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

Employees; Employee Benefit Plans; ERISA. (a) Except as set forth on Schedule 3.15(a), there is no (i) collective bargaining agreement or any other agreement with any labor organization to which B2B is a party applicable to the employees of B2B; (ii) unfair labor practice complaint or charge pending or, to B2B's knowledge, threatened against B2B before the National Labor Relations Board or any other federal, state, local or foreign agency; (iii) pending or, to B2B's knowledge, threatened strike, slowdown, work stoppage, lockout or other collective labor action by or with respect to any employees of B2B; (iv) grievance, unfair dismissal or arbitration proceeding pending against B2B; (v) pending or, to B2B's knowledge, threatened complaint, charge, lawsuit or other proceeding against B2B by employees of B2B alleging discrimination, (vi) pending or, to B2B's knowledge, threatened representation question or union organizing activities with respect to any employees of B2B; (vii) pending or, to B2B's knowledge, threatened notice of the intent of any federal, state, local or foreign agency responsible for the enforcement of labor or employment Laws, including, but not limited to, occupational safety and health, to conduct an investigation and no such investigation is in progress with respect to any employees of B2B; (viii) complaint, charge, lawsuit or other proceeding pending or, to B2B's knowledge, threatened in any forum by or on behalf of any present or former employee of B2B, any applicant for employment or classes of the foregoing alleging breach of any express or implied contract or employment, any Law governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct concerning the employment relationship; and (ix) material written personnel policy, rule or procedure applicable to employees of B2B, other than those set forth on Schedule 3.15(a). B2B is, and since December 1, 1999 has been, in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, wages, hours of work, and occupational safety and health. (b) B2B has at all times properly classified each of their respective employees as employees and each of their independent contractors as independent contractors, as applicable. There is no action, suit or investigation pending or, to the knowledge of B2B, threatened against B2B by any person challenging or questioning the classification by B2B of any person as an independent contractor, including any claim for unpaid benefits, for or on behalf of, any such persons. (c) Within the 12 months preceding the date of this Agreement, there has not been (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 B2B; or (ii) a "mass layoff" (as defined in the WARN Act) affecting any site of employment or facility of B2B; nor has B2B been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar state, local or foreign Law. Except as set forth on Schedule 3.15(c), the employees of B2B have not suffered an "employment loss" (as defined in the WARN Act) since six (6) months prior to the date of this Agreement. (d) Schedule 3.15(d) contains a true and complete list of (i) each deferred compensation and each bonus or other incentive compensation, stock purchase, stock option and other equity compensation plan, program, agreement or arrangement; (ii) each severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning of Section 3(1) of ERISA; (iii) each profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of Section 3(2) of ERISA); (iv) each employment, termination or severance agreement; and (v) each other employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by B2B or by any trade or business, whether or not incorporated (a "B2B ERISA Affiliate"), that together with B2B would be deemed a "single employer" within the meaning of Section 4001(b) of ERISA, or to which B2B or an ERISA Affiliate is party, whether written or oral, for the benefit of any employee or former employee of B2B (each, a "B2B Plan"). No B2B Plan is subject to Section 302 or Title IV of ERISA or section 412 of the Code and none of B2B or any B2B ERISA Affiliate has sponsored, maintained, contributed to or been required to contribute to any such plan within the past six (6) years prior to the date hereof. None of B2B or any B2B ERISA Affiliate has any formal plan or commitment to (i) create any additional B2B Plan, or (ii) materially modify or change any existing B2B Plan. No B2B Plan is a "multiemployer plan" within the meaning of Section 3(37) of ERISA. (e) True and complete copies of the following documents relating to each B2B Plan, where applicable, have been delivered or made available to Moneyline: (i) the B2B Plan document, including all amendments thereto; (ii) the most recent summary plan description required under ERISA with respect thereto, summary of material modifications and all material employee communications relating to such B2B Plan; (iii) a copy of the annual report, if required under ERISA, with respect to each such B2B Plan for the last two (2) years; (iv) a