Common use of ERISA; Benefit Plans Clause in Contracts

ERISA; Benefit Plans. (a) Schedule 5.12(a) lists each employee benefit plan (as such term is defined in section 3(3) of ERISA) and each other plan, program, or arrangement providing benefits to employees that is maintained by, contributed to, or required to be contributed to by Seller (or any ERISA Affiliate of Seller) as of the date hereof on account of current or former Business Employees, including persons who have retired or may retire from the Business (each, a "Benefit Plan"). Copies of such plans and all amendments thereto, together with the most recent annual report and actuarial report with respect thereto, if any, have been made available to Buyer. (b) Each Benefit Plan that is intended to be qualified under section 401(a) of the Code is qualified in all material respects and has received a determination from the Internal Revenue Service that such Benefit Plan is so qualified, and each trust that is intended to be exempt under section 501(a) of the Code has received a determination letter that such trust is so exempt. Seller has furnished to Buyer true and complete copies of all such determination letters. Nothing has occurred since the date of such determination that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this Agreement have any such effect. <PAGE> (c) Each Benefit Plan has been maintained, funded, and administered in material compliance with its terms, the terms of any applicable Collective Bargaining Agreements, and all applicable Laws, including ERISA and the Code. There is no "accumulated funding deficiency" within the meaning of section 412 of the Code with respect to any Benefit Plan which is an "employee pension benefit plan" as defined in section 3(2) of ERISA. No reportable event (within the meaning of section 4043 of ERISA) has occurred or exists in connection with any Benefit Plan other than events which would not, individually or in the aggregate, have an adverse effect on the Purchased Assets or Business. No event or liability or lien on assets described in sections 4041, 4042, 4062, 4063, 4064, 4068, or 4069 of ERISA has occurred or exists in connection with any Benefit Plan. Seller has accounted for the Seller Pension Plan in accordance with GAAP, and the contributions to the Seller Pension Plan have been made in accordance with applicable Law. No proceeding has been initiated to terminate the Seller Pension Plan, nor, to Seller's Knowledge, has the Pension Benefit Guaranty Corporation threatened or otherwise expressed its intention to terminate the Seller Pension Plan. Neither Seller nor any ERISA Affiliate has any obligation to contribute to or any other liability under or with respect to any multiemployer plan (as such term is defined in section 3(37) of ERISA). No liability under Title IV or section 302 of ERISA has been incurred by Seller or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability, other than liability for premiums due to the Pension Benefit Guaranty Corporation. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results in an increase in current liability. (d) Except as set forth on Schedule 5.12(d), the administrator and the fiduciaries of each Benefit Plan have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of Title I, Subtitle B of ERISA. Except as set forth on Schedule 5.12(d), there have been no non-exempt "prohibited transactions" as described in section 4975 of the Code or Title I, Part 4 of ERISA involving any Benefit Plan, and to Seller's Knowledge there are no facts or circumstances which could give rise to any tax or penalty imposed by section 4975 of the Code or section 502 of ERISA with respect to any Benefit Plan. (e) All contributions (including all employer matching and other contributions and all employee salary reduction contributions) for all periods ending prior to the Effective Time (including periods from the first day of the current plan year to the Effective Time) have been paid to the Benefit Plans within the time required by Law or will be paid to the Benefit Plans prior to or as of the Closing, notwithstanding any provision of any Benefit Plan to the contrary. All returns, reports, and disclosure statements required to be made under ERISA and the Code with respect to the Benefit Plans have been timely filed or delivered. No amount of income or any assets of Seller's VEBAs is subject to tax as a result of the failure to satisfy the applicable requirements for exemption or as unrelated business taxable income. (f) Each Benefit Plan that is a group health plan (within the meaning of Code section 5000(b)(1)) in all material respects complies with and has been maintained and <PAGE> operated in material compliance with each of the health care continuation requirements of section 4980B of the Code and Part 6 of Title I, Subtitle B of ERISA (or the applicable requirements of state insurance continuation law) and the requirements of the Health Insurance Portability and Accountability Act of 1996. (g) Schedule 5.12(g) sets forth the medical and life insurance benefits currently provided by Seller to any currently retired or former employees of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, section 4980B of the Code, or similar provisions of state law. Except for (i) any obligation to provide medical and/or life insurance benefits under and for the duration of any applicable Collective Bargaining Agreement or any prior collective bargaining agreement to which Seller or any of Seller's predecessors was a party with respect to the Business, (ii) retiree group codes RAYBZC1, RAYBZC2, and RABABB, or (iii) any obligations under the Consolidated Omnibus Budget Reconciliation Act of 1985 or other applicable Law, Seller may amend, modify, or terminate post-retirement and post-employment medical and life benefits or coverage, or adjust retirement premiums or cost-sharing provisions, at any time without further liability. (h) Except as provided in Section 7.9, no provision of any Benefit Plan would require the payment by Buyer of any money or other property, or the provision by Buyer of any other rights or benefits, to any employee or former employee of Seller as a result of the transactions contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of section 280G of the Code.

