Common use of ERISA and Employee Benefit Plans Clause in Contracts

ERISA and Employee Benefit Plans. (a) Except as disclosed in any of the SEC Filings, neither of the Company nor any of its subsidiaries maintains, sponsors, is required to make contributions to or otherwise has any liability, direct, indirect, contingent or otherwise, with respect to any pension, profit sharing, thrift or other retirement plan, employee stock ownership plan, deferred compensation, stock ownership, stock purchase, performance share, bonus or other incentive plan, severance plan, health or group insurance plan, welfare plan, or other similar plan, agreement, policy, arrangement or understanding, whether written or oral, whether or not such plan is intended to be qualified under Section 401(a) of the Code, including any employee benefit plan within the meaning of Section 3(3) of ERISA, which plan covers any employee or former employee of the Company or any of its subsidiaries (collectively, the "Plans"). (b) The Company has delivered to the Purchaser, or the same are available as exhibits to or are disclosed into reports, registration statements, proxy statements or other filings made by the Company with the Commission, true, correct and complete copies of each of the following: (i) any employment agreements and any procedure and policy manuals relating to the employment of employees of the Company and each of its subsidiaries and the use of temporary employees and independent contractors by the Company and each of its subsidiaries; (ii) each Plan and all related trust agreements, insurance and other material contracts, and summary plan descriptions and summaries of material modifications relating to each Plan and any related material communications distributed to participants under the Plans; and (iii) the latest reports which have been filed (or are in fully completed form for filing) with the Internal Revenue Service and the Department of Labor with respect to each Plan. (c) With respect to each Plan, to the best knowledge of the Company, no party in interest or disqualified person (as defined in Section 3(14) of ERISA and Section 4975 of the Code, respectively) has at any time engaged in a transaction which could subject the Company or any of its subsidiaries to a Tax in a material amount for prohibited transactions imposed by ERISA or Section 4975 of the Code. (d) To the best knowledge of the Company, no fiduciary (as defined in Section 3(21) of ERISA) with respect to any Plan has breached any of the material responsibilities or obligations imposed upon fiduciaries under Title I of ERISA. Each Plan is and has been operated in compliance in all material respects with its terms and all applicable reporting, disclosure and other requirements of ERISA and the Code as they relate to such Plan, including where applicable, the group health plan continuation coverage requirements set forth in Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code, and by its terms can be terminated at any time. (e) As of the date hereof, the Company and each of its subsidiaries shall have made all required contributions under each Plan for all applicable periods or adequate accruals therefor will have been provided for by the Company or such subsidiary. (f) Except as set forth in any of the SEC Filings, no Person will be entitled to any severance benefits under the terms of any Plan solely by reason of the transactions contemplated by this Agreement or the Stockholders Agreement. Except as otherwise disclosed in any of the SEC Filings, there are no actions, claims, suits or arbitrations pending or, to the best knowledge of the Company, threatened with respect to any Plan, which actions, claims, suits or arbitrations has or could reasonably be expected to have, alone, or in the aggregate, a Material Adverse Effect. (g) Neither the Company nor any of its subsidiaries has incurred any outstanding liability in any material amount to the Pension Benefit Guaranty Corporation. Each Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code (and the exempt trust thereunder), has been determined by the Internal Revenue Service to satisfy the qualification requirements of Sections 401(a) and 501(a) of the Code and every Plan (and related trust) which is intended to comply with the terms and requirements of applicable statutes does so comply in all material respects. (h) Neither the Company nor any of its subsidiaries, other than Softworks, Inc., has adopted, during the last six (6) years, any Plan or any employee benefit plan subject to Title IV of ERISA, giving rise to any liabilities to which the Company or any of its subsidiaries is now or may hereafter be subject, which liabilities have, or could reasonably be expected to have, a Material Adverse Effect. (i) The consummation of the transactions contemplated by this Agreement will not result in an increase in the amount of compensation or benefits or accelerate the vesting or timing of payment of any benefits or compensation payable in respect of any employee.

