Common use of Employees; Employee Benefit Plans Clause in Contracts

Employees; Employee Benefit Plans. (a) Except as set forth on Section 3.21(a) of the Company Disclosure Schedule, neither the Company nor any Subsidiary thereof is a party to or bound by any collective bargaining agreement or other similar agreement, and there are no labor unions or other organizations representing, purporting to represent or attempting to represent any employees employed by the Company or any Subsidiary in their capacities as such. Within the past three (3) years, there has not occurred or, to the Knowledge of Holdings or to the Knowledge of the Company, been threatened any attempt by any labor union or other labor organization to organize any employees of the Company or the Subsidiaries, any strike, slowdown, picketing, work stoppage, concerted refusal to work overtime, or other similar labor activity with respect to any employee of the Company or any Subsidiary, and to the Knowledge of Holdings and to the Knowledge of the Company, no event has occurred or circumstance exists that may provide the basis of any strike, slowdown, picketing, work stoppage, concerted refusal to work overtime, employee union organizing or election activities, or other similar labor activity. Except as set forth on Section 3.21(a) of the Company Disclosure Schedule, there are no pending, recently resolved (i.e., within the past three (3) years) or, to the to the Knowledge of Holdings or to the Knowledge of the Company, threatened material employment disputes, claims, investigations, hearings, audits, reviews, abatement programs, settlements, grievances, mediations, arbitrations, or complaints currently subject to any grievance procedure, arbitration, litigation, internal or external investigation, or any other proceeding against the Company or any of the Subsidiaries. The Company and each Subsidiary have complied in all material respects with all applicable Laws pertaining to the employment or termination of employment of its employees, including all such laws relating to classification of employees and independent contractors, equal employment opportunities, fair employment practices, civil rights, affirmative action, background checking, verification of employment eligibility, immigration, labor relations, occupational health and safety, the payment and withholding of taxes, maintenance of workers’ compensation insurance and unemployment tax registration, prohibited discrimination, wages, hours, and overtime, working conditions, employee leave, and other similar employment activities. The Company and each Subsidiary are not subject to any consent decree, injunction, or other form of court or Governmental Order relating to any employment practice or matter. The Company and the Subsidiaries have not, within the two (2) years prior to the date of this Agreement, taken any action that, alone or combined with any other action of the Company and the Subsidiaries, could reasonably be construed as a “plant closing” or “mass layoff” within the meaning of the WARN Act and any applicable state law, and Section 3.21(a) of the Company Disclosure Schedule identifies all employees who have been “laid off” within the meaning of the WARN Act or any applicable state law within the two (2) years prior to the date of this Agreement. Holdings has no, and has never had any, employees. (b) Section 3.21(b) of the Company Disclosure Schedule lists each Employee Benefit Plan. With respect to each Employee Benefit Plan, the Company has provided or made available to Parent true and complete copies of: (i) such Employee Benefit Plan, if written, or a description of such Employee Benefit Plan, if not written, and (ii) to the extent applicable to such Employee Benefit Plan: all trust agreements, insurance contracts or other funding arrangements; the most recent three Forms 5500 required to have been filed with the Department of Labor and all schedules thereto and (if applicable) financial statements with attached opinions of independent accountants; the most recent IRS determination, advisory or opinion letter; all current employee handbooks or manuals; all current summary plan descriptions and summaries of material modifications; all material communications received from or sent to the IRS or the Department of Labor (including a written description of any oral communication) within the last three years and all Forms 5330 filed by the Company or any ERISA Affiliate, whether related to an Employee Benefit Plan or otherwise; and all amendments and modifications to any such document. (c) Each Employee Benefit Plan has been operated and administered in compliance with its terms and has been established, operated and administered in compliance with all applicable Laws, including ERISA and the Code. All contributions and premiums required to have been paid by the Company and its ERISA Affiliates to or with respect to any Employee Benefit Plan under the terms of any such Employee Benefit Plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable Law have been paid within the time prescribed by any such Employee Benefit Plan, arrangement or applicable Law. None of the Company, any ERISA Affiliate, nor, to the Knowledge of Holdings or to the Knowledge of the Company, any Employee Benefit Plan fiduciary has, with respect to the Employee Benefit Plans, engaged in a breach of fiduciary duty or a non-exempt “prohibited transaction,” as such term is defined in Code §4975 or ERISA §406. (d) In the case of each Employee Benefit Plan that is an “employee welfare benefit plan” as defined in §3(1) of ERISA, Section 3.21(d) of the Company Disclosure Schedule states whether such plan is (i) unfunded, (ii) funded through a “welfare benefit fund”, as such term is defined in Section 419(e) of the Code, or other funding mechanism or (iii) insured. (e) All required or discretionary (in accordance with historical practices) payments, premiums, contributions, reimbursements, or accruals for all periods ending prior to or as of the Closing Date in respect of any Employee Benefit Plan shall have been made or properly accrued on the Reference Balance Sheet or will be properly accrued on the books and records of the Company and each ERISA Affiliate as of the Closing Date. To the extent required by generally accepted accounting principles, all unfunded liabilities in respect of any Employee Benefit Plan have been reflected on the Reference Balance Sheet or the books and records of the Company and each ERISA Affiliate. Neither the Company nor any ERISA Affiliate has any assets subject to (or expected to be subject to) a lien for unpaid contributions to any Employee Benefit Plan. (f) There is no action, claim, complaint, investigation, petition, suit, or other proceeding pending or, to the Knowledge of Holdings or to the Knowledge of the Company, threatened with respect to any Employee Benefit Plan or the assets of any Employee Benefit Plan (other than routine claims for benefits) and, to the Knowledge of Holdings or to the Knowledge of the Company, no facts or circumstances exist that reasonably could reasonably be expected to give rise to any such action, claim, complaint, investigation, petition, suit, or other proceeding or Liabilities in the event thereof. (g) Each Employee Benefit Plan that is intended to be qualified under Code §401(a), and the trust (if any) forming a part thereof, has received a favorable determination letter (or an opinion or advisory letter on which it is entitled to rely) from the IRS as to its qualification under the Code and to the effect that each such trust is exempt from taxation under Code §501(a) and nothing has occurred since the date of such determination letter that could reasonably be expected to adversely affect such qualification or tax-exempt status. All amendments and actions required to bring each Employee Benefit Plan into conformity with applicable provisions of all applicable Laws, including ERISA and the Code, have been made or taken, except to the extent that such amendments or actions are not required by applicable Law to be made or taken until after the Closing Date. (h) Each Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Code §409A(d)(1), excluding any grandfathered amounts which have not been materially modified for purposes of Code §409A) has been operated since January 1, 2005, in compliance with the applicable provisions of Code §409A, and since January 1, 2009 has been in documentary compliance with the applicable provisions of Code §409A; and neither the Company nor any ERISA Affiliate has been required to report any Taxes due as a result of a failure of an Employee Benefit Plan to comply with Code §409A. No Holdings Option has an exercise price that was less than the fair market value of Holdings Common Stock on the date of grant as determined under Code §409A or is otherwise in violation of Code §409A. Neither the Company and its ERISA Affiliates nor any current or former employee or independent contractor have incurred any Liabilities (including as a result of any indemnification, reimbursement, “gross-up” or similar obligation) arising out of or relating to Code §409A, and no condition exists that would reasonably be expected to subject such Person to any Liabilities (including as a result of any indemnification obligation) arising out of or relating to Code §409A. (i) Except as otherwise set forth on Section 3.21(i) of the Company Disclosure Schedule, each of the Employee Benefit Plans can be terminated at any time in the sole discretion of the plan sponsor, without any additional contribution to such Employee Benefit Plan or the payment of any additional compensation or amount or acceleration of any benefits. Nothing under the provisions of an Employee Benefit Plan subject to Section 401(a), 403(a) or 403(b) of the Code prohibits the prompt distribution of all amounts under any such Employee Benefit Plan, provided that such Employee Benefit Plan is terminated by the plan sponsor prior to such distribution. (j) No Employee Benefit Plan is, and neither the Company nor any ERISA Affiliate has within the last six (6) years contributed to or had any obligation to contribute to: (i) a “multiple employer plan” for purposes of §4063, §4064 or §4066 of ERISA, (ii) a “multiemployer plan” within the meaning of §3(37) or §4001(a)(3) of ERISA, (iii) a plan subject to Code §412 or §302 or Title IV of ERISA, or (iv) a “multiple employer welfare arrangement” as defined in §3(40) of ERISA. None of the Company and its Subsidiaries nor any ERISA Affiliate has incurred any material Liabilities (including as a result of any indemnification obligation) under Title I or Title IV of ERISA for which the Company and its ERISA Affiliates could be liable, and, to the Knowledge of Holdings or to the Knowledge of the Company, no condition exists that would subject the Company and its ERISA Affiliates to any material Tax, fine, Encumbrance, or other Liabilities imposed by ERISA, the Code or other applicable Law. (k) Except as set forth on Section 3.21(k) of the Company Disclosure Schedule, none of the Employee Benefit Plans, nor any trust created thereunder, now holds or has heretofore held as assets any stock or securities issued by the Company or any ERISA Affiliate. (l) Except as set forth on Section 3.21(l) of the Company Disclosure Schedule, no current or former employee, officer, director or independent contractor of the Company and its ERISA Affiliates, or any dependent or beneficiary of any such Person, is or will become entitled to death or post-employment death, medical or health benefits or other welfare benefits (through insurance or otherwise) after such person’s retirement or other termination of employment other than coverage mandated by COBRA, and there has been no communication to any Person that could reasonably be expected to promise or guarantee any such benefits. (m) To the Knowledge of Holdings or the Knowledge of the Company, no condition exists as a result of which the Company or any ERISA Affiliate could reasonably be expected to have any material Liabilities, including any obligations under the Employee Benefit Plans, with respect to any misclassification of a Person performing services for the Company or an ERISA Affiliate as an independent contractor or the employee of another entity rather than as an employee of the Company or an ERISA Affiliate. (n) Except as set forth on Section 3.21(n) of the Company Disclosure Schedule, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in combination with another event, (i) entitle any current or former employee, officer, director or independent contractor of the Company and its ERISA Affiliates to severance pay, unemployment compensation or any other payment or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such individual or require any contributions or payments to fund any obligations under any Employee Benefit Plan. Any severance pay in respect to former employees of the Company and its ERISA Affiliates has been paid, or shall have been paid or accrued as a Liability, by the Company as of the Closing. The consummation of the transactions contemplated by this Agreement (either alone or in combination with any other event or events) will not give rise to any payment (or acceleration of vesting of any amounts or benefits) that will be an “excess parachute payment” as defined in Code §280G. (o) The Company and its ERISA Affiliates do not have any legally binding plan or commitment to create any additional Employee Benefit Plan or modify or change any existing Employee Benefit Plan that could be reasonably expected to result in material Liabilities to the Company and its ERISA Affiliates, except as may be required by applicable Law.