ERISA; Benefit Plans. (a) Schedule 5.12(a3.16 (a) lists each contains a list of all "employee pension benefit plan plans" (as such term is defined in section 3(3Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA), bonus, stock option, stock purchase and deferred compensation plans or arrangements, and other employee fringe benefit plans (all the foregoing being herein referred to as "Benefit Plans") and each other plan, programmaintained, or arrangement providing benefits to employees that is maintained by, contributed to, or required to be contributed to by Seller (the Company, the Subsidiary or any ERISA Affiliate of Sellerentity that is treated as under common control with the Company or the Subsidiary under Section 414(b), (c), (m) as or (o) of the date hereof on account Internal Revenue Code of current 1986, as amended (the "Code"), for the benefit of, or relating to, any employees or former Business Employeesemployees of the Company or the Subsidiary. The Company has delivered to Buyer true, including persons who have retired or may retire complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plan, a description thereof), (ii) the most recent determination letter received from the Business Internal Revenue Service, (eachiii) the latest actuarial evaluations, a "Benefit Plan"). Copies of such plans and all amendments thereto, together with (iv) the most recent annual report and actuarial report on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), including Schedule A and Schedule B thereto, if any, have been made available (v) the most recent summary plan description for each Benefit Plan for which such a summary plan description is required and (vi) each trust agreement and group annuity contract relating to Buyerany Benefit Plan. (b) Each Benefit Plan that is intended to be qualified under section 401(a) of the Code is qualified has been administered in all material respects and has received a determination from the Internal Revenue Service that such Benefit Plan is so qualified, and each trust that is intended to be exempt under section 501(a) of the Code has received a determination letter that such trust is so exempt. Seller has furnished to Buyer true and complete copies of all such determination letters. Nothing has occurred since the date of such determination that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this Agreement have any such effect. <PAGE> (c) Each Benefit Plan has been maintained, funded, and administered in material compliance accordance with its terms, terms and the terms applicable provisions of any applicable Collective Bargaining Agreements, and all applicable Laws, including ERISA and the Code. There is no "accumulated funding deficiency" within the meaning of section 412 of the Code Except as disclosed in Schedule 3.16(b)(i), all material reports, returns and similar documents with respect to the Benefit Plans required to be filed with any governmental agency or distributed to any Benefit Plan which is an participant have been duly and timely filed or distributed. Except as disclosed in Schedule 3.16(b)(ii), there are no investigations by any governmental agency, termination proceedings or other claims (except for benefits payable in the normal operation of the Benefit Plans), suits or proceedings or against or involving any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan that could reasonably give rise to any material liability and, to the Company's and the Subsidiary's knowledge, there are no facts that could reasonably give rise to any material liability in the event of any such investigation, claim, suit or proceeding. (c) Except as disclosed in Schedule 3.16(c), all contributions to, and payments from, the Benefit Plans that may have been required to be made in accordance with the Benefit Plans have been timely made. (d) No "employee pension benefit planprohibited transaction" (as defined in section 3(2) Section 4975 of ERISA. No reportable event (within the meaning of section 4043 Code or Section 406 of ERISA) has occurred or exists in connection with that involves the assets of any Benefit Plan and that could subject the Company or the Subsidiary or any of their employees or, to the Company's and the Subsidiary's knowledge, a trustee, administrator or other than events which would not, individually or in the aggregate, have an adverse effect on the Purchased Assets or Business. No event or liability or lien on assets described in sections 4041, 4042, 4062, 4063, 4064, 4068, or 4069 fiduciary of ERISA has occurred or exists in connection with any trusts created under any Benefit Plan. Seller has accounted for the Seller Pension Plan in accordance with GAAP, and the contributions to the Seller Pension Plan have been made in accordance with applicable Law. No proceeding has been initiated to terminate the Seller Pension Plan, nor, to Seller's Knowledgeany material tax or penalty on prohibited transactions imposed by Section 4975 of ERISA or the sanctions imposed under Title I of ERISA. None of the Company, has the Pension Subsidiary or any trust- ee, administrator or other fiduciary of any Benefit Guaranty Corporation threatened or otherwise expressed its intention to terminate the Seller Pension Plan. Neither Seller Plan nor any agent of any of the foregoing has engaged in any transaction or acted or failed to act in a manner that could subject the Company or the Subsidiary to any material liability for breach of fiduciary duty under ERISA Affiliate has any obligation to contribute to or any other liability under or with respect to any multiemployer plan (as such term is defined in section 3(37) of ERISA)applicable law. No liability under Title IV or section 302 of ERISA has been incurred by Seller the Company, the Subsidiary or any ERISA Affiliate their affiliates within six years prior to the date hereof that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability. (e) Except as disclosed in Schedule 3.16(e), other than at no time within the five years preceding the Closing Date has either of the Subsidiary or the Company been required to contribute to any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA, which liability for premiums due has not been fully paid as of the date hereof, or announced an intention to withdraw, but not yet completed such withdrawal, from any multiemployer plan. (f) Neither the Company nor the Subsidiary contributes to a Pension Plan that is subject to Section 302 of ERISA or Section 412 of the Code. (g) With respect to any Benefit Plan that is an employee welfare benefit plan, except as disclosed in Schedule 3.16(g), (1) no such Benefit Plan is funded through a welfare benefits fund, as such term is defined in Section 419(e) of the Code, and (2) each such Benefit Plan that is a group health plan, as such term is defined in Section 5000(b)(1) of the Code, complies with the applicable requirements of Section 4980B(f) of the Code. (h) Neither the Company nor the Subsidiary has incurred any liability under Section 4062(b) of ERISA to the Pension Benefit Guaranty Corporation. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results Corporation in an increase in current liability. (d) Except as set forth on Schedule 5.12(d), the administrator and the fiduciaries of each connection with any Benefit Plan have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of which is subject to Title I, Subtitle B IV of ERISA. Except as set forth on in Schedule 5.12(d3.16(h), there have been no non-exempt "prohibited transactions" as described in section 4975 of the Code or Title I, Part 4 of ERISA involving any Benefit Plan, and to Seller's Knowledge there are no facts or circumstances which could give rise to any tax or penalty imposed by section 4975 of the Code or section 502 of ERISA with respect to any Benefit Plan. (e) All contributions (including all employer matching and other contributions and all employee salary reduction contributions) Internal Revenue Service has issued a letter for all periods ending prior to the Effective Time (including periods from the first day of the current plan year to the Effective Time) have been paid to the Benefit Plans within the time required by Law or will be paid to the Benefit Plans prior to or as of the Closing, notwithstanding any provision of any each Benefit Plan to the contrary. All returns, reports, and disclosure statements required to be made determining that such plan is exempt from United States Federal Income Tax under ERISA and the Code with respect to the Benefit Plans have been timely filed or delivered. No amount of income or any assets of Seller's VEBAs is subject to tax as a result of the failure to satisfy the applicable requirements for exemption or as unrelated business taxable income. (f) Each Benefit Plan that is a group health plan (within the meaning of Code section 5000(b)(1)) in all material respects complies with and has been maintained and <PAGE> operated in material compliance with each of the health care continuation requirements of section 4980B of the Code and Part 6 of Title I, Subtitle B of ERISA (or the applicable requirements of state insurance continuation lawSections 401(a) and the requirements of the Health Insurance Portability and Accountability Act of 1996. (g501(a) Schedule 5.12(g) sets forth the medical and life insurance benefits currently provided by Seller to any currently retired or former employees of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, section 4980B of the Code, or similar provisions and there has been no occurrence since the date of state law. Except for any such determination letter which has adversely affected such qualification. (i) Except as set forth in Schedule 3.16(i), neither the Company, the Subsidiary nor any obligation to provide medical and/or of their affiliates maintains or contributes to, or has any liability (fixed, contingent or otherwise, under any current or former plan) for, medical, health or life insurance benefits under and for terminated employees of the duration Company or the Subsidiary or for present employees of the Company or the Subsidiary after termination of their employment (other than any applicable Collective Bargaining Agreement such welfare benefits provided pursuant to Code Section 4980B or any prior collective bargaining agreement to which Seller or any of Seller's predecessors was a party with respect to the Business, (ii) retiree group codes RAYBZC1, RAYBZC2, and RABABB, or (iii) any obligations under the Consolidated Omnibus Budget Reconciliation Act of 1985 or other applicable Law, Seller may amend, modify, or terminate postERISA Sections 601-retirement and post-employment medical and life benefits or coverage, or adjust retirement premiums or cost-sharing provisions, at any time without further liability608). (hj) Schedule 3.16(j) contains a true and complete list, as of the date of this Agreement, showing the names of all employees who during the last fiscal year received, or in the current fiscal year are expected to receive, compensation (including commissions and bonuses) in excess of $50,000. Except as provided in Section 7.9disclosed on Schedule 3.16(j), no provision neither the Company nor the Subsidiary has agreed to increase the salary payable to any employee listed on Schedule 3.16 by more than five percent. (k) The Company has made available to Buyer true and complete copies of any Benefit Plan would require the payment by Buyer of any money all contracts, agreements, plans or other property, or the provision by Buyer of any other rights or benefits, to arrangements covering any employee or former employee of Seller the Company or the Subsidiary with "change of control" or similar provisions or providing for "stay on" bonuses or severance payments (each, a "Change of Control Arrangement"). No Change of Control Arrangement 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. (l) Except as disclosed in Schedule 3.16(l) or as a result of the transactions contemplated hereby, there has been no amendment to or announcement by this Agreementthe Company, whether the Subsidiary or not any of their affiliates relating to a change in employee participation or coverage or benefits under any Benefit Plan that is reasonably expected to increase materially the expense of maintaining such payment would constitute a parachute payment within Benefit Plan above the meaning level of section 280G of expense incurred in respect thereof for the Codefiscal year ended June 29, 1997.