copy of the actuarial report, if required under ERISA, with respect to each such B2B Plan for the last two (2) years; (v) if the B2B Plan is funded through a trust or any other funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof; and (vi) the most recent determination letter received from the Internal Revenue Service with respect to each B2B Plan that is intended to be qualified under section 401 of the Code. (f) No liability under Title IV of ERISA has been incurred by B2B or any ERISA Affiliate since the effective date of ERISA that has not been satisfied in full, and no condition exists that presents a material risk to any of B2B or any B2B ERISA Affiliate of incurring a liability under such Title, other than liability for premiums due the PBGC, which payments have been or will be made when due. (g) There are no pending or, to B2B's knowledge, threatened or anticipated claims (other than routine claims for benefits) by, on behalf of, or against, any of the B2B Plans or any trust related thereto. (h) None of B2B, any of the B2B Plans, any trust created thereunder or any trustee, fiduciary or administrator thereof have engaged in a transaction or have taken or failed to take any action in connection with which any of the B2B Plans, any such trust, any trustee, fiduciary or administrator thereof, or any party dealing with the B2B Plans or any such trust could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax imposed pursuant to section 4975, 4976 or 4980B of the Code. (i) Each of the B2B Plans has been established, operated and administered in all material respects in accordance with its terms and applicable Laws, including but not limited to ERISA and the Code. All contributions that are required to be made to the B2B Plans have been timely made or have been properly accrued. (j) Each of the B2B Plans that is intended to be "qualified" within the meaning of section 401(a) of the Code is so qualified and no circumstances exist that could result in the disqualification of such B2B Plan and the trusts maintained thereunder are exempt from taxation under section 501(a) of the Code. Each B2B Plan intended to satisfy the requirements of section 501(c)(9) has satisfied such requirements. (k) Except as set forth on Schedule 3.15(k), the consummation of the transactions contemplated by this Agreement and the Transaction Agreements will not, either alone or in combination with another event, (i) entitle any current or former employee or officer of any of B2B or any B2B ERISA Affiliate to severance pay, unemployment compensation or any other payment, except as expressly provided in this Agreement, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. (l) No amounts payable under the B2B Plans or any other agreement or arrangement to which B2B is a party will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. (m) No B2B Plan provides benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than (i) coverage mandated by applicable Law, (ii) death benefits or retirement benefits under any "employee pension benefit plan," as that term is defined in Section 3(2) of ERISA, or (iii) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary)). No condition exists that would prevent B2B from amending or terminating any B2B Plan providing health or medical benefits in respect of any active or former employee of B2B. (n) Except as set forth on Schedule 3.15(n), B2B is not a party to (i) any employee benefit arrangements which contain "change of control," retention bonus or similar provisions, (ii) any severance agreements, arrangements or understandings with employees of B2B, or (iii) any oral or written employment contracts or agreements. (o) At the Closing Date, those employees of B2B set forth in Schedule 3.15(o) shall hold options to purchase shares of Common Stock in the amount, and at such price, set forth opposite their name in Schedule 3.15(o).

Employees; Employee Benefit Plans; ERISA. (a) Except as set forth on Schedule 3.15(a2.16(a), there is no (i) collective bargaining agreement or any other agreement with any labor organization to which B2B any of VNCI or the Subsidiaries is a party applicable to the employees of B2Bany of VNCI or the Subsidiaries; (ii) unfair labor practice complaint or charge pending or, to B2B's knowledge, or threatened against B2B any of VNCI or the Subsidiaries before the National Labor Relations Board or any other federal, state, local or foreign agency; (iii) pending or, to B2BVNCI's knowledge, threatened strike, slowdown, work stoppage, lockout or other collective labor action by or with respect to any employees of B2Bany of VNCI or the Subsidiaries; (iv) grievance, unfair dismissal or arbitration proceeding pending against B2Bany of VNCI or the Subsidiaries; (v) pending orpending, or to B2BVNCI's knowledge, threatened complaint, charge, lawsuit or other proceeding against B2B any of VNCI or the Subsidiaries by employees of B2B any of VNCI or the Subsidiaries alleging discrimination, (vi) pending or, to B2BVNCI's knowledge, threatened representation