Employees; Employee Benefit Plans. (a) Except as set forth on Section 3.21(a) The employment of each employee of the Company Disclosure Schedule, neither is terminable at will. No employee of the Company nor any Subsidiary thereof is a party has been granted the right to or bound by any collective bargaining agreement or other similar agreement, and there are no labor unions or other organizations representing, purporting to represent or attempting to represent any employees employed continued employment by the Company or to any Subsidiary material compensation following termination of employment with the Company. The Company is not in their capacities as suchdefault with respect to any obligation to any of its employees in any material respect. Within the past three (3) years, there has not occurred or, to the Knowledge of Holdings or to the Knowledge No employee of the Company, been threatened any attempt Company is represented by any labor union or other labor organization to organize covered by any employees of the Company or the Subsidiaries, any strike, slowdown, picketing, work stoppage, concerted refusal to work overtime, or other similar labor activity with respect to any employee of the Company or any Subsidiary, and to the Knowledge of Holdings and to the Knowledge of the Company, collective bargaining agreement. There is no event has occurred or circumstance exists that may provide the basis of any strike, slowdown, picketing, work stoppage, concerted refusal to work overtime, employee union organizing or election activities, or other similar labor activity. Except as set forth on Section 3.21(a) of the Company Disclosure Schedule, there are no pending, recently resolved (i.e., within the past three (3) years) pending or, to the to the Knowledge of Holdings or to the Knowledge of the Company’s Knowledge, threatened material employment disputesdispute or Action involving the Company and any employee or group of its employees, claimsincluding, investigationswithout limitation, hearingscharges of discrimination, audits, reviews, abatement programs, settlements, grievances, mediations, arbitrationsretaliation, or complaints currently subject to any grievance procedure, arbitration, litigation, internal violation of equal opportunity or external investigation, or any other proceeding against the Company or any of the Subsidiariesanti-discrimination Laws. The Company has complied and each Subsidiary have complied is currently complying in all material respects with all applicable Laws pertaining to the employment or termination of employment of its employees, including all such laws relating to classification of employees employment and independent contractors, equal employment opportunities, fair employment practices, civil rights, affirmative action, background checking, verification terms and conditions of employment eligibility, immigration, labor relations, occupational health and safety, the payment and withholding of taxes, maintenance of workers’ compensation insurance and unemployment tax registration, prohibited discrimination, wages, hoursemployment, and overtime, working conditions, employee leave, wages and other similar employment activitieshours. The Company has not been notified of any pending or threatened investigation by any branch or department of U.S. Immigration and each Subsidiary are not subject to any consent decree, injunction, Customs Enforcement (“ICE”) or other form federal agency charged with administration and enforcement of court or Governmental Order relating to any employment practice or matter. The Company federal immigration laws concerning the Company, and the Subsidiaries have notCompany has not received any “no match” notices from ICE, within the two (2) years prior to Social Security Administration or the date of this Agreement, taken any action that, alone or combined with any other action of the Company and the Subsidiaries, could reasonably be construed as a “plant closing” or “mass layoff” within the meaning of the WARN Act and any applicable state law, and Section 3.21(a) of the Company Disclosure Schedule identifies all employees who have been “laid off” within the meaning of the WARN Act or any applicable state law within the two (2) years prior to the date of this Agreement. Holdings has no, and has never had any, employeesInternal Revenue Service. (b) Section 3.21(b3.18(b) of the Company Disclosure Schedule lists Letter sets forth a complete and correct list of each Employee Benefit Plan. With A copy of each Benefit Plan has been made available to Parent, including, (A) the three (3) most recent annual report on Form 5500 filed with the IRS with respect to each Employee Benefit Plan (if any such report was required) and schedules thereto, (B) the most recent summary plan description or similar document for each such Benefit Plan for which such summary plan description is required or was otherwise provided to plan participants or beneficiaries, (C) the most recent actuarial report or other financial statement, if any, relating to such Benefit Plan, (D) the Company has provided most recent determination letter or made available opinion letter, if any, issued by the IRS with respect to Parent true such Benefit Plan and complete copies of: any pending request for such a determination letter, (iE) each trust agreement and insurance annuity contract, if any, relating to any such Employee Benefit Plan, if written, or a description of such Employee Benefit Plan, if not written, and (iiF) to the extent applicable to such Employee Benefit Plan: all trust agreements, insurance contracts or other funding arrangements; the three (3) most recent three Forms 5500 required to have been filed with the Department of Labor and all schedules thereto and nondiscrimination testing results (if applicable) financial statements with attached opinions and (G) written descriptions of independent accountants; the most recent IRS determination, advisory or opinion letter; all current employee handbooks or manuals; all current summary plan descriptions and summaries of material modifications; all material communications received from or sent non-written agreements relating to the IRS or the Department of Labor (including a written description of any oral communication) within the last three years and all Forms 5330 filed by the Company or any ERISA Affiliate, whether related to an Employee Benefit Plan or otherwise; and all amendments and modifications to any such documentPlans. (c) Each Employee Benefit Plan Neither the Company nor any Company ERISA Affiliate participates currently or has been operated ever participated in and administered in compliance with its terms is not required currently and has never been establishedrequired to contribute to or otherwise participate in any multiemployer plans (as defined in Section 3(37) of ERISA), operated and administered any multiple employer plan (as defined in compliance with all applicable Laws, including ERISA and Section 413(c) of the Code. All contributions and premiums required to have been paid by the Company and its ERISA Affiliates to or with respect to any Employee Benefit Plan under the terms of any such Employee Benefit Plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable Law have been paid within the time prescribed by any such Employee Benefit Plan, arrangement or applicable Law. None of the Company), any ERISA Affiliate, nor, to the Knowledge of Holdings or to the Knowledge of the Company, any Employee Benefit Plan fiduciary has, with respect to the Employee Benefit Plans, engaged in a breach of fiduciary duty or a non-exempt “prohibited transaction,” as such term is defined in Code §4975 or ERISA §406. (d) In the case of each Employee Benefit Plan that is an “employee welfare benefit plan” as defined in §3(1Section 3(35) of ERISA, any pension plan subject to the funding standards of Section 3.21(d) 302 of the Company Disclosure Schedule states whether such plan is (i) unfunded, (ii) funded through a “welfare benefit fund”, as such term is defined in ERISA or Section 419(e) 412 of the Code, any plan, program or other funding mechanism arrangement subject to Title IV of ERISA, or (iiiany multiple employer welfare arrangement as defined in Section 3(40) insured. (e) All required or discretionary (of ERISA. Each Benefit Plan has been operated, maintained and administered in accordance with historical practices) paymentsits terms and with the requirements of applicable Law, premiumsincluding ERISA, contributionsthe Code and the Patient Protection and Affordable Care Act, reimbursementsas amended by the Health Care and Education Reconciliation Act of 2010. There has been no violation of or failure to comply with ERISA or the Code with respect to the filing of applicable returns, or accruals for all periods ending prior to or as reports, documents and notices regarding any of the Closing Date in respect Benefit Plans with any Governmental Entity or the furnishing of any Employee Benefit Plan shall have been made such notices or properly accrued on documents to the Reference Balance Sheet participants or will be properly accrued on the books and records beneficiaries of the Benefit Plans. Neither the Company, nor any Company and each ERISA Affiliate as Affiliate, “party in interest” or “disqualified person” with respect to the Benefit Plans has engaged in a material “prohibited transaction” within the meaning of Section 4975 of the Closing DateCode or Section 406 of ERISA for which an applicable statutory or administrative exemption does not exist. To the extent required by generally accepted accounting principlesAll benefits, all unfunded liabilities in respect of any Employee contributions