Common use of Employees and Related Agreements; ERISA Clause in Contracts

Employees and Related Agreements; ERISA. (a) Disclosure Letter Schedule 5.13(A) sets forth a list of each material retirement, savings, thrift, deferred compensation, severance, stock ownership, stock purchase, stock option, performance, bonus, incentive, vacation or holiday pay, hospitalization or other medical, disability, life or other insurance, or other welfare, retiree welfare or benefit plan, policy, trust, understanding or arrangement of any kind, whether written or oral, whether or not subject to ERISA, to which Parent or Seller, with respect to the Business, is a party or by which it is bound or pursuant to which it may be required to make any payment at any time, other than plans of the type described in Section 5.13(d) and those plans or arrangements for which Parent or Seller no longer has any obligation (“Seller’s Plans”). (b) Disclosure Letter Schedule 5.13(B) sets forth a list of each (i) employee collective bargaining agreement and (ii) material agreement, promissory note, commitment, understanding, plan, policy or arrangement of any kind, whether written or oral, with or for the benefit of any Employee (including each employment, compensation, deferred compensation, severance, supplemental pension, life insurance, termination or consulting agreement or arrangement and any agreements or arrangements associated with a change in control), to which Parent or Seller, with respect to the Business, is a party or by which it is bound or pursuant to which it may be required to make any payment at any time, other than Seller’s Plans and those agreements for which Parent or Seller no longer has any obligation (“Seller’s Compensation Commitments”). (c) Seller has made available to Buyer correct and complete copies of all written Seller’s Plans and Seller’s Compensation Commitments and of all related material insurance and annuity policies and contracts and other documents with respect to each Seller’s Plan and Seller’s Compensation Commitment. To the Knowledge of Seller, Disclosure Letter Schedules 5.13(A) and 5.13(B) contain a description of all material oral Seller’s Plans and Seller’s Compensation Commitments. (d) To the Knowledge of Seller, Seller has never been required to contribute to any “multiemployer plan” (as such term is defined in Section 3(37) of ERISA) with respect to the Business. (e) Except as set forth in Disclosure Letter Schedule 5.13(E), each Seller’s Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS that such Plan is so qualified under the Code; and to the Knowledge of Seller no circumstance exists which might cause such Plan to cease being so qualified. (f) Each Seller’s Plan materially complies, and has been administered to comply, with all Requirements of Law, and there has been no notice issued by any Governmental Body questioning or challenging such compliance, and there are no material actions, suits or claims (other than routine claims for benefits) pending or, to the Knowledge of Seller, threatened involving any such Plan or the assets of any such Plan. (g) Seller has no material obligations under any of Seller’s Plans, Seller’s Compensation Commitments or otherwise to provide health or death benefits to Employees, except as specifically required by the continuation requirements of Part 6 of Title I of ERISA. (h) Seller, with respect to the Business, has no material liability of any kind whatsoever, whether direct, indirect, contingent or otherwise, on account of (i) any violation of the health care requirements of Part 6 of Title I of ERISA or Section 4980B of the Code, (ii) under Section 502(i) or Section 502(l) of ERISA or Section 4975 of the Code, (iii) under Section 302 of ERISA or Section 412 of the Code or (iv) under Title IV of ERISA. (i) Disclosure Letter Schedule 5.13(I) contains: (i) a list of all Employees; (ii) the then current annual compensation of, and a description of the fringe benefits (other than those generally available to Employees) provided by Seller to any Employees; and (iii) a list of any increase, effective after December 31, 2006, in the rate of compensation of any Employees. (j) Following the Closing Date, pursuant to any agreement or arrangement entered into by Seller or any Affiliate thereof on or prior to the Closing Date, Buyer will not be obligated to make a payment to an individual that would be a “parachute payment” to a “disqualified individual” as those terms are defined in Section 280G of the Code, without regard to whether such payment is reasonable compensation or personal services performed or to be performed in the future.