ERISA; Benefit Plans. (a) Schedule 5.12(a3.16(a) lists each contains a list of all "employee pension benefit plan plans" (as such term is defined in section 3(3Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) ), bonus, stock option, stock purchase and each other deferred compensation plans or arrangements, termination or severance pay plan, each employment termination or severance program, agreement or arrangement providing benefits arrangement, and other employee fringe benefit plans (all the foregoing being herein referred to employees that is maintained byas "Benefit Plans"), in each case, which has been established, maintained, or contributed to, or required to be contributed to to, by Seller (HFID for the benefit of, or relating to, any ERISA Affiliate of Seller) as of the date hereof on account of current employees or former Business Employeesemployees of HFID. HFID has delivered to REFAC true, including persons who have retired or may retire complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plan, a description thereof), (ii) the most recent determination letter received from the Business Internal Revenue Service, (eachiii) the latest actuarial evaluations, a "Benefit Plan"). Copies of such plans and all amendments thereto, together with (iv) the most recent annual report and actuarial report on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), including Schedule A and Schedule B thereto, if any(v) the most recent summary plan description for each Benefit Plan for which such a summary plan description is required and (vi) each trust agreement and group annuity contract relating to any Benefit Plan. HFID has no commitment, have been made available whether legally binding or otherwise, to Buyercreate any additional employee benefit plan or modify or change any existing Benefit Plan that would affect any employee or former employee of HFID. (b) Each Benefit Plan that is intended to be qualified under section 401(a) of the Code is qualified has been administered in all material respects in accordance with its terms and has received a determination from applicable law, including but not limited to ERISA and the Internal Revenue Service that such Benefit Plan is so qualifiedCode of 1986, and each trust that is intended to be exempt under section 501(a) as amended (the "Code"). Except as disclosed in Schedule 3.16(b), there are no pending or threatened investigations by any governmental agency, termination proceedings or other claims (except for benefits payable in the normal operation of the Code has received a determination letter that such trust is so exempt. Seller has furnished to Buyer true and complete copies of all such determination letters. Nothing has occurred since the date of such determination that would materially adversely affect the qualified Benefit Plans), suits or exempt status of such proceedings against or involving any Benefit Plan or trust, nor will asserting any rights or claims to benefits under any Benefit Plan that could reasonably give rise to any material liability and no facts exist that could reasonably be expected to give rise to any material liability in the consummation event of the transactions provided for by this Agreement have any such effect. <PAGE>investigation, claim, suit or proceeding. (c) Each Benefit Plan has been maintainedExcept as disclosed in Schedule 3.16(c), fundedall contributions to, and administered in material compliance with its termspayments from, the terms of any applicable Collective Bargaining AgreementsBenefit Plans that may have been required to be made in accordance with the Benefit Plans have been timely made. (d) HFID does not contribute to, and all applicable Lawshas never contributed to, including a Pension Plan that is or was subject to Section 302 of ERISA and the Code. There is no "accumulated funding deficiency" within the meaning of section or Section 412 of the Code with Code. (e) With respect to any Benefit Plan which that is an "employee pension welfare benefit plan" , except as defined disclosed in section 3(2Schedule 3.16(e), (i) of ERISA. No reportable event (within the meaning of section 4043 of ERISA) has occurred or exists in connection with any no such Benefit Plan other than events which would notis funded through a welfare benefits fund, individually or in the aggregate, have an adverse effect on the Purchased Assets or Business. No event or liability or lien on assets described in sections 4041, 4042, 4062, 4063, 4064, 4068, or 4069 of ERISA has occurred or exists in connection with any Benefit Plan. Seller has accounted for the Seller Pension Plan in accordance with GAAP, and the contributions to the Seller Pension Plan have been made in accordance with applicable Law. No proceeding has been initiated to terminate the Seller Pension Plan, nor, to Seller's Knowledge, has the Pension Benefit Guaranty Corporation threatened or otherwise expressed its intention to terminate the Seller Pension Plan. Neither Seller nor any ERISA Affiliate has any obligation to contribute to or any other liability under or with respect to any multiemployer plan (as such term is defined in section 3(37Section 419(e) of ERISA). No liability under Title IV or section 302 of ERISA has been incurred by Seller or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability, other than liability for premiums due to the Pension Benefit Guaranty Corporation. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results in an increase in current liability. (d) Except as set forth on Schedule 5.12(d), the administrator and the fiduciaries of each Benefit Plan have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of Title I, Subtitle B of ERISA. Except as set forth on Schedule 5.12(d), there have been no non-exempt "prohibited transactions" as described in section 4975 of the Code or Title I, Part 4 of ERISA involving any Benefit Plan, and to Seller's Knowledge there are no facts or circumstances which could give rise to any tax or penalty imposed by section 4975 of the Code or section 502 of ERISA with respect to any Benefit Plan. (eii) All contributions (including all employer matching and other contributions and all employee salary reduction contributions) for all periods ending prior to the Effective Time (including periods from the first day of the current plan year to the Effective Time) have been paid to the Benefit Plans within the time required by Law or will be paid to the Benefit Plans prior to or as of the Closing, notwithstanding any provision of any Benefit Plan to the contrary. All returns, reports, and disclosure statements required to be made under ERISA and the Code with respect to the Benefit Plans have been timely filed or delivered. No amount of income or any assets of Seller's VEBAs is subject to tax as a result of the failure to satisfy the applicable requirements for exemption or as unrelated business taxable income. (f) Each each such Benefit Plan that is a group health plan (within plan, as such term is defined in Section 5000(b)(1) of the meaning of Code section 5000(b)(1)) in all material respects Code, complies with and has been maintained and <PAGE> operated in material compliance with each of the health care continuation requirements of section 4980B of the Code and Part 6 of Title I, Subtitle B of ERISA (or the applicable requirements of state insurance continuation lawSection 4980B(f) and the requirements of the Health Insurance Portability and Accountability Act of 