and premiums relating to each Benefit Plan have been reflected on timely paid in accordance with the Reference Balance Sheet terms of such Benefit Plan and all applicable laws and accounting principles, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the books extent required by, and records of the Company and each ERISA Affiliate. Neither the Company nor any ERISA Affiliate has any assets subject to (or expected to be subject to) a lien for unpaid contributions to any Employee Benefit Planin accordance with, GAAP. (fd) There is no action, claim, complaint, investigation, petition, suit, or other proceeding pending or, to the Knowledge of Holdings or to the Knowledge of the Company, threatened with respect to any Employee Each Benefit Plan or the assets of any Employee Benefit Plan (other than routine claims for benefits) and, to the Knowledge of Holdings or to the Knowledge of the Company, no facts or circumstances exist that reasonably could reasonably be expected to give rise to any such action, claim, complaint, investigation, petition, suit, or other proceeding or Liabilities in the event thereof. (g) Each Employee Benefit Plan that is intended to be qualified under “qualified” within the meaning of Section 401(a) of the Code §401(a), and the trust (if any) forming a part thereof, has received a favorable determination or opinion letter from the IRS stating that it (or an opinion the master or advisory letter prototype form on which it is entitled to relyestablished) from the IRS as to its qualification under the Code is so qualified, and to the effect that each such trust is exempt from taxation under Code §501(a) and nothing Company’s Knowledge, no event has occurred since the date of such determination or opinion letter that could would reasonably be expected to adversely affect the qualified status of any such qualification or tax-exempt status. All amendments and actions required to bring each Employee Benefit Plan. (e) Each Benefit Plan into conformity that is a “group health plan” has complied in all respects in form, operation and administration with applicable provisions of all applicable Lawsthe employer shared responsibility mandate, including ERISA and the Code, have been made or taken, except to the extent that such amendments or actions are applicable, under Code Section 4980H, and the Company is not required by applicable Law subject to, nor reasonably could be expected to be made subject to, any “assessable payments” (within the meaning of Code Section 4980H). Except as otherwise provided herein, the execution of this Agreement or taken until after the Closing Date. consummation of the Merger will not (heither alone or upon the occurrence of any additional events that, standing alone, would not trigger such benefits) (i) entitle any Person to severance payable by the Company or its Affiliates, (ii) accelerate the time of funding, vesting or payment of any benefits under any of the Benefit Plans or (iii) result in the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” with respect to any Person within the meaning of Section 280G(b) of the Code. Each Employee Benefit Plan that is a “nonqualified deferred compensation plancompensation” (as defined in plan within the meaning of Section 409A of the Code §409A(d)(1), excluding any grandfathered amounts which have not been materially modified for purposes of Code §409A) has been operated since January 1, 2005, in material compliance with the such section and all applicable provisions of Code §409A, and since January 1, 2009 has been in documentary compliance with the applicable provisions of Code §409A; and neither the Company nor any ERISA Affiliate has been required to report any Taxes due as a result of a failure of an Employee Benefit Plan to comply with Code §409A. No Holdings Option has an exercise price that was less than the fair market value of Holdings Common Stock on the date of grant as determined under Code §409A or is otherwise in violation of Code §409A. Neither the Company and its ERISA Affiliates nor any current or former employee or independent contractor have incurred any Liabilities regulatory guidance (including as a result of notices, rulings and proposed and final regulations). The Company does not have any indemnification, reimbursement, actual or potential obligation to reimburse or otherwise “gross-up” any Person for the interest or similar obligationadditional tax set forth under Section 409(A)(a)(1)(B) arising out of or relating to Code §409A, and no condition exists that would reasonably be expected to subject such Person to any Liabilities the Code. (including as a result of any indemnification obligationf) arising out of or relating to Code §409A. There are (i) Except as otherwise set forth on Section 3.21(i) of no current, pending or, to the Company Disclosure ScheduleCompany’s Knowledge, each of the Employee threatened investigations by any Governmental Entity involving Benefit Plans can be terminated at any time in the sole discretion of the plan sponsor, without any additional contribution to such Employee Benefit Plan or the payment of any additional compensation or amount or acceleration of any benefits. Nothing under the provisions of an Employee Benefit Plan subject to Section 401(a), 403(a) or 403(b) of the Code prohibits the prompt distribution of all amounts under any such Employee Benefit Plan, provided that such Employee Benefit Plan is terminated by the plan sponsor prior to such distribution. (j) No Employee Benefit Plan isPlans, and neither the Company nor any ERISA Affiliate has within the last six (6) years contributed to or had any obligation to contribute to: (i) a “multiple employer plan” for purposes of §4063, §4064 or §4066 of ERISA, (ii) a “multiemployer plan” within no pending, asserted or, to the meaning of §3(37) Company’s Knowledge, threatened claims (other than routine claims for benefits), suits or §4001(a)(3) of ERISA, (iii) a plan subject to Code §412 or §302 or Title IV of ERISA, or (iv) a “multiple employer welfare arrangement” as defined in §3(40) of ERISAproceedings against any Benefit Plans. None of the Company and its Subsidiaries nor any ERISA Affiliate has incurred any material Liabilities (including as a result of any indemnification obligation) under Title I or Title IV of ERISA Benefit Plans provides for which the Company and its ERISA Affiliates could be liable, and, to the Knowledge of Holdings or to the Knowledge of the Company, no condition exists that would subject the Company and its ERISA Affiliates to any material Tax, fine, Encumbrance, or other Liabilities imposed by ERISA, the Code or other applicable Law. (k) Except as set forth on Section 3.21(k) of the Company Disclosure Schedule, none of the Employee Benefit Plans, nor any trust created thereunder, now holds or has heretofore held as assets any stock or securities issued by the Company or any ERISA Affiliate. (l) Except as set forth on Section 3.21(l) of the Company Disclosure Schedule, no current or former employee, officer, director or independent contractor of the Company and its ERISA Affiliates, or any dependent or beneficiary of any such Person, is or will become entitled to death or post-employment deathlife, health or medical insurance or life, health, medical or health benefits or other welfare benefits (through insurance or otherwise) after such person’s retirement coverage for any participant or other any beneficiary of a participant following termination of employment other than coverage mandated by COBRA, and there has been no communication to any Person that could reasonably be expected to promise or guarantee any such benefits. (m) To the Knowledge of Holdings or the Knowledge of the Company, no condition exists as a result of which the Company or any ERISA Affiliate could reasonably be expected to have any material Liabilities, including any obligations under the Employee Benefit Plans, with respect to any misclassification of a Person performing services for the Company or an ERISA Affiliate as an independent contractor or the employee of another entity rather than as an employee of the Company or an ERISA Affiliate. (n) Except as set forth on Section 3.21(n) of the Company Disclosure Schedule, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in combination with another event, (i) entitle any current or former employee, officer, director or independent contractor of the Company and its ERISA Affiliates to severance pay, unemployment compensation or any other payment or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such individual or require any contributions or payments to fund any obligations under any Employee Benefit Plan. Any severance pay in respect to former employees of the Company and its ERISA Affiliates has been paid, or shall have been paid or accrued as a Liability, by the Company as of the Closing. The consummation of the transactions contemplated by this Agreement (either alone or in combination with any other event or events) will not give rise to any payment (or acceleration of vesting of any amounts or benefits) that will be an “excess parachute payment” as defined in Code §280G. (o) The Company and its ERISA Affiliates do not have any legally binding plan or commitment to create any additional Employee Benefit Plan or modify or change any existing Employee Benefit Plan that could be reasonably expected to result in material Liabilities to the Company and its ERISA Affiliatesemployment, except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or applicable state law or otherwise. (g) Each individual who is classified by applicable Lawthe Company or any Affiliate thereof as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.