Employees and Related Agreements; ERISA. (a) Disclosure Letter Schedule 5.13(A5.18(a) sets forth a list of each material retirement, savings, thrift, deferred compensation, severance, stock ownership, stock purchase, stock option, performance, bonus, incentive, vacation or holiday pay, hospitalization or other medical, disability, life or other insurance, or other welfare, retiree welfare or benefit plan, policy, trust, understanding or arrangement of any kind, whether written or oral, whether or not subject to ERISA, to which Parent or Seller, with respect to the Business, either Seller is a party or by which it is bound or pursuant to which it may be required to make any payment at any time, other than plans of the type described in Section 5.13(d5.18(d) and those plans or arrangements for which Parent or Seller no longer has any obligation (“Seller’s Non-ERISA Plans”). (b) Disclosure Letter Schedule 5.13(B5.18(b) sets forth a list of each (i) employee collective bargaining agreement and (ii) material agreement, promissory note, commitment, understanding, plan, policy or arrangement of any kind, whether written or oral, with or for the benefit of any Employee current or former officer, director, employee, subcontractor or consultant (including each employment, compensation, deferred compensation, severance, supplemental pension, life insurance, termination or consulting agreement or arrangement and any agreements or arrangements associated with a change in control), to which Parent or Seller, with respect to the Business, either Seller is a party or by which it is bound or pursuant to which it may be required to make any payment at any time, other than either Seller’s Non-ERISA Plans and those agreements for which Parent or Seller no longer has any obligation other than plans of the type described in Section 5.18(d) (“Seller’s Compensation Commitments”). (c) Seller has made available to Buyer correct and complete copies Copies of all written Seller’s Non-ERISA Plans and Seller’s Compensation Commitments and of all related material insurance and annuity policies and contracts and other documents with respect to each Seller’s Non-ERISA Plan and Seller’s Compensation CommitmentCommitment have been made available or delivered to Buyer. To the Knowledge of Seller, Disclosure Letter Schedules 5.13(A5.18(a) and 5.13(B5.18(b) contain a description of all material oral Seller’s Non-ERISA Plans and Seller’s Compensation Commitments. (d) To the Knowledge Schedule 5.18(d) sets forth a list of Seller, Seller has never been required to contribute to any each “multiemployer employee pension benefit plan” (as such term is defined in Section 3(373(2) of ERISA) with respect and each “employee welfare benefit plan” (as such term is defined in Section 3(1) of ERISA) covering any employee or former employee of either Seller (collectively, “Seller’s ERISA Plans”). Except as set forth in Schedule 5.18(d), (i) neither Seller has ever maintained any employee pension benefit plan and (ii) neither Seller has ever been required to the Businesscontribute to any “multiemployer plan”. Neither Seller has ever maintained an ERISA Plan which is a defined benefit plan (as such term is defined in Section 3(35) of ERISA). (e) Except as set forth in Disclosure Letter Schedule 5.13(E), each Each Seller’s ERISA Plan has been operated and administered in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA and the Code. (f) Each Seller’s ERISA Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS that such Plan is so qualified under the Code; and to the Knowledge of Seller no circumstance exists which might cause such Plan to cease being so qualified. (f) Each Seller’s Plan materially complies, and has been administered to comply, with all Requirements of Law, and there has been no notice issued by any Governmental Body questioning or challenging such compliance, and there are no material actions, suits or claims (other than routine claims for benefits) pending or, to the Knowledge of Seller, threatened involving any such Plan or the assets of any such Plan. (g) Neither Seller has no material any obligations under any of Seller’s Non-ERISA Plans, Seller’s Compensation Commitments or Seller’s ERISA Plans or otherwise to provide health or death benefits to Employeesor in respect of former employees of Seller, except as specifically required by the continuation requirements of Part 6 of Title I of ERISA. (h) Seller, with respect to the Business, Neither Seller has no material any liability of any kind whatsoever, whether direct, indirect, contingent or otherwise, on account of (i) any violation of the health care requirements of Part 6 of Title I of ERISA or Section 4980B of the Code, (ii) under Section 502(i) or Section 502(l) of ERISA or Section 4975 of the Code, (iii) under Section 302 of ERISA or Section 412 of the Code or (iv) under Title IV of ERISA. (i) Disclosure Letter Schedule 5.13(I5.18(i) contains: (i) a list of all Employeesemployees of either Seller as of January 1, 2005; (ii) the positions, service dates and, if any, leave status (including a designation, if applicable, of the type of leave and whether the leave is paid or unpaid) of each such employee; (iii) the then current annual compensation of, and a