in ERISA Section 4001(a)(2)); (iv) the PBGC has not instituted proceedings or threatened to institute proceedings to terminate any such Employee Plan; (v) no other event or condition has occurred that might constitute grounds under ERISA Section 4042 for the termination of, or the appointment of a trustee to administer, any such Employee Plan; (vi) all required premium payments to the PBGC have been paid when due; (vii) no “reportable event” (as described in ERISA Section 4043 and the regulations thereunder) has occurred or will occur by virtue of the consummation of the transaction contemplated by this Agreement except for a reportable event for which the notice requirement has been waived by the PBGC; and (viii) the present value of all “benefit liabilities” (whether or not vested) (as defined in ERISA Section 4001(a)(16)) under each such Employee Plan did not exceed as of the most recent Employee Plan actuarial valuation date, the then current value of the assets of such Employee Plan as determined pursuant to Code Section 412. For purposes of determining the present value of benefit liabilities under any such Employee Plan, the actuarial assumptions and methods used under such Employee Plan for the most recent Employee Plan actuarial valuation shall be usedERISA. (c) Within To the last six (6) yearsknowledge of the Company, no condition exists that could present a material risk of complete or partial withdrawal from any Multiemployer Plan which could result in the Company, any Subsidiary or any ERISA Affiliate of any of them incurring a withdrawal liability within the meaning of Section 4201 of ERISA, and if a complete withdrawal by the Company has not made and all of its ERISA Affiliates were to occur as of the Closing Date with respect to all Multiemployer Plans, none of the Company, any contributions to Subsidiary or any multiemployer plan (as defined in of their ERISA Section 3(37) or 4001(a)(3)), the Company has not been a member Affiliates would incur any material withdrawal liability under Title IV of a controlled group which contributed to any such plan, and the Company has not been under common control with an employer which contributed to any such planERISA. (d) Each Employee Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter that it is so qualified, 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 Parent prior to date of this Agreement copies of the most recent Internal Revenue Service determination letters with respect to each such Employee Plan. To the knowledge of the Company, each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Employee Plan, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. To the knowledge of the Company, no events have occurred with respect to any Employee Plan that could result in payment or assessment by or against the Company of any excise taxes under Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E or 5000 of the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each Employee Plan which provides “nonqualified deferred compensation” as defined in Code Section 409A has been operated since January 1, 2005, in reasonable good faith compliance with the requirements of Code Section 409A. All contributions to the Employee Plans have been made on a timely basis in accordance with ERISA and the Code, except for failures to comply or violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (e) Except with respect to agreements, arrangements or other instruments listed on as set forth in Section 4.16(e) of the Company Disclosure Schedule, with respect to each current or former employee or independent contractor of the Company or any of its Subsidiaries, the consummation of the transactions contemplated by this Agreement will not, either alone or together with any other event: (i) entitle any such person to severance pay, bonus amounts, retirement benefits, job security benefits or similar benefits, (ii) trigger or accelerate the time of payment or funding (through a grantor trust or otherwise) of any compensation or benefits payable to any such person, (iii) accelerate the vesting of any compensation or benefits of any such person (including any stock options or other equity-based awards, any incentive compensation or any deferred compensation entitlement) or (iv) trigger any other material obligation to any such person. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(e) of the Company Disclosure Schedule, there There is no Contract or plan (written or otherwise) covering any employee or former employee of the Company or any of its Subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G or 162(m) of the Code. Section 4.16(e) of the Company Disclosure Schedule lists all the agreements, arrangements and other instruments which give rise to an obligation to make or set aside amounts payable to or on behalf of the officers of the Company and its Subsidiaries as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination (whether by the Company or the officer), true and complete copies of which have been provided to Parent prior to the date of this Agreement. (f) Except with respect to agreements, arrangements or other instruments listed on Section 4.16(f) of the Company Disclosure Schedule, neither Neither the Company nor any of its Subsidiaries has any liability in respect of post-retirement health, medical or life insurance benefits for retired, former or current employees of the Company or its Subsidiaries except as required to avoid excise tax under Section 4980B of the Code. (g) There has been no amendment to, written interpretation or announcement (whether or not written) by the Company or any of its Affiliates relating to, or change in employee participation or coverage under, an Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of the expense incurred in respect thereof for the fiscal year ended December 3031, 20062005. Except with respect to agreements, arrangements or other instruments listed on Section 4.16(g) of the Company Disclosure Schedule, no No condition exists that would prevent the Company from amending or terminating any Employee Plan without liability, other than the obligation for ordinary benefits accrued prior to the termination of such plan. (h) There is no action, suit, investigation, audit or proceeding pending against or involving or, to the knowledge of the Company, threatened against or involving, any Employee Plan before any Governmental Authority that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the CompanyAuthority. (i) The Company and its Subsidiaries have complied with all Applicable Laws relating to labor and employment, including those relating to wages, hours, collective bargaining, unemployment compensation, worker’s compensation, equal employment opportunity, age and disability discrimination, immigration control, employee classification, information privacy and security, payment and withholding of taxes, and continuation coverage with respect to group health plans, except for failures to comply that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. (j) Except as set forth in Section 4.16(j) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has been a party to or subject to, or is currently negotiating in connection with entering into, any collective bargaining agreement or other labor agreement with any union or labor organization, and there has not been any activity or proceeding of any labor organization or employee group to organize any such employees. In addition: , (i) there are no unfair labor practice charges or complaints against the Company or any of its Subsidiaries pending before the National Labor Relations Board; (ii) there are no labor strikes, slowdowns or stoppages actually pending or, to the knowledge of the Company, or threatened against or affecting the Company or any of its Subsidiaries; (iii) there are no representation claims or petitions pending before the National Labor Relations BoardBoard and there are no questions concerning representation with respect to the employees of the Company or its Subsidiaries; and (iv) there are no grievances grievance or pending arbitration proceedings against the Company or any of its Subsidiaries that arose out of or under any collective collection bargaining agreement. (k) Except as set forth on Section 4.16(k) of the Company Disclosure Schedule, since Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has effectuated: effectuated (i) a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment or facility of the Company or any of its Subsidiaries; (ii) a “mass layoff” (as defined in the WARN Act); or (iii) such other transaction, layoff, reduction in force or employment terminations sufficient in number to trigger application of any similar state or local law.