1996. Code. No Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (gwhether or not insured) Schedule 5.12(g) sets forth the medical and life insurance benefits currently provided by Seller to any currently retired for employees or former employees of the Business HFID for periods extending beyond their retirement or other termination of service, other than pursuant to Part 6 (x) coverage mandated by applicable law, (y) death benefits under any Pension Plan or (z) benefits the full cost of Subtitle B of Title I of ERISA, section 4980B of which is borne by the Code, current or former employee (or his or her beneficiary). (f) Schedule 3.16 (f) lists each Benefit Plan that contains "change in control" or similar provisions or that provides for "stay-on" bonuses or severance payments in connection with a "change in control" or similar situation (each, a "Change of state lawControl Arrangement"). Except for (i) any obligation No Change of Control Arrangement individually or collectively could give rise to provide medical and/or life insurance benefits under and for the duration payment of any applicable Collective Bargaining Agreement or any prior collective bargaining agreement to which Seller or any of Seller's predecessors was a party with respect amount that would not be deductible pursuant to the Business, (ii) retiree group codes RAYBZC1, RAYBZC2, and RABABB, or (iii) any obligations under the Consolidated Omnibus Budget Reconciliation Act terms of 1985 or other applicable Law, Seller may amend, modify, or terminate post-retirement and post-employment medical and life benefits or coverage, or adjust retirement premiums or cost-sharing provisions, at any time without further liability. (h) Except as provided in Section 7.9, no provision of any Benefit Plan would require the payment by Buyer of any money or other property, or the provision by Buyer of any other rights or benefits, to any employee or former employee of Seller as a result of the transactions contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of section 280G of the Code.

ERISA; Benefit Plans. (a) Schedule 5.12(aSection 6.08(a) of the Company Disclosure Letter lists each employee benefit plan (as such term is defined in section Section 3(3) of ERISA) and each other plan, program, arrangement, or arrangement legally binding agreement or commitment providing compensation (including bonus, deferred compensation or incentive compensation) or benefits to current or former employees or independent contractors that is maintained by, contributed to, or required to be contributed to by Seller the Company (or any ERISA Affiliate of Sellerthe Company) as or with respect to which the Company (or any ERISA Affiliate of the date hereof on account of current Company) has any actual or former Business Employees, including persons who have retired or may retire from the Business contingent liability (each, a "“Benefit Plan"”). Copies With respect to each Benefit Plan (where applicable): the Company has delivered or made available to Parent complete and accurate copies of such plans (i) all plan documents, trust agreements, summary plan descriptions, summaries of material modifications, any material written interpretations or descriptions given to plan participants or others, any other descriptive material delivered to plan participants, and all amendments theretoannuity contracts or other funding arrangements or instruments, together with (ii) complete written descriptions of any Benefit Plan that is not in writing, (iii) all determination letters received from the Internal Revenue Service, (iv) annual reports (Forms 5500), including all schedules and audited financial statements, for the most recent annual report and three plan years, (v) actuarial report with respect theretoreports, if any, have been made available for the most recent three plan years, (iv) all notices that were given by the Internal Revenue Service, the Pension Benefit Guaranty Corporation, or the Department of Labor with respect to Buyerany Benefit Plan within the last three years; and (vi) such other documents or information as Parent reasonably requests. (b) Each Benefit Plan that is intended to be qualified under section Section 401(a) of the Code is qualified in all material respects and has received a determination from the Internal Revenue Service that such Benefit Plan is so qualified, and each trust that is intended to be exempt under section Section 501(a) of the Code has received a determination letter that such trust is so exempt. Seller has furnished to Buyer true and complete copies of all such determination letters. Nothing has occurred since the date of such most recent determination letter that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this Agreement have any such effect. <PAGE> (c) Each Benefit Plan has been maintained, funded, administered and administered operated in all material compliance respects in accordance with its terms, terms and in compliance in all material respects with the terms applicable provisions of any applicable Collective Bargaining Agreements, ERISA and all other applicable Laws, including ERISA and laws. (c) No Benefit Plan utilizes a funding vehicle described in Section 501(c)(9) of the Code. There is no "accumulated funding deficiency" . (d) Neither the Company nor any ERISA Affiliate of the Company has contributed in the past five years to a “multiemployer plan” within the meaning of section 412 Section 3(37) of ERISA, and, to the Company’s Knowledge, there is no circumstance, event or condition which could cause the Company or the Parent to incur any liability in respect of any multiemployer plan. (e) Neither the Company nor any ERISA Affiliate of the Code Company has, or in the past six years has had, any obligation or liability with respect to any Benefit Plan which is an "employee pension defined benefit plan" as defined in section 3(2) plan subject to Title IV of ERISA. No reportable event All contributions, premium payments and other payments due from the Company to or under the Benefit Plans have been paid in a timely manner and all contributions have been and are deductible for income tax purposes, and no such contributions or deductions have been challenged or disallowed by any governmental entity or other tribunal. (f) Except as set forth in Section 6.08(f) of the Company Disclosure Schedule, the Company has not engaged in, and, to the Company’s Knowledge, no fiduciary of any Benefit Plan has engaged in, any transaction in violation of Section 406 of ERISA or any “prohibited transaction” (within the meaning of section 4043 of ERISA) has occurred or exists in connection with any Benefit Plan other than events which would not, individually or in the aggregate, have an adverse effect on the Purchased Assets or Business. No event or liability or lien on assets described in sections 4041, 4042, 4062, 4063, 4064, 4068, or 4069 of ERISA has occurred or exists in connection with any Benefit Plan. Seller has accounted for the Seller Pension Plan in accordance with GAAP, and the contributions to the Seller Pension Plan have been made in accordance with applicable Law. No proceeding has been initiated to terminate the Seller Pension Plan, nor, to Seller's Knowledge, has the Pension Benefit Guaranty Corporation threatened or otherwise expressed its intention to terminate the Seller Pension Plan. Neither Seller nor any ERISA Affiliate has any obligation to contribute to or any other liability under or with respect to any multiemployer plan (as such term is defined in section 3(37) of ERISA). No liability under Title IV or section 302 of ERISA has been incurred by Seller or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability, other than liability for premiums due to the Pension Benefit Guaranty Corporation. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results in an increase in current liability. (d) Except as set forth on Schedule 5.12(d), the administrator and the fiduciaries of each Benefit Plan have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of Title I, Subtitle B of ERISA. Except as set forth on Schedule 5.12(d), there have been no non-exempt "prohibited transactions" as described in section Section 4975 of the Code Code) for which no exemption exists under ERISA or Title Ithe Code. No liability, Part 4 of ERISA involving any Benefit Planclaim, and investigation, audit, action or litigation has been incurred, made, commenced or, to Seller's Knowledge there are no facts or circumstances which could give rise to any tax or penalty imposed by section 4975 of the Code or section 502 of ERISA Company’s Knowledge, threatened (other than routine claims for benefits) with respect to any Benefit Plan. (eg) All contributions The Company does not maintain or contribute to any employee benefit plan which provides, and has no liability or obligation to provide, life insurance, medical or other employee welfare benefits to any employee (including all employer matching and other contributions and all employee salary reduction contributionsor such employee’s beneficiary) for all periods ending prior to the Effective Time (including periods from the first day upon such employee’s retirement or termination of the current plan year to the Effective Time) have been paid to the Benefit Plans within the time employment, except as may be required by Law federal, state or will be paid to the Benefit Plans prior to local laws, rules or as of the Closing, notwithstanding any provision of any Benefit Plan to the contrary. All returns, reports, and disclosure statements required to be made under ERISA and the Code with respect to the Benefit Plans have been timely filed or delivered. No amount of income or any assets of Seller's VEBAs is subject to tax as a result of the failure to satisfy the applicable requirements for exemption or as unrelated business taxable incomeregulations. (fh) Each Benefit Plan that which is a “group health plan (within plan” as defined in Section 5000(b)(1) of the meaning of Code section 5000(b)(1)) in all material respects complies with and has been maintained and <PAGE> operated in material compliance with each of the health care continuation requirements of section Section 4980B of the Code and Part 6 of Title I, Subtitle B Sections 601 through 608 of ERISA (or COBRA), and each Benefit Plan, to the applicable requirements of state insurance continuation law) extent applicable, is in material compliance with the privacy, security and the requirements other provisions of the Health Insurance Portability and Accountability Act of 1996. (gi) Schedule 5.12(g) sets forth Each Benefit Plan which is a nonqualified deferred compensation plan, within the medical and life insurance benefits currently provided by Seller to any currently retired or former employees meaning of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, section 4980B Section 409A of the Code, maintained by the Company or any ERISA Affiliate on or after January 1, 2005, has been operated in good faith compliance with the requirements of Section 409A of the Code (or an available exemption therefrom). (j) The Transactions will not result in any increase in liability of Parent with respect to any Benefit Plan (including under any employment, retention, severance, change in control or similar provisions of state law. Except for agreement or plan). (ik) any obligation Prior to provide medical and/or life insurance benefits under and for the duration Closing Date, no Cap Rock Entity will terminate the employment of any officer employed by a Cap Rock Entity other than for cause or due to death, disability or failure to perform. (l) Section 6.08(l) of the Company Disclosure Letter sets forth a list by individual of any outstanding obligations of any Cap Rock Entity under any deferred compensation plans. (m) Neither the Company nor any ERISA Affiliate has announced any plan or legally binding commitment to create any additional Benefit Plans or to amend or modify any existing Benefit Plan except as otherwise required by law. (n) The Company has substantially performed all material obligations required to be performed by it under ERISA, the Code and any other applicable Collective Bargaining Agreement state, federal or any prior collective bargaining agreement to which Seller or any foreign law and under the terms of Seller's predecessors was a party each Benefit Plan. To the Company’s Knowledge there is no, and the Company has received no written notice with respect to the Businessexistence of any, material default or violation by any Party of any of such laws, terms, or requirements applicable to any of the Benefit Plans. In addition, to the Company’s Knowledge there is no, and the Company has received no written notice with respect to the existence of any, pending investigation or pending enforcement action by the Pension Benefit Guaranty Corporation, the Department of Labor, the IRS or any other governmental agency with respect to any of the Benefit Plans. The Company has delivered to Parent copies of all correspondence with the Internal Revenue Service, the Department of Labor, the Pension Benefit Guaranty Corporation, or any other federal or state government agency regarding any Benefit Plan. (i) Neither the Company nor any ERISA Affiliate has engaged in any transaction that may result in the imposition of any material excise tax under Sections 4971 through 4980E of the Code or (ii) retiree group codes RAYBZC1otherwise incurred any material liability for any excise tax, RAYBZC2, and RABABB, other than excise taxes that have been paid or (iii) any obligations under the Consolidated Omnibus Budget Reconciliation Act of 1985 or other applicable Law, Seller may amend, modify, or terminate post-retirement and post-employment medical and life benefits or coverage, or adjust retirement premiums or cost-sharing provisions, at any time without further liabilityhave otherwise been disclosed to Parent. (hp) Except as provided in Section 7.9Other than routine claims for benefits, no provision the Company has not received any written notice of any pending material claims or lawsuits which have been asserted or instituted against any of the Benefit Plans, the assets of the trust or funds under the Benefit Plans, the sponsor or administrator of any of the Benefit Plans, or against any fiduciary of any of the Benefit Plans with respect to the operation of such Plan. Company has delivered to Parent copies of all material correspondence regarding any pending or threatened material claim against any Benefit Plan would require the payment by Buyer of any money or other property, or the provision by Buyer of Company or any other rights or benefits, ERISA Affiliate regarding any material matter related to any employee or former employee of Seller as a result of the transactions contemplated by this AgreementBenefit Plan, whether or not such payment would constitute a parachute payment within the meaning of section 280G of the Codeother than routine claims for benefits.