description of the fringe benefits (other than those generally available to Employeesemployees of such Seller) provided by either Seller to any Employeessuch employees; and (iiiiv) a list of all present or former employees of either Seller paid in excess of $25,000 in calendar year 2004 who have terminated or given notice of their intention to terminate their relationship with either Seller since January 1, 2004; (v) a list of any increase, effective after December 31January 1, 20062004, in the rate of compensation of any Employeesemployees or commission salespersons; and (vi) a list of all substantial changes in job assignments of, or arrangements with, or promotions or appointments of, any employees or commission salespersons whose compensation as of January 1, 2004 was in excess of $25,000 per annum. (j) Following Except as set forth in Schedule 5.18(j), (i) to the Closing Dateknowledge of Sellers, pursuant neither Seller is involved in any transaction or other situation with any employee, officer, director or Affiliate of either Seller which may be generally characterized as a “conflict of interest”, including direct or indirect interests in the business of competitors, suppliers or customers of either Seller, and (ii) there are no situations with respect to the Business which involved or involves (A) the use of any agreement corporate funds for unlawful contributions, gifts, entertainment or arrangement entered into by Seller other unlawful expenses related to political activity; (B) the making of any direct or indirect unlawful payments to government officials or others from corporate funds or the establishment or maintenance of any unlawful or unrecorded funds; (C) the violation of any of the provisions of The Foreign Corrupt Practices Act of 1977, or any Affiliate thereof on rules or prior to regulations promulgated thereunder; or (D) the Closing Date, Buyer will not be obligated to make a payment to an individual that would be a “parachute payment” to a “disqualified individual” as those terms are defined in Section 280G receipt of any illegal discounts or rebates or any other violation of the Code, without regard to whether such payment is reasonable compensation or personal services performed or to be performed in the futureantitrust laws.

Employees and Related Agreements; ERISA. (a) Disclosure Letter Schedule 5.13(A5.18(A) sets forth a list of each material retirement, savings, thrift, deferred compensation, severance, stock ownership, stock purchase, stock option, performance, bonus, incentive, vacation or holiday pay, hospitalization or other medical, disability, life or other insurance, or other welfare, retiree welfare or benefit plan, policy, trust, understanding or arrangement of any kind, whether written or oral, whether or not subject to ERISA, to which Parent or Seller, with respect to the Business, Seller is a party or by which it is bound or pursuant to which it may be required to make any payment at any time, other than plans of the type described in Section 5.13(d5.18(d) and those plans or arrangements for which Parent or Seller no longer has any obligation (“"Seller’s 's Non-ERISA Plans”"). (b) Disclosure Letter Schedule 5.13(B5.18(B) sets forth a list of each (i) employee collective bargaining agreement agreement, and (ii) material agreement, promissory note, commitment, understanding, plan, policy or arrangement of any kind, whether written or oral, with or for the benefit of any Employee current or former officer, director, employee, subcontractor or consultant (including each employment, compensation, deferred compensation, severance, supplemental pension, life insurance, termination or consulting agreement or arrangement and any agreements or arrangements associated with a change in control), to which Parent or Seller, with respect to the Business, Seller is a party or by which it is bound or pursuant to which it may be required to make any payment at any time, other than Seller’s 's Non-ERISA Plans and those agreements for which Parent or Seller no longer has any obligation other than plans of the type described in Section 5.18(d) (“"Seller’s 's Compensation Commitments”"). (c) Seller has made available to Buyer correct and complete copies Copies of all written Seller’s 's Non-ERISA Plans and Seller’s 's Compensation Commitments and of all related material insurance and annuity policies and contracts and other documents with respect to each Seller’s 's Non-ERISA Plan and Seller’s 's Compensation CommitmentCommitment have been delivered to Buyer. To the Knowledge of Seller, Disclosure Letter Schedules 5.13(A5.18(A) and 5.13(B5.18(B) contain a description of all material oral Seller’s 's Non-ERISA Plans and Seller’s 's Compensation Commitments. (d) To the Knowledge Schedule 5.18(D) sets forth a list of each "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA) and each "employee welfare benefit plan" (as such term is defined in Section 3(1) of ERISA) covering any employee or former employee of Seller (collectively, "Seller's ERISA Plans"). Except as set forth in Schedule 5.18(D), (i) Seller has never maintained any employee pension benefit plan and (ii) Seller has never been required to contribute to any “"multiemployer plan” (as such term is