ERISA and Employee Benefit Plans. (a) Except as disclosed in any of the SEC Filings, neither of the Company nor any of its subsidiaries maintains, sponsors, is required to make contributions to or otherwise has any liability, direct, indirect, contingent or otherwise, with respect to any pension, profit sharing, thrift or other retirement plan, employee stock ownership plan, deferred compensation, stock 18 ownership, stock purchase, performance share, bonus or other incentive plan, severance plan, health or group insurance plan, welfare plan, or other similar plan, agreement, policy, arrangement or understanding, whether written or oral, whether or not such plan is intended to be qualified under Section 401(a) of the Code, including any employee benefit plan within the meaning of Section 3(3) of ERISA, which plan covers any employee or former employee of the Company or any of its subsidiaries (collectively, the "Plans"). (b) The Company has delivered to the Purchaser, or the same are available as exhibits to or are disclosed into reports, registration statements, proxy statements or other filings made by the Company with the Commission, true, correct and complete copies of each of the following: (i) any employment agreements and any procedure and policy manuals relating to the employment of employees of the Company and each of its subsidiaries and the use of temporary employees and independent contractors by the Company and each of its subsidiaries; (ii) each Plan and all related trust agreements, insurance and other material contracts, and summary plan descriptions and summaries of material modifications relating to each Plan and any related material communications distributed to participants under the Plans; and (iii) the latest reports which have been filed (or are in fully completed form for filing) with the Internal Revenue Service and the Department of Labor with respect to each Plan. (c) With respect to each Plan, to the best knowledge of the Company, no party in interest or disqualified person (as defined in Section 3(14) of ERISA and Section 4975 of the Code, respectively) has at any time engaged in a transaction which could subject the Company or any of its subsidiaries to a Tax in a material amount for prohibited transactions imposed by ERISA or Section 4975 of the Code. (d) To the best knowledge of the Company, no fiduciary (as defined in Section 3(21) of ERISA) with respect to any Plan has breached any of the material responsibilities or obligations imposed upon fiduciaries under Title I of ERISA. Each Plan is and has been operated in compliance in all material respects with its terms and all applicable reporting, disclosure and other requirements of ERISA and the Code as they relate to such Plan, including where applicable, the group health plan continuation coverage requirements set forth in Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code, and by its terms can be terminated at any time. (e) As of the date hereof, the Company and each of its subsidiaries shall have made all required contributions under each Plan for all applicable periods or adequate accruals therefor will have been provided for by the Company or such subsidiary. (f) Except as set forth in any of the SEC Filings, no Person will be entitled to any severance benefits under the terms of any Plan solely by reason of the transactions contemplated by this Agreement or the Stockholders Agreement. Except as otherwise disclosed in any of the SEC Filings, there are no actions, claims, suits or arbitrations pending or, to the best knowledge of the Company, threatened with respect to any Plan, which actions, claims, suits or arbitrations has or could reasonably be expected to have, alone, or in the aggregate, a Material Adverse Effect. (g) Neither the Company nor any of its subsidiaries has incurred any outstanding liability in any material amount to the Pension Benefit Guaranty Corporation. Each Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code (and the exempt trust thereunder), has been determined by the Internal Revenue Service to satisfy the qualification requirements of Sections 401(a) and 501(a) of the Code and every Plan (and related trust) which is intended to comply with the terms and requirements of applicable statutes does so comply in all material respects. (h) Neither the Company nor any of its subsidiaries, other than Softworks, Inc., has adopted, during the last six (6) years, any Plan or any employee benefit plan subject to Title IV of ERISA, giving rise to any liabilities to which the Company or any of its subsidiaries is now or may hereafter be subject, which liabilities have, or could reasonably be expected to have, a Material Adverse Effect. (i) The consummation of the transactions contemplated by this Agreement and the Stockholders Agreement will not result in an increase in the amount of compensation or benefits or accelerate the vesting or timing of payment of any benefits or compensation payable in respect of any employee.