Employees; Employee Benefit Plans. (a) Except as set forth on in Section 3.21(a3.16(a) of the Company Seller Disclosure Schedule, neither Seller does not (i) employ or engage any employees, consultants or independent contractors, or (ii) maintain or have any liability with respect to any Benefit Plan. (b) Other than as set forth on Section 3.16(b) of the Company nor any Subsidiary thereof Seller Disclosure Schedule, the employment of each employee of Seller is a party terminable at will. Other than as set forth on Section 3.16(b) of the Seller Disclosure Schedule, no employee of Seller has been granted the right to or bound continued employment by any collective bargaining agreement or other similar agreement, and there are no labor unions or other organizations representing, purporting to represent or attempting to represent any employees employed by the Company or any Subsidiary in their capacities as such. Within the past three (3) years, there has not occurred or, to the Knowledge of Holdings Seller or to the Knowledge any material compensation following termination of the Company, been threatened employment with Seller. Seller is not in default with respect to any attempt obligation to any of its employees in any material respect. No employee of Seller is represented by any labor union or other labor organization to organize covered by any employees of the Company or the Subsidiaries, any strike, slowdown, picketing, work stoppage, concerted refusal to work overtime, or other similar labor activity with respect to any employee of the Company or any Subsidiary, and to the Knowledge of Holdings and to the Knowledge of the Company, collective bargaining agreement. There is no event has occurred or circumstance exists that may provide the basis of any strike, slowdown, picketing, work stoppage, concerted refusal to work overtime, employee union organizing or election activities, or other similar labor activity. Except as set forth on Section 3.21(a) of the Company Disclosure Schedule, there are no pending, recently resolved (i.e., within the past three (3) years) pending or, to the to the Knowledge knowledge of Holdings or to the Knowledge of the CompanySeller, threatened material employment disputesdispute or Action involving Seller and any employee or group of its employees, claimsincluding, investigationswithout limitation, hearingscharges of discrimination, audits, reviews, abatement programs, settlements, grievances, mediations, arbitrationsretaliation, or complaints violation of equal opportunity or anti-discrimination laws. Seller has complied and is currently subject to any grievance procedure, arbitration, litigation, internal or external investigation, or any other proceeding against the Company or any of the Subsidiaries. The Company and each Subsidiary have complied complying in all material respects with all applicable Laws pertaining to the employment or termination of employment of its employees, including all such laws relating to classification of employees Benefit Plans, employment and independent contractors, equal employment opportunities, fair employment practices, civil rightsterms and conditions of employment, affirmative actionand wages and hours. Seller has not been notified of any pending or threatened investigation or audit by any branch or department of U.S. Immigration and Customs Enforcement (“ICE”) or other federal agency charged with administration and enforcement of federal immigration laws concerning Seller, background checking, verification of employment eligibility, immigration, labor relations, occupational health and safetySeller has not received any “no match” notices from ICE, the payment Social Security Administration or the Internal Revenue Service (the “IRS”). (c) Section 3.16(c) of the Seller Disclosure Schedule sets forth a complete and withholding correct list of taxeseach Benefit Plan. A copy of each Benefit Plan has been made available to the Buyer, maintenance including, (i) the 3 most recent annual reports on Form 5500 filed with the U.S. Department of workers’ compensation insurance Labor with respect to each Benefit Plan (if any such report was required) and unemployment tax registrationschedules thereto, prohibited discrimination(ii) the most recent summary plan description or similar document for each such Benefit Plan for which such summary plan description is required or was otherwise provided to plan participants or beneficiaries, wages, hours, and overtime, working conditions, employee leave, and other similar employment activities. The Company and each Subsidiary are not subject to any consent decree, injunction, (iii) the most recent actuarial report or other form of court financial statement, if any, relating to such Benefit Plan, (iv) the most recent determination letter or Governmental Order opinion letter, if any, issued by the IRS with respect to such Benefit Plan and any pending request for such a determination letter, (v) each trust agreement and insurance annuity contract, if any, relating to any employment practice such Benefit Plan, (F) the 3 most recent 401(k) nondiscrimination testing results (if applicable) and (vi) written descriptions of all non-written agreements relating to the Benefit Plans. “Benefit Plan” shall mean any benefit and compensation plan, contract, policy or matter. The Company arrangement covering employees or former employees and the Subsidiaries have notleased employees, directors, officers, shareholders or independent contractors (in each case either current or former) of Seller (or predecessors thereof) or any Seller ERISA Affiliate, including, but not limited to any “welfare” plan, fund or program (within the two meaning of Section 3(1) of ERISA); any “pension” plan, fund or program (2within the meaning of Section 3(2) years prior to of ERISA); any incentive compensation plan; any employment, consulting, termination, retention, indemnification or severance agreement, plan or arrangement; any stock ownership, stock bonus, stock option, restricted stock, stock appreciation right, profits interest, membership unit award, stock purchase, phantom stock or bonus plan; any nonqualified deferred compensation plan (within the date meaning of this Agreement, taken any action that, alone or combined with any other action Section 409A of the Company Internal Revenue Code of 1986, as amended (the “Code”)); and the Subsidiariesany fringe benefit or perquisite plan, could reasonably arrangement or policy; in each case, (whether funded or unfunded, written or oral, qualified or nonqualified), that is sponsored, maintained or contributed to or required to be construed as contributed to by Seller, any Seller Affiliate, Seller or any Seller ERISA Affiliate. “Seller ERISA Affiliate” shall mean any trade or business, whether or not incorporated, that together with Seller would be deemed a “plant closing” or “mass layoffsingle employer” within the meaning of the WARN Act and any applicable state law, and Section 3.21(a) of the Company Disclosure Schedule identifies all employees who have been “laid off” within the meaning of the WARN Act or any applicable state law within the two (2) years prior to the date of this Agreement. Holdings has no, and has never had any, employees. (b) Section 3.21(b) of the Company Disclosure Schedule lists each Employee Benefit Plan. With respect to each Employee Benefit Plan, the Company has provided or made available to Parent true and complete copies of: (i) such Employee Benefit Plan, if written, or a description of such Employee Benefit Plan, if not written, and (ii) to the extent applicable to such Employee Benefit Plan: all trust agreements, insurance contracts or other funding arrangements; the most recent three Forms 5500 required to have been filed with the Department of Labor and all schedules thereto and (if applicable) financial statements with attached opinions of independent accountants; the most recent IRS determination, advisory or opinion letter; all current employee handbooks or manuals; all current summary plan descriptions and summaries of material modifications; all material communications received from or sent to the IRS or the Department of Labor (including a written description of any oral communication) within the last three years and all Forms 5330 filed by the Company or any ERISA Affiliate, whether related to an Employee Benefit Plan or otherwise; and all amendments and modifications to any such document. (c) Each Employee Benefit Plan has been operated and administered in compliance with its terms and has been established, operated and administered in compliance with all applicable Laws, including ERISA and the Code. All contributions and premiums required to have been paid by the Company and its ERISA Affiliates to or with respect to any Employee Benefit Plan under the terms of any such Employee Benefit Plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable Law have been paid within the time prescribed by any such Employee Benefit Plan, arrangement or applicable Law. None of the Company, any ERISA Affiliate, nor, to the Knowledge of Holdings or to the Knowledge of the Company, any Employee Benefit Plan fiduciary has, with respect to the Employee Benefit Plans, engaged in a breach of fiduciary duty or a non-exempt “prohibited transaction,” as such term is defined in Code §4975 or ERISA §406. (d) In the case of each Employee Benefit Plan that is an “employee welfare benefit plan” as defined in §3(1) of ERISA, Section 3.21(d) of the Company Disclosure Schedule states whether such plan is (i) unfunded, (ii) funded through a “welfare benefit fund”, as such term is defined in Section 419(e) of the Code, or other funding mechanism or (iii) insured. (e) All required or discretionary (in accordance with historical practices) payments, premiums, contributions, reimbursements, or accruals for all periods ending prior to or as of the Closing Date in respect of any Employee Benefit Plan shall have been made or properly accrued on the Reference Balance Sheet or will be properly accrued on the books and records of the Company and each ERISA Affiliate as of the Closing Date. To the extent required by generally accepted accounting principles, all unfunded liabilities in respect of any Employee Benefit Plan have been reflected on the Reference Balance Sheet or the books and records of the Company and each ERISA Affiliate. Neither the Company nor any ERISA Affiliate has any assets subject to (or expected to be subject to) a lien for unpaid contributions to any Employee Benefit Plan. (f) There is no action, claim, complaint, investigation, petition, suit, or other proceeding pending or, to the Knowledge of Holdings or to the Knowledge of the Company, threatened with respect to any Employee Benefit Plan or the assets of any Employee Benefit Plan (other than routine claims for benefits) and, to the Knowledge of Holdings or to the Knowledge of the Company, no facts or circumstances exist that reasonably could reasonably be expected to give rise to any such action, claim, complaint, investigation, petition, suit, or other proceeding or Liabilities in the event thereof. (g) Each Employee Benefit Plan that is intended to be qualified under Code §401(a), and the trust (if any) forming a part thereof, has received a favorable determination letter (or an opinion or advisory letter on which it is entitled to rely) from the IRS as to its qualification under the Code and to the effect that each such trust is exempt from taxation under Code §501(a) and nothing has occurred since the date of such determination letter that could reasonably be expected to adversely affect such qualification or tax-exempt status. All amendments and actions required to bring each Employee Benefit Plan into conformity with applicable provisions of all applicable Laws, including ERISA and the Code, have been made or taken, except to the extent that such amendments or actions are not required by applicable Law to be made or taken until after the Closing Date. (h) Each Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Code §409A(d)(1), excluding any grandfathered amounts which have not been materially modified for purposes of Code §409A) has been operated since January 1, 2005, in compliance with the applicable provisions of Code §409A, and since January 1, 2009 has been