defined in Section 3(37) of ERISA) with respect to the Business." (e) Except as set forth in Disclosure Letter Schedule 5.13(E)Seller has delivered to Buyer, with respect to each Seller’s 's ERISA Plan, correct and complete copies, where applicable, of (i) all plan documents and amendments, trust agreements and insurance and annuity contracts and policies, (ii) the most recent IRS determination letter, (iii) the Annual Reports (Form 5500 Series) and accompanying schedules and actuarial reports, as filed, for the most recently completed three plan years, (iv) the summary plan description currently in use and any other summary plan description in use at any time since January 1, 1997 and (v) copies of correspondence from the IRS, the Department of Labor or the Pension Benefit Guaranty Corporation regarding any plan audit or investigation or any intent to conduct a plan audit. (f) Each Seller's ERISA Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS that such Plan is so qualified under the Code; and to the Knowledge of Seller no circumstance exists which might cause such Plan to cease being so qualified. (fg) Each Seller’s 's ERISA Plan materially complies, and has been administered to comply, with all Requirements of Law, and there has been no notice issued by any Governmental Body questioning or challenging such compliance, and there are no material actions, suits or claims (other than routine claims for benefits) pending or, to the Knowledge knowledge of SellerParent, Seller or any Shareholder, threatened involving any such Plan or the assets of any such Plan. (gh) Seller has no material obligations under any of Seller’s 's Non-ERISA Plans, Seller’s 's Compensation Commitments or Seller's ERISA Plans or otherwise to provide health or death benefits to Employeesor in respect of former employees of Seller, except as specifically required by the continuation requirements of Part 6 of Title I of ERISA. (hi) Seller, with respect to the Business, Seller has no material liability of any kind whatsoever, whether direct, indirect, contingent or otherwise, on account of (i) any violation of the health care requirements of Part 6 of Title I of ERISA or Section 4980B of the Code, (ii) under Section 502(i) or Section 502(l) of ERISA or Section 4975 of the Code, (iii) under Section 302 of ERISA or Section 412 of the Code or (iv) under Title IV of ERISA. Assuming that each of Seller's ERISA Benefit Plans which is subject to Title IV of ERISA were terminated as of the Closing Date, Seller would have no liability under Title IV of ERISA as a result of such termination. (ij) Disclosure Letter Schedule 5.13(I5.18(J) contains: (i) a list of all Employeesemployees of the Seller as of January 1, 2002; (ii) the then current annual compensation of, and a description of the fringe benefits (other than those generally available to Employeesemployees of Seller) provided by Seller to any Employeessuch employees; and (iii) a list of all present or former employees of Seller paid in excess of $50,000 in calendar year 2001 who have terminated or given notice of their intention to terminate their relationship with Seller since January 1, 2001; (iv) a list of any increase, effective after December 31January 1, 20062002, in the rate of compensation of any Employeesemployees or commission salespersons; and (v) a list of all substantial changes in job assignments of, or arrangements with, or promotions or appointments of, any employees or commission salespersons whose compensation as of January 1, 2002 was in excess of $50,000 per annum. (jk) Following Except as set forth in Schedule 5.18(K), (i) to the Closing Dateknowledge of Parent, pursuant Seller and any Shareholder, Seller is not involved in any transaction or other situation with any employee, officer, director or Affiliate of Seller which may be generally characterized as a "conflict of interest", including direct or indirect interests in the business of competitors, suppliers or customers of Seller (other than ownership of not in excess of 2% of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on the NASDAQ national market, so long as such ownership does not constitute practical or legal control of such corporation), and (ii) there are no situations with respect to the Business which involved or involves (A) the use of any agreement corporate funds for unlawful contributions, gifts, entertainment or arrangement entered into by Seller other unlawful expenses related to political activity; (B) the making of any direct or indirect unlawful payments to government officials or others from corporate funds or the establishment or maintenance of any unlawful or unrecorded funds; (C) the violation of any of the provisions of The Foreign Corrupt Practices Act of 1977, or any Affiliate thereof on rules or prior to regulations promulgated thereunder; or (D) the Closing Date, Buyer will not be obligated to make a payment to an individual that would be a “parachute payment” to a “disqualified individual” as those terms are defined in Section 280G receipt of any illegal discounts or rebates or any other violation of the Code, without regard to whether such payment is reasonable compensation or personal services performed or to be performed in the futureantitrust laws.