question or union organizing activities with respect to any employees of B2Bany of VNCI or the Subsidiaries; (vii) pending or, to B2BVNCI's knowledge, threatened notice of the intent of any federal, state, local or foreign agency responsible for the enforcement of labor or employment Laws, including, but not limited to, occupational safety and health, to conduct an investigation and no such investigation is in progress with respect to any employees of B2Bany of VNCI or the Subsidiaries; (viii) complaint, charge, lawsuit or other proceeding pending or, to B2BVNCI's knowledge, threatened in any forum by or on behalf of any present or former employee of B2Bany of VNCI or the Subsidiaries, any applicant for employment or classes of the foregoing alleging breach of any express or implied contract or employment, any Law governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct concerning the employment relationship; and (ix) material written personnel policy, rule or procedure applicable to employees of B2Bany of VNCI or the Subsidiaries, other than those set forth on Schedule 3.15(a2.16(a). B2B isVNCI and the Subsidiaries are, and since December January 1, 1999 has 1998 have been, in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, wages, hours of work, and occupational safety and health. (b) B2B has VNCI and the Subsidiaries have at all times properly classified each of their respective employees as employees and each of their independent contractors as independent contractors, as applicable. There is no action, suit or investigation pending or, to the knowledge of B2B, or threatened against B2B any of VNCI or the Subsidiaries by any person challenging or questioning the classification by B2B any of VNCI or the Subsidiaries of any person as an independent contractor, including any claim for unpaid benefits, for or on behalf of, any such persons. (c) Within the 12 months preceding the date of this Agreement, there has not been (i) a "plant closing" (as defined in the Worker Adjustment and Restraining Notification Act (the "WARN ACTAct") affecting any site of employment or one or more facilities or operating units within any site of employment or facility of B2Bany of VNCI or the Subsidiaries; or (ii) a "mass layoff" (as defined in the WARN Act) affecting any site of employment or facility of B2Bany of VNCI or the Subsidiaries; nor has B2B have any of VNCI or the Subsidiaries been affected by any transaction or engaged in layoffs or employment terminations sufficient in number to trigger application of any similar state, local or foreign Law. Except as set forth on Schedule 3.15(c2.16(c), the employees of B2B VNCI and the Subsidiaries have not suffered an "employment loss" (as defined in the WARN Act) since six (6) months prior to the date of this Agreement. (d) Schedule 3.15(d2.16(d) contains a true and complete list of (i) each deferred compensation and each bonus or other incentive compensation, stock purchase, stock option and other equity compensation plan, program, agreement or arrangement; (ii) each severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA); (iii) each profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of Section 3(2) of ERISA); (iv) each employment, termination or severance agreement; and (v) each other employee benefit plan, fund, program, agreement or arrangement, in each case, that is sponsored, maintained or contributed to or required to be contributed to by B2B any of VNCI, any of the Subsidiaries, or by any trade or business, whether or not incorporated (a an "B2B ERISA Affiliate"), that together with B2B VNCI would be deemed a "single employer" within the meaning of Section 4001(b) of ERISA, or to which B2B any of VNCI, any of the Subsidiaries, or an ERISA Affiliate is party, whether written or oral, for the benefit of any employee or former employee of B2B any of VNCI or the Subsidiaries (each, a "B2B Plan"). No B2B Plan is subject to Section 302 or Title IV of ERISA or section 412 of the Code and none of B2B VNCI, any of the Subsidiaries, or any B2B ERISA Affiliate has sponsored, maintained, contributed to or been required to contribute to any such plan within the past six (6) years prior to the date hereof. None of B2B VNCI, any of the Subsidiaries or any B2B ERISA Affiliate has any formal plan or commitment to (i) create any additional B2B Plan, or (ii) materially modify or change any existing B2B Plan. No B2B Plan is a "multiemployer plan" within the meaning of Section 3(37) of ERISA. (e) True and complete copies of the following documents relating to each B2B Plan, where applicable, have been delivered or made available to Moneyline: (i) the B2B Plan document, including all amendments thereto; (ii) the most recent summary plan description required under ERISA with respect thereto, summary of material modifications and all material employee communications relating to such B2B Plan; (iii) a copy of the annual report, if required under ERISA, with respect to each such B2B Plan for the last two (2) years; (iv) a copy of the actuarial