in documentary compliance with the applicable provisions of Code §409A; and neither the Company nor any ERISA Affiliate has been required to report any Taxes due as a result of a failure of an Employee Benefit Plan to comply with Code §409A. No Holdings Option has an exercise price that was less than the fair market value of Holdings Common Stock on the date of grant as determined under Code §409A or is otherwise in violation of Code §409A. Neither the Company and its ERISA Affiliates nor any current or former employee or independent contractor have incurred any Liabilities (including as a result of any indemnification, reimbursement, “gross-up” or similar obligation) arising out of or relating to Code §409A, and no condition exists that would reasonably be expected to subject such Person to any Liabilities (including as a result of any indemnification obligation) arising out of or relating to Code §409A. (i) Except as otherwise set forth on Section 3.21(i) of the Company Disclosure Schedule, each 4001 of the Employee Benefit Plans can be terminated at any time in the sole discretion Retirement Income Security Act of the plan sponsor1974, without any additional contribution to such Employee Benefit Plan or the payment of any additional compensation or amount or acceleration of any benefits. Nothing under the provisions of an Employee Benefit Plan subject to Section 401(aas amended (“ERISA”), 403(a) or 403(b) of the Code prohibits the prompt distribution of all amounts under any such Employee Benefit Plan, provided that such Employee Benefit Plan is terminated by the plan sponsor prior to such distribution. (j) No Employee Benefit Plan is, and neither the Company nor any ERISA Affiliate has within the last six (6) years contributed to or had any obligation to contribute to: (i) a “multiple employer plan” for purposes of §4063, §4064 or §4066 of ERISA, (ii) a “multiemployer plan” within the meaning of §3(37) or §4001(a)(3) of ERISA, (iii) a plan subject to Code §412 or §302 or Title IV of ERISA, or (iv) a “multiple employer welfare arrangement” as defined in §3(40) of ERISA. None of the Company and its Subsidiaries nor any ERISA Affiliate has incurred any material Liabilities (including as a result of any indemnification obligation) under Title I or Title IV of ERISA for which the Company and its ERISA Affiliates could be liable, and, to the Knowledge of Holdings or to the Knowledge of the Company, no condition exists that would subject the Company and its ERISA Affiliates to any material Tax, fine, Encumbrance, or other Liabilities imposed by ERISA, the Code or other applicable Law. (k) Except as set forth on Section 3.21(k) of the Company Disclosure Schedule, none of the Employee Benefit Plans, nor any trust created thereunder, now holds or has heretofore held as assets any stock or securities issued by the Company or any ERISA Affiliate. (l) Except as set forth on Section 3.21(l) of the Company Disclosure Schedule, no current or former employee, officer, director or independent contractor of the Company and its ERISA Affiliates, or any dependent or beneficiary of any such Person, is or will become entitled to death or post-employment death, medical or health benefits or other welfare benefits (through insurance or otherwise) after such person’s retirement or other termination of employment other than coverage mandated by COBRA, and there has been no communication to any Person that could reasonably be expected to promise or guarantee any such benefits. (m) To the Knowledge of Holdings or the Knowledge of the Company, no condition exists as a result of which the Company or any ERISA Affiliate could reasonably be expected to have any material Liabilities, including any obligations under the Employee Benefit Plans, with respect to any misclassification of a Person performing services for the Company or an ERISA Affiliate as an independent contractor or the employee of another entity rather than as an employee of the Company or an ERISA Affiliate. (n) Except as set forth on Section 3.21(n) of the Company Disclosure Schedule, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in combination with another event, (i) entitle any current or former employee, officer, director or independent contractor of the Company and its ERISA Affiliates to severance pay, unemployment compensation or any other payment or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such individual or require any contributions or payments to fund any obligations under any Employee Benefit Plan. Any severance pay in respect to former employees of the Company and its ERISA Affiliates has been paid, or shall have been paid or accrued as a Liability, by the Company as of the Closing. The consummation of the transactions contemplated by this Agreement (either alone or in combination with any other event or events) will not give rise to any payment (or acceleration of vesting of any amounts or benefits) that will be an “excess parachute payment” as defined in Code §280G. (o) The Company and its ERISA Affiliates do not have any legally binding plan or commitment to create any additional Employee Benefit Plan or modify or change any existing Employee Benefit Plan that could be reasonably expected to result in material Liabilities to the Company and its ERISA Affiliates, except as may be required by applicable Law.

Employees; Employee Benefit Plans. (a) Except Employees. Section 3.11(a) of the Company Disclosure Schedule sets forth the name and current rate of compensation of the employees of the Company and its Subsidiaries (“Employees”) as of October 20, 2005. There are no accrued and unpaid vacation pay for any Employees except for the accruals set forth on Section 3.21(a3.11(a) of the Company Disclosure Schedule, neither the . The Company nor any Subsidiary thereof is not a party to or bound by any collective bargaining agreement or any other similar agreementagreement with a labor union, and there are no labor unions or other organizations representingand, purporting to represent or attempting to represent any employees employed by the Company or any Subsidiary in their capacities as such. Within the past three (3) yearsCompany’s knowledge, there has not occurred or, to the Knowledge of Holdings or to the Knowledge of the Company, been threatened any attempt no effort by any labor union or other labor organization during the 24 months prior to the date hereof to organize any employees of the Company into one or more collective bargaining units. There is no pending or, to the SubsidiariesCompany’s knowledge, any strikethreatened labor dispute, slowdown, picketing, strike or work stoppage, concerted refusal to work overtime, stoppage which affects or other similar labor activity with respect to any employee which may affect the business of the Company or which may interfere with its continued operations. Neither the Company nor any Subsidiaryagent, representative or employee thereof has within the last 24 months committed any unfair labor practice as defined in the National Labor Relations Act, as amended, and to the Knowledge of Holdings and to the Knowledge of the Company, there is no event has occurred or circumstance exists that may provide the basis of any strike, slowdown, picketing, work stoppage, concerted refusal to work overtime, employee union organizing or election activities, or other similar labor activity. Except as set forth on Section 3.21(a) of the Company Disclosure Schedule, there are no pending, recently resolved (i.e., within the past three (3) years) pending or, to the to the Knowledge of Holdings or to the Knowledge of the Company’s knowledge, threatened material employment disputes, claims, investigations, hearings, audits, reviews, abatement programs, settlements, grievances, mediations, arbitrations, charge or complaints currently subject to any grievance procedure, arbitration, litigation, internal or external investigation, or any other proceeding complaint against the Company by or with the National Labor Relations Board or any representative thereof. There has been no strike, walkout or work stoppage or threat thereof involving any of the Subsidiariesemployees of the Company during the 24 months prior to the date hereof. The Company and each Subsidiary have has complied in all material respects with all applicable Laws pertaining to the employment or termination of employment of its employeesLaws, including all such laws rules and regulations relating to classification of employees employment, civil rights and independent contractors, equal employment opportunities, fair employment practices, civil rights, affirmative action, background checking, verification of employment eligibility, immigration, labor relations, occupational health and safetyincluding but not limited to, the payment and withholding Civil Rights Act of taxes1964, maintenance of workers’ compensation insurance and unemployment tax registration, prohibited discrimination, wages, hoursthe Fair Labor Standards Act, and overtimethe Americans with Disabilities Act, working conditions, employee leave, and other similar employment activities. The Company and each Subsidiary are not subject to any consent decree, injunction, or other form of court or Governmental Order relating to any employment practice or matter. The Company and the Subsidiaries have not, within the two (2) years prior to the date of this Agreement, taken any action that, alone or combined with any other action of the Company and the Subsidiaries, could reasonably be construed as a “plant closing” or “mass layoff” within the meaning of the WARN Act and any applicable state law, and Section 3.21(a) of the Company Disclosure Schedule identifies all employees who have been “laid off” within the meaning of the WARN Act or any applicable state law within the two (2) years prior to the date of this Agreement. Holdings has no, and has never had any, employeesamended. (b) Section 3.21(b3.11(b) of the Company Disclosure Schedule lists each all employee benefit plans (as defined in Section 3(3) of the Employee Benefit Plan. With Retirement Income Security Act of 1974, as amended (“ERISA”)) and all bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance or other benefit plans, programs or arrangements, and all employment, termination, severance or other contracts or agreements to which the Company or any Subsidiary is a party, with respect to each Employee Benefit Planwhich the Company or any Subsidiary has any obligation or which are maintained, contributed to or sponsored by the Company or any Subsidiary for the benefit of any current or former employee, consultant, officer or director of the Company or any Subsidiary (collectively, the “Plans”). The Company has provided or made available to Parent a true and complete copies of: copy of each Plan and has made available to Parent a true and complete copy of (iwhere applicable) (A) each trust or funding arrangement prepared in connection with each such Employee Benefit Plan, if written(B) the two most recently filed annual reports on Internal Revenue Service (“IRS”) Form 5500, (C) the most recently received IRS determination letter for each such Plan, (D) the two most recently prepared actuarial reports and financial statements in connection with each such Plan, and (E) the most recent summary plan description and any material written communications (or a description of any material oral communications) by the Company or the Subsidiaries to any current or former employees, consultants, or directors of the Company or any Subsidiary concerning the extent of the benefits provided under a Plan. (c) Neither the Company nor any Subsidiary has now or at any time contributed to, sponsored, or maintained (i) a pension plan (within the meaning of Section 3(2) of ERISA) subject to Sxxxxxx 000 xx xxx Xxxxxx Xxxxxx Internal Revenue Code of 1986, as amended (the “Code”) or Title IV of ERISA; (ii) a multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a “Multiemployer Plan”); or (iii) a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which the Company or any Subsidiary could incur liability under Section 4063 or 4064 of ERISA (a “Multiple Employer Plan”). No Plan exists that could result in the payment to any present or former employee, director or consultant of the Company or any Subsidiary of any