ERISA; Benefit Plans. (a) Schedule 5.12(a3.16 (a) lists each contains a list of all "employee pension benefit plan plans" (as such term is defined in section 3(3Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA), bonus, stock option, stock purchase and deferred compensation plans or arrangements, and other employee fringe benefit plans (all the foregoing being herein referred to as "Benefit Plans") and each other plan, programmaintained, or arrangement providing benefits to employees that is maintained by, contributed to, or required to be contributed to by Seller (the Company, the Subsidiary or any ERISA Affiliate of Sellerentity that is treated as under common control with the Company or the Subsidiary under Section 414(b), (c), (m) as or (o) of the date hereof on account Internal Revenue Code of current 1986, as amended (the "Code"), for the benefit of, or relating to, any employees or former Business Employeesemployees of the Company or the Subsidiary. The Company has delivered to Buyer true, including persons who have retired or may retire complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plan, a description thereof), (ii) the most recent determination letter received from the Business Internal Revenue Service, (eachiii) the latest actuarial evaluations, a "Benefit Plan"). Copies of such plans and all amendments thereto, together with (iv) the most recent annual report and actuarial report on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), including Schedule A and Schedule B thereto, if any, have been made available (v) the most recent summary plan description for each Benefit Plan for which such a summary plan description is required and (vi) each trust agreement and group annuity contract relating to Buyerany Benefit Plan. (b) Each Benefit Plan that is intended to be qualified under section 401(a) of the Code is qualified has been administered in all material respects and has received a determination from the Internal Revenue Service that such Benefit Plan is so qualified, and each trust that is intended to be exempt under section 501(a) of the Code has received a determination letter that such trust is so exempt. Seller has furnished to Buyer true and complete copies of all such determination letters. Nothing has occurred since the date of such determination that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this Agreement have any such effect. <PAGE> (c) Each Benefit Plan has been maintained, funded, and administered in material compliance accordance with its terms, terms and the terms applicable provisions of any applicable Collective Bargaining Agreements, and all applicable Laws, including ERISA and the Code. There is no "accumulated funding deficiency" within the meaning of section 412 of the Code Except as disclosed in Schedule 3.16(b)(i), all material reports, returns and similar documents with respect to the Benefit Plans required to be filed with any govern- mental agency or distributed to any Benefit Plan which is an participant have been duly and timely filed or distributed. Except as disclosed in Schedule 3.16(b)(ii), there are no investigations by any governmental agency, termination proceedings or other claims (except for benefits payable in the normal operation of the Benefit Plans), suits or proceedings or against or involving any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan that could reasonably give rise to any material liability and, to the Company's and the Subsidiary's knowledge, there are no facts that could reasonably give rise to any material liability in the event of any such investigation, claim, suit or proceeding. (c) Except as disclosed in Schedule 3.16(c), all contributions to, and payments from, the Benefit Plans that may have been required to be made in accordance with the Benefit Plans have been timely made. (d) No "employee pension benefit planprohibited transaction" (as defined in section 3(2) Section 4975 of ERISA. No reportable event (within the meaning of section 4043 Code or Section 406 of ERISA) has occurred or exists in connection with that involves the assets of any Benefit Plan and that could subject the Company or the Subsidiary or any of their employees or, to the Company's and the Subsidiary's knowledge, a trustee, administrator or other than events which would not, individually or in the aggregate, have an adverse effect on the Purchased Assets or Business. No event or liability or lien on assets described in sections 4041, 4042, 4062, 4063, 4064, 4068, or 4069 fiduciary of ERISA has occurred or exists in connection with any trusts created under any Benefit Plan. Seller has accounted for the Seller Pension Plan in accordance with GAAP, and the contributions to the Seller Pension Plan have been made in accordance with applicable Law. No proceeding has been initiated to terminate the Seller Pension Plan, nor, to Seller's Knowledgeany material tax or penalty on prohibited transactions imposed by Section 4975 of ERISA or the sanctions imposed under Title I of ERISA. None of the Company, has the Pension Subsidiary or any trustee, administrator or other fiduciary of any Benefit Guaranty Corporation threatened or otherwise expressed its intention to terminate the Seller Pension Plan. Neither Seller Plan nor any agent of any of the foregoing has engaged in any transaction or acted or failed to act in a manner that could subject the Company or the Subsidiary to any material liability for breach of fiduciary duty under ERISA Affiliate has any obligation to contribute to or any other liability under or with respect to any multiemployer plan (as such term is defined in section 3(37) of ERISA)applicable law. No liability under Title IV or section 302 of ERISA has been incurred by Seller the Company, the Subsidiary or any ERISA Affiliate their affiliates within six years prior to the date hereof that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability. (e) Except as disclosed in Schedule 3.16(e), other than at no time within the five years preceding the Closing Date has either of the Subsidiary or the Company been required to contribute to any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA, which liability for premiums due has not been fully paid as of the date hereof, or announced an intention to withdraw, but not yet completed such withdrawal, from any multiemployer plan. (f) Neither the Company nor the Subsidiary contributes to a Pension Plan that is subject to Section 302 of ERISA or Section 412 of the Code. (g) With respect to any Benefit Plan that is an employee welfare benefit plan, except as disclosed in Schedule 3.16(g), (1) no such Benefit Plan is funded through a welfare benefits fund, as such term is defined in Section 419(e) of the Code, and (2) each such Benefit Plan that is a group health plan, as such term is defined in Section 5000(b)(1) of the Code, complies with the applicable requirements of Section 4980B(f) of the Code. (h) Neither the Company nor the Subsidiary has incurred any liability under Section 4062(b) of ERISA to the Pension Benefit Guaranty Corporation. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results Corporation in an increase in current liability. (d) Except as set forth on Schedule 5.12(d), the administrator and the fiduciaries of each connection with any Benefit Plan have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of which is subject to Title I, Subtitle B IV of ERISA. Except as set forth on in Schedule 5.12(d3.16(h), there have been no non-exempt "prohibited transactions" as described in section 4975 of the Code or Title I, Part 4 of ERISA involving any Benefit Plan, and to Seller's Knowledge there are no facts or circumstances which could give rise to any tax or penalty imposed by section 4975 of the Code or section 502 of ERISA with respect to any Benefit Plan. (e) All contributions (including all employer matching and other contributions and all employee salary reduction contributions) Internal Revenue Service has issued a letter for all periods ending prior to the Effective Time (including periods from the first day of the current plan year to the Effective Time) have been paid to the Benefit Plans within the time required by Law or will be paid to the Benefit Plans prior to or as of the Closing, notwithstanding any provision of any each Benefit Plan to the contrary. All returns, reports, and disclosure statements required to be made determining that such plan is exempt from United States Federal Income Tax under ERISA and the Code with respect to the Benefit Plans have been timely filed or delivered. No amount of income or any assets of Seller's VEBAs is subject to tax as a result of the failure to satisfy the applicable requirements for exemption or as unrelated business taxable income. (f) Each Benefit Plan that is a group health plan (within the meaning of Code section 5000(b)(1)) in all material respects complies with and has been maintained and <PAGE> operated in material compliance with each of the health care continuation requirements of section 4980B of the Code and Part 6 of Title I, Subtitle B of ERISA (or the applicable requirements of state insurance continuation lawSections 401(a) and the requirements of the Health Insurance Portability and Accountability Act of 1996. (g501(a) Schedule 5.12(g) sets forth the medical and life insurance benefits currently provided by Seller to any currently retired or former employees of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, section 4980B of the Code, or similar provisions and there has been no occurrence since the date of state law. Except for any such determination letter which has adversely affected such qualification. (i) Except as set forth in Schedule 3.16(i), neither the Company, the Subsidiary nor any obligation to provide medical and/or of their affiliates maintains or contributes to, or has any liability (fixed, contingent or otherwise, under any current or former plan) for, medical, health or life insurance benefits under and for terminated employees of the duration Company or the Subsidiary or for present employees of the Company or the Subsidiary after termination of their employment (other than any applicable Collective Bargaining Agreement such welfare benefits provided pursuant to Code Section 4980B or any prior collective bargaining agreement to which Seller or any of Seller's predecessors was a party with respect to the Business, (ii) retiree group codes RAYBZC1, RAYBZC2, and RABABB, or (iii) any obligations under the Consolidated Omnibus Budget Reconciliation Act of 1985 or other applicable Law, Seller may amend, modify, or terminate postERISA Sections 601-retirement and post-employment medical and life benefits or coverage, or adjust retirement premiums or cost-sharing provisions, at any time without further liability608). (hj) Schedule 3.16(j) contains a true and complete list, as of the date of this Agreement, showing the names of all employees who during the last fiscal year received, or in the current fiscal year are expected to receive, compensation (including commissions and bonuses) in excess of $50,000. Except as provided in Section 7.9disclosed on Schedule 3.16(j), no provision neither the Company nor the Subsidiary has agreed to increase the salary payable to any employee listed on Schedule 3.16 by more than five percent. (k) The Company has made available to Buyer true and complete copies of any Benefit Plan would require the payment by Buyer of any money all contracts, agreements, plans or other property, or the provision by Buyer of any other rights or benefits, to arrangements covering any employee or former employee of Seller the Company or the Subsidiary with "change of control" or similar provisions or providing for "stay on" bonuses or severance payments (each, a "Change of Control Arrangement"). No Change of Control Arrangement 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. (l) Except as disclosed in Schedule 3.16(l) or as a result of the transactions contemplated hereby, there has been no amendment to or announcement by this Agreementthe Company, whether the Subsidiary or not any of their affiliates relating to a change in employee participation or coverage or benefits under any Benefit Plan that is reasonably expected to increase materially the expense of maintaining such payment would constitute a parachute payment within Benefit Plan above the meaning level of section 280G of expense incurred in respect thereof for the Codefiscal year ended June 29, 1997.