Employees and Related Agreements; ERISA. (a) Disclosure Letter Schedule 5.13(A5.18(a) sets forth a list of each material retirement, savings, thrift, deferred compensation, severance, stock ownership, stock purchase, stock option, performance, bonus, incentive, vacation or holiday pay, hospitalization or other medical, disability, life or other insurance, or other welfare, retiree welfare or benefit plan, policy, trust, understanding or arrangement of any kind, whether written or oral, whether or not subject to ERISA, to which Parent or Seller, with respect to the Business, Seller is a party or by which it is bound or pursuant to which it may be required to make any payment at any time, other than plans of the type described in Section 5.13(d5.18(d) and those plans or arrangements for which Parent or Seller no longer has any obligation (“Seller’s Sellers’ Non-ERISA Plans”). (b) Disclosure Letter Schedule 5.13(B5.18(b) sets forth a list of each (i) employee collective bargaining agreement agreement, and (ii) material agreement, promissory note, commitment, understanding, plan, policy or arrangement of any kind, whether written or oral, with or for the benefit of any Employee current or former officer, director, employee, subcontractor or consultant (including each employment, compensation, deferred compensation, severance, supplemental pension, life insurance, termination or consulting agreement or arrangement and any agreements or arrangements associated with a change in control), to which Parent or Seller, with respect to the Business, Seller is a party or by which it is bound or pursuant to which it may be required to make any payment at any time, other than Seller’s Sellers’ Non-ERISA Plans and those agreements for which Parent or Seller no longer has any obligation other than plans of the type described in Section 5.18(d) (“Seller’s Sellers’ Compensation Commitments”). (c) Seller has made available to Buyer correct and complete copies Copies of all written Seller’s Non-ERISA Plans and Seller’s Sellers’ Compensation Commitments and of all related material insurance and annuity policies and contracts and other documents with respect to each Seller’s Sellers’ Non-ERISA Plan and Seller’s Compensation CommitmentCommitment have been delivered or made available to Buyer. To the Knowledge of Seller, Disclosure Letter Schedules 5.13(A5.18(a) and 5.13(B) 5.18(b), respectively, contain a description of all material oral Seller’s Sellers’ Non-ERISA Plans and Seller’s Compensation Commitments. (d) To the Knowledge Schedule 5.18(d) sets forth a list of Sellereach “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA) and each “employee welfare benefit plan” (as such term is defined in Section 3(1) of ERISA) covering any employee or former employee of Seller (collectively, “Sellers’ ERISA Plans”). Except as set forth in Schedule 5.18(d), (i) Seller has never maintained any employee pension benefit plan and (ii) Seller has never been required to contribute to any “multiemployer plan” (as such term is defined in Section 3(37) of ERISA) with respect to the Business). (e) Except Seller has delivered or made available to Buyer, with respect to each Sellers’ ERISA Plan, correct and complete copies, where applicable, of (i) all plan documents and amendments, trust agreements and insurance and annuity contracts and policies, (ii) with respect to any ERISA Plan designed to comply with Section 401(a) of the Code, the most recent IRS determination letter, (iii) the Annual Reports (Form 5500 Series) and accompanying schedules and actuarial reports, as set forth filed, for the most recently completed three plan years, (iv) the summary plan description currently in Disclosure Letter Schedule 5.13(E)use and any other summary plan description in use at any time since January 1, each Seller’s 2003, (v) discrimination testing reports performed during the last two plan years and a description of any corrective action taken in response to any such reports and (vi) copies of correspondence from the IRS, the Department of Labor or the Pension Benefit Guaranty Corporation regarding any plan audit or investigation or any intent to conduct a plan audit or investigation. (f) Each Sellers’ ERISA Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS that such Plan is so qualified under the Code; and to the Knowledge of Seller Sellers, no circumstance exists which that might cause such Plan to cease being so qualified. (fg) Each Seller’s Sellers’ ERISA Plan materially compliescomplies in all material respects, and has been administered to complycomply in all material respects, with all Requirements of Law, and there has been no notice issued by any Governmental Body questioning or challenging such compliance, and there are no material actions, suits or claims (other than routine claims for benefits) pending or, to the Knowledge of Seller, threatened involving any such Plan or the assets of any such Plan. (gh) Seller has no material obligations under any of Seller’s Sellers’ Non-ERISA Plans, Seller’s Compensation Commitments or Sellers’ ERISA Plans or otherwise to provide health or death benefits to Employeesor in respect of former employees of Seller, except as specifically required by the continuation requirements of Part 6 of Title I of ERISA. (hi) Seller, with respect to the Business, Seller has no material liability of any kind whatsoever, whether direct, indirect, contingent or otherwise, (i) on account of (i) any violation of the health care requirements of Part 6 of Title I of ERISA or Section 4980B of the Code, (ii) under Section 502(i) or Section 502(l) of ERISA or Section 4975 of the Code, (iii) under Section 302 of ERISA or Section 412 of the Code or (iv) under Title IV of ERISA. Assuming that each of Seller’s ERISA Benefit Plans that is subject to Title IV of ERISA were terminated as of the Closing Date, Seller would have no liability under Title IV of ERISA as a result of such termination. (ij) Disclosure Letter Schedule 5.13(I5.18(j) contains: (i) a list of all Employeesemployees of each Seller as of January 1, 2006; (ii) the positions, service dates, position dates, and, if any, leave status (including a designation, if applicable, of the type of leave and whether the leave is paid or unpaid) of each such employee; (iii) the then current annual compensation of, and a description of the fringe benefits (other than those generally available to Employeesemployees of each Seller) provided by each Seller to any Employeessuch employees; and (iiiiv) a list of all present or former employees of each Seller paid in excess of $50,000 in calendar year 2005 who have terminated or given notice of their intention to terminate their relationship with any Seller since January 1, 2006; (v) a list of any increase, effective after December 31January 1, 2006, in the rate of compensation of any Employeesemployees or commission salespersons; and (vi) a list of all substantial changes in job assignments of, or arrangements with, or promotions or appointments of, any employees or commission salespersons whose compensation as of January 1, 2006 was in excess of $50,000 per annum. (jk) Following Except as set forth in Schedule 5.18(k), (i) to the Closing DateKnowledge of Sellers, pursuant no employee, officer, director or Affiliate of any Seller has any direct or indirect interests in the business of competitors, suppliers or customers of any Seller, and (ii) there are no situations with respect to the Business that involved or involves (A) the use of any agreement corporate funds for unlawful contributions, gifts, entertainment or arrangement entered into by Seller other unlawful expenses related to political activity; (B) the making of any direct or indirect unlawful payments to government officials or others from corporate funds or the establishment or maintenance of any unlawful or unrecorded funds; (C) the violation of any of the provisions of The Foreign Corrupt Practices Act of 1977, or any Affiliate thereof on rules or prior to regulations promulgated thereunder; or (D) the Closing Date, Buyer will not be obligated to make a payment to an individual that would be a “parachute payment” to a “disqualified individual” as those terms are defined in Section 280G receipt of any illegal discounts or rebates or any other violation of the Code, without regard to whether such payment is reasonable compensation or personal services performed or to be performed in the futureantitrust laws.