money or other property or accelerate or provide any other rights or benefits to any current or former employee of the Company or any Subsidiary as a result of the consummation of the Transactions (whether alone or in connection with any subsequent event). There is no contract, plan or arrangement (written or otherwise) covering any current or former employee of the Company or any Subsidiary 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 of the Code. (d) With respect to the Plans, no event has occurred and, to the knowledge of the Company, there exists no condition or set of circumstances, in connection with which the Company or any Subsidiary could reasonably be expected to be subject to any actual or contingent liability under the terms of such Employee Benefit PlanPlan or any applicable Law which would reasonably be expected to have a Company Material Adverse Effect. (e) Each Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter or prototype opinion letter from the IRS covering all of the provisions applicable to the Plan for which determination letters or prototype opinion letters are currently available that the Plan is so qualified and each trust established in connection with any Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, if and, to the knowledge of the Company, no circumstance exists that could reasonably be expected to result in the revocation of such exemption. (i) Each Plan has been established and administered in accordance with its terms, and in compliance with the applicable provisions of ERISA, the Code and other applicable Laws, except to the extent such noncompliance, individually or in the aggregate, would not writtenreasonably be expected to have a Company Material Adverse Effect, and (ii) to the extent applicable to such Employee Benefit Plan: all trust agreementsno Plan provides retiree welfare benefits, insurance contracts or other funding arrangements; the most recent three Forms 5500 required to have been filed with the Department of Labor and all schedules thereto and (if applicable) financial statements with attached opinions of independent accountants; the most recent IRS determination, advisory or opinion letter; all current employee handbooks or manuals; all current summary plan descriptions and summaries of material modifications; all material communications received from or sent to the IRS or the Department of Labor (including a written description of any oral communication) within the last three years and all Forms 5330 filed by the Company or any ERISA Affiliate, whether related to an Employee Benefit Plan or otherwise; and all amendments and modifications to any such document. (c) Each Employee Benefit Plan has been operated and administered in compliance with its terms and has been established, operated and administered in compliance with all applicable Laws, including ERISA and the Code. All contributions and premiums required to have been paid by the Company and its ERISA Affiliates to or with respect to any Employee Benefit Plan under the terms of any such Employee Benefit Plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable Law have been paid within the time prescribed by any such Employee Benefit Plan, arrangement or applicable Law. None of the Company, any ERISA Affiliate, nor, to the Knowledge of Holdings or to the Knowledge of the Company, any Employee Benefit Plan fiduciary has, with respect to the Employee Benefit Plans, engaged in a breach of fiduciary duty or a non-exempt “prohibited transaction,” as such term is defined in Code §4975 or ERISA §406. (d) In the case of each Employee Benefit Plan that is an “employee welfare benefit plan” as defined in §3(1) of ERISA, Section 3.21(d) of the Company Disclosure Schedule states whether such plan is (i) unfunded, (ii) funded through a “welfare benefit fund”, as such term is defined in Section 419(e) of the Code, or other funding mechanism or (iii) insured. (e) All required or discretionary (in accordance with historical practices) payments, premiums, contributions, reimbursements, or accruals for all periods ending prior to or as of the Closing Date in respect of any Employee Benefit Plan shall have been made or properly accrued on the Reference Balance Sheet or will be properly accrued on the books and records of the Company and each ERISA Affiliate as of the Closing Date. To the extent required by generally accepted accounting principles, all unfunded liabilities in respect of any Employee Benefit Plan have been reflected on the Reference Balance Sheet or the books and records of the Company and each ERISA Affiliate. Neither neither the Company nor any ERISA Affiliate Subsidiary has any assets subject obligation to (or expected to be subject to) a lien for unpaid contributions to provide any Employee Benefit Planretiree welfare benefits other than as required by Section 4980B of the Code. (fg) There is no action, claim, complaint, investigation, petition, suit, or other proceeding pending or, to the Knowledge of Holdings or to the Knowledge of the Company, threatened with With respect to any Employee Benefit Plan or the assets of any Employee Benefit Plan Plan, (i) no Actions (other than routine claims for benefitsbenefits in the ordinary course) andare pending or, to the Knowledge knowledge of Holdings or the Company, threatened, that would reasonably be expected to have a Company Material Adverse Effect, (ii) to the Knowledge knowledge of the Company, no facts or circumstances exist that reasonably could reasonably be expected to give rise to any such action, claim, complaint, investigation, petition, suit, or other proceeding or Liabilities in the event thereof. (g) Each Employee Benefit Plan that is intended to be qualified under Code §401(a)Actions, and the trust (if any) forming a part thereof, has received a favorable determination letter (or an opinion or advisory letter on which it is entitled to rely) from the IRS as to its qualification under the Code and to the effect that each such trust is exempt from taxation under Code §501(a) and nothing has occurred since the date of such determination letter that could reasonably be expected to adversely affect such qualification or tax-exempt status. All amendments and actions required to bring each Employee Benefit Plan into conformity with applicable provisions of all applicable Laws, including ERISA and the Code, have been made or taken, except to the extent that such amendments or actions are not required by applicable Law to be made or taken until after the Closing Date. (h) Each Employee Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Code §409A(d)(1), excluding any grandfathered amounts which have not been materially modified for purposes of Code §409A) has been operated since January 1, 2005, in compliance with the applicable provisions of Code §409A, and since January 1, 2009 has been in documentary compliance with the applicable provisions of Code §409A; and neither the Company nor any ERISA Affiliate has been required to report any Taxes due as a result of a failure of an Employee Benefit Plan to comply with Code §409A. No Holdings Option has an exercise price that was less than the fair market value of Holdings Common Stock on the date of grant as determined under Code §409A or is otherwise in violation of Code §409A. Neither the Company and its ERISA Affiliates nor any current or former employee or independent contractor have incurred any Liabilities (including as a result of any indemnification, reimbursement, “gross-up” or similar obligation) arising out of or relating to Code §409A, and no condition exists that would reasonably be expected to subject such Person to any Liabilities (including as a result of any indemnification obligation) arising out of or relating to Code §409A. (i) Except as otherwise set forth on Section 3.21(i) of the Company Disclosure Schedule, each of the Employee Benefit Plans can be terminated at any time in the sole discretion of the plan sponsor, without any additional contribution to such Employee Benefit Plan or the payment of any additional compensation or amount or acceleration of any benefits. Nothing under the provisions of an Employee Benefit Plan subject to Section 401(a), 403(a) or 403(b) of the Code prohibits the prompt distribution of all amounts under any such Employee Benefit Plan, provided that such Employee Benefit Plan is terminated by the plan sponsor prior to such distribution. (j) No Employee Benefit Plan is, and neither the Company nor any ERISA Affiliate has within the last six (6) years contributed to or had any obligation to contribute to: (i) a “multiple employer plan” for purposes of §4063, §4064 or §4066 of ERISA, (ii) a “multiemployer plan” within the meaning of §3(37) or §4001(a)(3) of ERISA, (iii) a plan subject to Code §412 no administrative investigation, audit or §302 other administrative proceeding by the Department of Labor, the IRS or Title IV of ERISAother Governmental Authority is pending, or (iv) a “multiple employer welfare arrangement” as defined in §3(40) of ERISA. None of the Company and its Subsidiaries nor any ERISA Affiliate has incurred any material Liabilities (including as a result of any indemnification obligation) under Title I or Title IV of ERISA for which the Company and its ERISA Affiliates could be liable, andprogress or, to the Knowledge of Holdings or to the Knowledge knowledge of the Company, no condition exists that would subject the Company and its ERISA Affiliates to any material Tax, fine, Encumbrance, or other Liabilities imposed by ERISA, the Code or other applicable Lawthreatened. (k) Except as set forth on Section 3.21(k) of the Company Disclosure Schedule, none of the Employee Benefit Plans, nor any trust created thereunder, now holds or has heretofore held as assets any stock or securities issued by the Company or any ERISA Affiliate. (l) Except as set forth on Section 3.21(l) of the Company Disclosure Schedule, no current or former employee, officer, director or independent contractor of the Company and its ERISA Affiliates, or any dependent or beneficiary of any such Person, is or will become entitled to death or post-employment death, medical or health benefits or other welfare benefits (through insurance or otherwise) after such person’s retirement or other termination of employment other than coverage mandated by COBRA, and there has been no communication to any Person that could reasonably be expected to promise or guarantee any such benefits. (m) To the Knowledge of Holdings or the Knowledge of the Company, no condition exists as a result of which the Company or any ERISA Affiliate could reasonably be expected to have any material Liabilities, including any obligations under the Employee Benefit Plans, with respect to any misclassification of a Person performing services for the Company or an ERISA Affiliate as an independent contractor or the employee of another entity rather than as an employee of the Company or an ERISA Affiliate. (n) Except as set forth on Section 3.21(n) of the Company Disclosure Schedule, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in combination with another event, (i) entitle any current or former employee, officer, director or independent contractor of the Company and its ERISA Affiliates to severance pay, unemployment compensation or any other payment or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such individual or require any contributions or payments to fund any obligations under any Employee Benefit Plan. Any severance pay in respect to former employees of the Company and its ERISA Affiliates has been paid, or shall have been paid or accrued as a Liability, by the Company as of the Closing. The consummation of the transactions contemplated by this Agreement (either alone or in combination with any other event or events) will not give rise to any payment (or acceleration of vesting of any amounts or benefits) that will be an “excess parachute payment” as defined in Code §280G. (o) The Company and its ERISA Affiliates do not have any legally binding plan or commitment to create any additional Employee Benefit Plan or modify or change any existing Employee Benefit Plan that could be reasonably expected to result in material Liabilities to the Company and its ERISA Affiliates, except as may be required by applicable Law.