report, if required under ERISA, with respect to each such B2B Plan for the last two (2) years; (v) if the B2B Plan is funded through a trust or any other funding vehicle, a copy of the trust or other funding agreement (including all amendments thereto) and the latest financial statements thereof; and (vi) the most recent determination letter received from the Internal Revenue Service with respect to each B2B Plan that is intended to be qualified under section 401 of the Code. (f) No liability under Title IV of ERISA has been incurred by B2B any of VNCI or the Subsidiaries or any ERISA Affiliate since the effective date of ERISA that has not been satisfied in full, and no condition exists that presents a material risk to any of B2B VNCI or Subsidiary or any B2B ERISA Affiliate of incurring a liability under such Title, other than liability for premiums due the Pension Benefit Guaranty Corporation ("PBGC"), which payments have been or will be made when due. (g) There are no pending or, to B2BVNCI's knowledge, threatened or anticipated claims (other than routine claims for benefits) by, on behalf of, or against, any of the B2B Plans or any trust related thereto. (h) None of B2BVNCI, any of the B2B Subsidiaries, any of the Plans, any trust created thereunder or any trustee, fiduciary or administrator thereof have engaged in a transaction or have taken or failed to take any action in connection with which any of the B2B Plans, any such trust, any trustee, fiduciary or administrator thereof, or any party dealing with the B2B Plans or any such trust could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a Tax (as defined below) imposed pursuant to section 4975, 4976 or 4980B of the Code. (i) Each of the B2B Plans has been established, operated and administered in all material respects in accordance with its terms and applicable Laws, including but not limited to ERISA and the Code. All contributions that are required to be made to the B2B Plans have been timely made or have been properly accrued. (j) Each of the B2B Plans that is intended to be "qualified" within the meaning of section 401(a) of the Code is so qualified and no circumstances exist that could result in the disqualification of such B2B Plan and the trusts maintained thereunder are exempt from taxation under section 501(a) of the Code. Each B2B Plan intended to satisfy the requirements of section 501(c)(9) has satisfied such requirements. (k) Except as set forth on in Schedule 3.15(k2.16(k), the consummation of the transactions contemplated by this Agreement and the Transaction Agreements will not, either alone or in combination with another event, (i) entitle any current or former employee or officer of any of B2B VNCI, any of the Subsidiaries, or any B2B ERISA Affiliate to severance pay, unemployment compensation or any other payment, except as expressly provided in this Agreement, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such employee or officer. (l) No amounts payable under the B2B Plans or any other agreement or arrangement to which B2B any of VNCI or the Subsidiaries is a party will fail to be deductible for federal income tax purposes by virtue of section 280G of the Code. (m) No B2B Plan provides benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees after retirement or other termination of service (other than (i) coverage mandated by applicable Law, (ii) death benefits or retirement benefits under any "employee pension benefit plan," as that term is defined in Section 3(2) of ERISA, or (iii) benefits, the full cost of which is borne by the current or former employee (or his or her beneficiary)). No condition exists that would prevent B2B any of VNCI or the Subsidiaries from amending or terminating any B2B Plan providing health or medical benefits in respect of any active or former employee of B2B.any of VNCI or the Subsidiaries. (n) Except as set forth on Schedule 3.15(n2.16(n), B2B none of VNCI or any of the Subsidiaries is not a party to (i) any employee benefit arrangements which contain "change of control," retention bonus or similar provisions, (ii) any severance agreements, arrangements or understandings with employees of B2Bany of VNCI or the Subsidiaries, or (iii) any oral or written employment contracts or agreements. (o) At the Closing Date, those employees of B2B VNCI set forth in Schedule 3.15(o2.16(o) shall hold options to purchase shares of Common Stock in the amount, and at such price, as set forth opposite their name in Schedule 3.15(o2.16(o). (p) Except as set forth on Schedule 2.16(p), as of the Closing Date, no equity-based awards, other than options to purchase Common Stock, have been granted under any of the Plans. (q) As of the Closing Date, no Plan, other than the VNCI 1999 Stock Incentive Plan, allows for the granting of options to purchase Common Stock. Each Plan, other than the VNCI 1999 Stock Incentive Plan, that previously allowed for the granting of options to purchase Common Stock has been terminated except with respect to option grants made prior to such terminations.