Employees; Employee Benefit Plans. (a) Except as set forth on Section 3.21(a) The employment of each employee of the Company Disclosure Schedule, neither is terminable at will. No employee of the Company nor any Subsidiary thereof is a party has been granted the right to or bound by any collective bargaining agreement or other similar agreement, and there are no labor unions or other organizations representing, purporting to represent or attempting to represent any employees employed continued employment by the Company or to any Subsidiary material compensation following termination of employment with the Company. The Company is not in their capacities as suchdefault with respect to any obligation to any of its employees in any material respect. Within the past three (3) years, there has not occurred or, to the Knowledge of Holdings or to the Knowledge No employee of the Company, been threatened any attempt Company is represented by any labor union or other labor organization to organize covered by any employees of the Company or the Subsidiaries, any strike, slowdown, picketing, work stoppage, concerted refusal to work overtime, or other similar labor activity with respect to any employee of the Company or any Subsidiary, and to the Knowledge of Holdings and to the Knowledge of the Company, collective bargaining agreement. There is no event has occurred or circumstance exists that may provide the basis of any strike, slowdown, picketing, work stoppage, concerted refusal to work overtime, employee union organizing or election activities, or other similar labor activity. Except as set forth on Section 3.21(a) of the Company Disclosure Schedule, there are no pending, recently resolved (i.e., within the past three (3) years) pending or, to the to the Knowledge of Holdings or to the Knowledge of the Company’s Knowledge, threatened material employment disputesdispute or Action involving the Company and any employee or group of its employees, claimsincluding, investigationswithout limitation, hearingscharges of discrimination, audits, reviews, abatement programs, settlements, grievances, mediations, arbitrationsretaliation, or complaints currently subject to any grievance procedure, arbitration, litigation, internal violation of equal opportunity or external investigation, or any other proceeding against the Company or any of the Subsidiariesanti-discrimination Laws. The Company has complied and each Subsidiary have complied is currently complying in all material respects with all applicable Laws pertaining to the employment or termination of employment of its employees, including all such laws relating to classification of employees employment and independent contractors, equal employment opportunities, fair employment practices, civil rights, affirmative action, background checking, verification terms and conditions of employment eligibility, immigration, labor relations, occupational health and safety, the payment and withholding of taxes, maintenance of workers’ compensation insurance and unemployment tax registration, prohibited discrimination, wages, hoursemployment, and overtime, working conditions, employee leave, wages and other similar employment activitieshours. The Company has not been notified of any pending or threatened investigation by any branch or department of U.S. Immigration and each Subsidiary are not subject to any consent decree, injunction, Customs Enforcement (“ICE”) or other form federal agency charged with administration and enforcement of court or Governmental Order relating to any employment practice or matter. The Company federal immigration laws concerning the Company, and the Subsidiaries have notCompany has not received any “no match” notices from ICE, within the two (2) years prior to Social Security Administration or the date of this Agreement, taken any action that, alone or combined with any other action of the Company and the Subsidiaries, could reasonably be construed as a “plant closing” or “mass layoff” within the meaning of the WARN Act and any applicable state law, and Section 3.21(a) of the Company Disclosure Schedule identifies all employees who have been “laid off” within the meaning of the WARN Act or any applicable state law within the two (2) years prior to the date of this Agreement. Holdings has no, and has never had any, employeesInternal Revenue Service. (b) Section 3.21(b3.17(b) of the Company Disclosure Schedule lists Letter sets forth a complete and correct list of each Employee Benefit Plan. With A copy of each Benefit Plan has been made available to Parent, including, (A) the two (2) most recent annual report on Form 5500 filed with the IRS with respect to each Employee Benefit Plan (if any such report was required) and schedules thereto, (B) the most recent summary plan description or similar document for each such Benefit Plan for which such summary plan description is required or was otherwise provided to plan participants or beneficiaries, (C) the most recent actuarial report or other financial statement, if any, relating to such Benefit Plan, (D) the Company has provided most recent determination letter or made available opinion letter, if any, issued by the IRS with respect to Parent true such Benefit Plan and complete copies of: any pending request for such a determination letter, (iE) each trust agreement and insurance annuity contract, if any, relating to any such Employee Benefit Plan, if written, or a description of such Employee Benefit Plan, if not written, and (iiF) to the extent applicable to such Employee Benefit Plan: all trust agreements, insurance contracts or other funding arrangements; the two (2) most recent three Forms 5500 required to have been filed with the Department of Labor and all schedules thereto and nondiscrimination testing results (if applicable) financial statements with attached opinions and (G) written descriptions of independent accountants; the most recent IRS determination, advisory or opinion letter; all current employee handbooks or manuals; all current summary plan descriptions and summaries of material modifications; all material communications received from or sent non-written agreements relating to the IRS or the Department of Labor (including a written description of any oral communication) within the last three years and all Forms 5330 filed by the Company or any ERISA Affiliate, whether related to an Employee Benefit Plan or otherwise; and all amendments and modifications to any such documentPlans. (c) Each Employee Benefit Plan Neither the Company nor any Company ERISA Affiliate participates currently or has been operated ever participated in and administered in compliance with its terms is not required currently and has never been establishedrequired to contribute to or otherwise participate in any multiemployer plans (as defined in Section 3(37) of ERISA), operated and administered any multiple employer plan (as defined in compliance with all applicable Laws, including ERISA and Section 413(c) of the Code. All contributions and premiums required to have been paid by the Company and its ERISA Affiliates to or with respect to any Employee Benefit Plan under the terms of any such Employee Benefit Plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable Law have been paid within the time prescribed by any such Employee Benefit Plan, arrangement or applicable Law. None of the Company), any ERISA Affiliate, nor, to the Knowledge of Holdings or to the Knowledge of the Company, any Employee Benefit Plan fiduciary has, with respect to the Employee Benefit Plans, engaged in a breach of fiduciary duty or a non-exempt “prohibited transaction,” as such term is defined in Code §4975 or ERISA §406. (d) In the case of each Employee Benefit Plan that is an “employee welfare benefit plan” as defined in §3(1Section 3(35) of ERISA, any pension plan subject to the funding standards of Section 3.21(d) 302 of the Company Disclosure Schedule states whether such plan is (i) unfunded, (ii) funded through a “welfare benefit fund”, as such term is defined in ERISA or Section 419(e) 412 of the Code, any plan, program or other funding mechanism arrangement subject to Title IV of ERISA, or (iiiany multiple employer welfare arrangement as defined in Section 3(40) insured. (e) All required or discretionary (of ERISA. Each Benefit Plan has been operated, maintained and administered in accordance with historical practices) paymentsits terms and with the requirements of applicable Law, premiumsincluding ERISA, contributionsthe Code and the Patient Protection and Affordable Care Act, reimbursementsas amended by the Health Care and Education Reconciliation Act of 2010. There has been no violation of or failure to comply with ERISA or the Code with respect to the filing of applicable returns, or accruals for all periods ending prior to or as reports, documents and notices regarding any of the Closing Date in respect Benefit Plans with any Governmental Entity or the furnishing of any Employee Benefit Plan shall have been made such notices or properly accrued on documents to the Reference Balance Sheet participants or will be properly accrued on the books and records beneficiaries of the Benefit Plans. Neither the Company, nor any Company and each ERISA Affiliate as Affiliate, “party in interest” or “disqualified person” with respect to the Benefit Plans has engaged in a material “prohibited transaction” within the meaning of Section 4975 of the Closing DateCode or Section 406 of ERISA for which an applicable statutory or administrative exemption does not exist. To the extent required by generally accepted accounting principlesAll benefits, all unfunded liabilities in respect of any Employee contributions and premiums relating to each Benefit Plan have been reflected on timely paid in accordance with the Reference Balance Sheet terms of such Benefit Plan and all applicable laws and accounting principles, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the books extent required by, and records of the Company and each ERISA Affiliate. Neither the Company nor any ERISA Affiliate has any assets subject to (or expected to be subject to) a lien for unpaid contributions to any Employee Benefit Planin accordance with, GAAP. (fd) There is no action, claim, complaint, investigation, petition, suit, or other proceeding pending or, to the Knowledge of Holdings or to the Knowledge of the Company, threatened with respect to any Employee Each Benefit Plan or the assets of any Employee Benefit Plan (other than routine claims for benefits) and, to the Knowledge of Holdings or to the Knowledge of the Company, no facts or circumstances exist that reasonably could reasonably be expected to give rise to any such action, claim, complaint, investigation, petition, suit, or other proceeding or Liabilities in the event thereof. (g) Each Employee Benefit Plan that is intended to be qualified under “qualified” within the meaning of Section 401(a) of the Code §401(a), and the trust (if any) forming a part thereof, has received a favorable determination or opinion letter from the IRS stating that it (or an opinion the master or advisory letter prototype form on which it is entitled to relyestablished) from the IRS as to its qualification under the Code is so qualified, and to the effect that each such trust is exempt from taxation under Code §501(a) and nothing Company’s Knowledge, no event has occurred since the date of such determination or opinion letter that could would reasonably be expected to adversely affect the qualified status of any such qualification or tax-exempt status. All amendments and actions required to bring each Employee Benefit Plan. (e) Each Benefit Plan into conformity that is a “group health plan” has complied in all respects in form, operation and administration with applicable provisions of all applicable Lawsthe employer shared responsibility mandate, including ERISA and the Code, have been made or taken, except to the extent that such amendments or actions are applicable, under Code Section 4980H, and the Company is not required by applicable Law subject to, nor reasonably could be expected to be made subject to, any “assessable payments” (within the meaning of Code Section 4980H). Except as otherwise provided herein, the execution of this Agreement or taken until after the Closing Date. consummation of the Merger will not (heither alone or upon the occurrence of any additional events that, standing alone, would not trigger such benefits) (i) entitle any Person to severance payable by the Company or its Affiliates, (ii) accelerate the time of funding, vesting or payment of any benefits under any of the Benefit Plans or (iii) result in the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” with respect to any Person within the meaning of Section 280G(b) of the Code. Each Employee Benefit Plan that is a “nonqualified deferred compensation plancompensation” (as defined in plan within the meaning of Section 409A of the Code §409A(d)(1), excluding any grandfathered amounts which have not been materially modified for purposes of Code §409A) has been operated since January 1, 2005, in material compliance with the such section and all applicable provisions of Code §409A, and since January 1, 2009 has been in documentary compliance with the applicable provisions of Code §409A; and neither the Company nor any ERISA Affiliate has been required to report any Taxes due as a result of a failure of an Employee Benefit Plan to comply with Code §409A. No Holdings Option has an exercise price that was less than the fair market value of Holdings Common Stock on the date of grant as determined under Code §409A or is otherwise in violation of Code §409A. Neither the Company and its ERISA Affiliates nor any current or former employee or independent contractor have incurred any Liabilities regulatory guidance (including as a result of notices, rulings and proposed and final regulations). The Company does not have any indemnification, reimbursement, actual or potential obligation to reimburse or otherwise “gross-up” any Person for the interest or similar obligationadditional tax set forth under Section 409(A)(a)(1)(B) arising out of or relating to Code §409A, and no condition exists that would reasonably be expected to subject such Person to any Liabilities the Code. (including as a result of any indemnification obligationf) arising out of or relating to Code §409A. There are (i) Except as otherwise set forth on Section 3.21(i) of no current, pending or, to the Company Disclosure ScheduleCompany’s Knowledge, each of the Employee threatened investigations by any Governmental Entity involving Benefit Plans can be terminated at any time in the sole discretion of the plan sponsor, without any additional contribution to such Employee Benefit Plan or the payment of any additional compensation or amount or acceleration of any benefits. Nothing under the provisions of an Employee Benefit Plan subject to Section 401(a), 403(a) or 403(b) of the Code prohibits the prompt distribution of all amounts under any such Employee Benefit Plan, provided that such Employee Benefit Plan is terminated by the plan sponsor prior to such distribution. (j) No Employee Benefit Plan isPlans, and neither the Company nor any ERISA Affiliate has within the last six (6) years contributed to or had any obligation to contribute to: (i) a “multiple employer plan” for purposes of §4063, §4064 or §4066 of ERISA, (ii) a “multiemployer plan” within no pending, asserted or, to the meaning of §3(37) Company’s Knowledge, threatened claims (other than routine claims for benefits), suits or §4001(a)(3) of ERISA, (iii) a plan subject to Code §412 or §302 or Title IV of ERISA, or (iv) a “multiple employer welfare arrangement” as defined in §3(40) of ERISAproceedings against any Benefit Plans. None of the Company and its Subsidiaries nor any ERISA Affiliate has incurred any material Liabilities (including as a result of any indemnification obligation) under Title I or Title IV of ERISA Benefit Plans provides for which the Company and its ERISA Affiliates could be liable, and, to the Knowledge of Holdings or to the Knowledge of the Company, no condition exists that would subject the Company and its ERISA Affiliates to any material Tax, fine, Encumbrance, or other Liabilities imposed by ERISA, the Code or other applicable Law. (k) Except as set forth on Section 3.21(k) of the Company Disclosure Schedule, none of the Employee Benefit Plans, nor any trust created thereunder, now holds or has heretofore held as assets any stock or securities issued by the Company or any ERISA Affiliate. (l) Except as set forth on Section 3.21(l) of the Company Disclosure Schedule, no current or former employee, officer, director or independent contractor of the Company and its ERISA Affiliates, or any dependent or beneficiary of any such Person, is or will become entitled to death or post-employment deathlife, health or medical insurance or life, health, medical or health benefits or other welfare benefits (through insurance or otherwise) after such person’s retirement coverage for any participant or other any beneficiary of a participant following termination of employment other than coverage mandated by COBRA, and there has been no communication to any Person that could reasonably be expected to promise or guarantee any such benefits. (m) To the Knowledge of Holdings or the Knowledge of the Company, no condition exists as a result of which the Company or any ERISA Affiliate could reasonably be expected to have any material Liabilities, including any obligations under the Employee Benefit Plans, with respect to any misclassification of a Person performing services for the Company or an ERISA Affiliate as an independent contractor or the employee of another entity rather than as an employee of the Company or an ERISA Affiliate. (n) Except as set forth on Section 3.21(n) of the Company Disclosure Schedule, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will, either alone or in combination with another event, (i) entitle any current or former employee, officer, director or independent contractor of the Company and its ERISA Affiliates to severance pay, unemployment compensation or any other payment or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such individual or require any contributions or payments to fund any obligations under any Employee Benefit Plan. Any severance pay in respect to former employees of the Company and its ERISA Affiliates has been paid, or shall have been paid or accrued as a Liability, by the Company as of the Closing. The consummation of the transactions contemplated by this Agreement (either alone or in combination with any other event or events) will not give rise to any payment (or acceleration of vesting of any amounts or benefits) that will be an “excess parachute payment” as defined in Code §280G. (o) The Company and its ERISA Affiliates do not have any legally binding plan or commitment to create any additional Employee Benefit Plan or modify or change any existing Employee Benefit Plan that could be reasonably expected to result in material Liabilities to the Company and its ERISA Affiliatesemployment, except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or applicable state law or otherwise. (g) Each individual who is classified by applicable Lawthe Company or any Affiliate thereof as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.