ERISA; Benefit Plans. (a) Schedule 5.12(a3.16(a) lists each contains a list of all "employee pension benefit plan plans" (as such term is defined in section 3(3Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to herein as "Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA), bonus, stock option, stock purchase and deferred compensation plans or arrangements, and other employee fringe benefit plans (all the foregoing being herein referred to as "Benefit Plans") and each other plan, programmaintained, or arrangement providing benefits to employees that is maintained by, contributed to, or required to be contributed to by Seller (the Company, the Subsidiary or any ERISA Affiliate of Sellerentity that is treated as under common control with the Company or the Subsidiary under Section 414(b), (c), (m) as or (o) of the date hereof on account Internal Revenue Code of current 1986, as amended (the "Code"), for the benefit of, or relating to, any employees or former Business Employeesemployees of the Company or the Subsidiary. The Company has delivered to Buyer true, including persons who have retired or may retire complete and correct copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plan, a description thereof), (ii) the most recent determination letter received from the Business Internal Revenue Service, (eachiii) the latest actuarial evaluations, a "Benefit Plan"). Copies of such plans and all amendments thereto, together with (iv) the most recent annual report and actuarial report on Form 5500 filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required), including Schedule A and Schedule B thereto, if any, have been made available (v) the most recent summary plan description for each Benefit Plan for which such a summary plan description is required and (vi) each trust agreement and group annuity contract relating to Buyerany Benefit Plan. (b) Each Benefit Plan that is intended to be qualified under section 401(a) of the Code is qualified has been administered in all material respects and has received a determination from the Internal Revenue Service that such Benefit Plan is so qualified, and each trust that is intended to be exempt under section 501(a) of the Code has received a determination letter that such trust is so exempt. Seller has furnished to Buyer true and complete copies of all such determination letters. Nothing has occurred since the date of such determination that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this Agreement have any such effect. <PAGE> (c) Each Benefit Plan has been maintained, funded, and administered in material compliance accordance with its terms, terms and the terms applicable provisions of any applicable Collective Bargaining Agreements, and all applicable Laws, including ERISA and the Code. There is no "accumulated funding deficiency" within the meaning of section 412 of the Code Except as disclosed in Schedule 3.16(b)(i), all material reports, returns and similar documents with respect to the Benefit Plans required to be filed with any governmental agency or distributed to any Benefit Plan which is an participant have been duly and timely filed or distributed. Except as disclosed in Schedule 3.16(b)(ii), there are no investigations by any governmental agency, termination proceedings or other claims (except for benefits payable in the normal operation of the Benefit Plans), suits or proceedings or against or involving any Benefit Plan or asserting any rights or claims to benefits under any Benefit Plan that could reasonably give rise to any material liability and, to the Company's and the Subsidiary's knowledge, there are no facts that could reasonably give rise to any material liability in the event of any such investigation, claim, suit or proceeding. (c) Except as disclosed in Schedule 3.16(c), all contributions to, and payments from, the Benefit Plans that may have been required to be made in accordance with the Benefit Plans have been timely made. (d) No "employee pension benefit planprohibited transaction" (as defined in section 3(2) Section 4975 of ERISA. No reportable event (within the meaning of section 4043 Code or Section 406 of ERISA) has occurred or exists in connection with that involves the assets of any Benefit Plan and that could subject the Company or the Subsidiary or any of their employees or, to the Company's and the Subsidiary's knowledge, a trustee, administrator or other than events which would not, individually or in the aggregate, have an adverse effect on the Purchased Assets or Business. No event or liability or lien on assets described in sections 4041, 4042, 4062, 4063, 4064, 4068, or 4069 fiduciary of ERISA has occurred or exists in connection with any trusts created under any Benefit Plan. Seller has accounted for the Seller Pension Plan in accordance with GAAP, and the contributions to the Seller Pension Plan have been made in accordance with applicable Law. No proceeding has been initiated to terminate the Seller Pension Plan, nor, to Seller's Knowledgeany material tax or penalty on prohibited transactions imposed by Section 4975 of ERISA or the sanctions imposed under Title I of ERISA. None of the Company, has the Pension Subsidiary or any trustee, administrator or other fiduciary of any Benefit Guaranty Corporation threatened or otherwise expressed its intention to terminate the Seller Pension Plan. Neither Seller Plan nor any agent of any of the foregoing has engaged in any transaction or acted or failed to act in a manner that could subject the Company or the Subsidiary to any material liability for breach of fiduciary duty under ERISA Affiliate has any obligation to contribute to or any other liability under or with respect to any multiemployer plan (as such term is defined in section 3(37) of ERISA)applicable law. No liability under Title IV or section 302 of ERISA has been incurred by Seller the Company, the Subsidiary or any ERISA Affiliate their affiliates within six years prior to the date hereof that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability. (e) Except as disclosed in Schedule 3.16(e), other than at no time within the five years preceding the Closing Date has either of the Subsidiary or the Company been required to contribute to any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA, which liability for premiums due has not been fully paid as of the date hereof, or announced an intention to withdraw, but not yet completed such withdrawal, from any multiemployer plan. (f) Neither the Company nor the Subsidiary contributes to a Pension Plan that is subject to Section 302 of ERISA or Section 412 of the Code. (g) With respect to any Benefit Plan that is an employee welfare benefit plan, except as disclosed in Schedule 3.16(g), (1) no such Benefit Plan is funded through a welfare benefits fund, as such term is defined in Section 419(e) of the Code, and (2) each such Benefit Plan that is a group health plan, as such term is defined in Section 5000(b)(1) of the Code, complies with the applicable requirements of Section 4980B(f) of the Code. (h) Neither the Company nor the Subsidiary has incurred any liability under Section 4062(b) of ERISA to the Pension Benefit Guaranty Corporation. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results Corporation in an increase in current liability. (d) Except as set forth on Schedule 5.12(d), the administrator and the fiduciaries of each connection with any Benefit Plan have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of which is subject to Title I, Subtitle B IV of ERISA. Except as set forth on in Schedule 5.12(d3.16(h), there have been no non-exempt "prohibited transactions" as described in section 4975 of the Code or Title I, Part 4 of ERISA involving any Benefit Plan, and to Seller's Knowledge there are no facts or circumstances which could give rise to any tax or penalty imposed by section 4975 of the Code or section 502 of ERISA with respect to any Benefit Plan. (e) All contributions (including all employer matching and other contributions and all employee salary reduction contributions) Internal Revenue Service has issued a letter for all periods ending prior to the Effective Time (including periods from the first day of the current plan year to the Effective Time) have been paid to the Benefit Plans within the time required by Law or will be paid to the Benefit Plans prior to or as of the Closing, notwithstanding any provision of any each Benefit Plan to the contrary. All returns, reports, and disclosure statements required to be made determining that such plan is exempt from United States Federal Income Tax under ERISA and the Code with respect to the Benefit Plans have been timely filed or delivered. No amount of income or any assets of Seller's VEBAs is subject to tax as a result of the failure to satisfy the applicable requirements for exemption or as unrelated business taxable income. (f) Each Benefit Plan that is a group health plan (within the meaning of Code section 5000(b)(1)) in all material respects complies with and has been maintained and <PAGE> operated in material compliance with each of the health care continuation requirements of section 4980B of the Code and Part 6 of Title I, Subtitle B of ERISA (or the applicable requirements of state insurance continuation lawSections 401(a) and the requirements of the Health Insurance Portability and Accountability Act of 1996. (g501(a) Schedule 5.12(g) sets forth the medical and life insurance benefits currently provided by Seller to any currently retired or former employees of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, section 4980B of the Code, or similar provisions and there has been no occurrence since the date of state law. Except for any such determination letter which has adversely affected such qualification. (i) Except as set forth in Schedule 3.16(i), neither the Company, the Subsidiary nor any obligation to provide medical and/or of their affiliates maintains or contributes to, or has any liability (fixed, contingent or otherwise, under any current or former plan) for, medical, health or life insurance benefits under and for terminated employees of the duration Company or the Subsidiary or for present employees of the Company or the Subsidiary after termination of their employment (other than any applicable Collective Bargaining Agreement such welfare benefits provided pursuant to Code Section 4980B or any prior collective bargaining agreement to which Seller or any of Seller's predecessors was a party with respect to the Business, (ii) retiree group codes RAYBZC1, RAYBZC2, and RABABB, or (iii) any obligations under the Consolidated Omnibus Budget Reconciliation Act of 1985 or other applicable Law, Seller may amend, modify, or terminate postERISA Sections 601-retirement and post-employment medical and life benefits or coverage, or adjust retirement premiums or cost-sharing provisions, at any time without further liability608). (hj) Schedule 3.16(j) contains a true and complete list, as of the date of this Agreement, showing the names of all employees who during the last fiscal year received, or in the current fiscal year are expected to receive, compensation (including commissions and bonuses) in excess of $50,000. Except as provided in Section 7.9disclosed on Schedule 3.16(j), no provision neither the Company nor the Subsidiary has agreed to increase the salary payable to any employee listed on Schedule 3.16 by more than five percent. (k) The Company has made available to Buyer true and complete copies of any Benefit Plan would require the payment by Buyer of any money all contracts, agreements, plans or other property, or the provision by Buyer of any other rights or benefits, to arrangements covering any employee or former employee of Seller the Company or the Subsidiary with "change of control" or similar provisions or providing for "stay on" bonuses or severance payments (each, a "Change of Control Arrangement"). No Change of Control Arrangement 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. (l) Except as disclosed in Schedule 3.16(l) or as a result of the transactions contemplated hereby, there has been no amendment to or announcement by this Agreementthe Company, whether the Subsidiary or not any of their affiliates relating to a change in employee participation or coverage or benefits under any Benefit Plan that is reasonably expected to increase materially the expense of maintaining such payment would constitute a parachute payment within Benefit Plan above the meaning level of section 280G of expense incurred in respect thereof for the Codefiscal year ended June 29, 1997.

ERISA; Benefit Plans. (a) Schedule 5.12(a4.9(a) lists each employee benefit plan, including each employee benefit plan (as such term is defined in section Section 3(3) of ERISA, each multiemployer plan as defined in Section 3(37) of ERISA, each multiple employer plan within the meaning of Code Section 413(c), each multiple employer welfare arrangement as defined in Section 3(40) of ERISA, and each other plan, programcontract, agreement, arrangement or policy, whether written or oral, qualified or non-qualified, providing for (i) compensation, severance benefits, bonuses, profit- sharing or other forms of incentive compensation; (ii) vacation, holiday, sickness or other time- off; (iii) health, medical, dental, disability, life, accidental death and dismemberment, employee assistance, educational assistance, relocation or fringe benefits or perquisites, including post- employment benefits; and (iv) deferred compensation, defined benefit or defined contribution, retirement or pension benefits, or arrangement providing benefits to employees equity grants that covers any Palisades Employee, or that is maintained bymaintained, contributed toadministered or with respect to which contributions are made by any of NMC, Seller or required to be contributed to by Seller ERISA Affiliates in respect of Palisades Employees or their beneficiaries (or any ERISA Affiliate “Benefit Plans”). True, correct, and complete copies of Seller(i) as of the date hereof on account of current or former Business Employeesall such Benefit Plans, including persons who all amendments thereto and other information regarding benefit changes that have retired or may retire been previously communicated, (ii) all related trust agreements, insurance contracts and funding arrangements that implement each such Benefit Plan, (iii) all related summary plan descriptions and summaries of material modifications of such Benefit Plans, (iv) all determination letters received from the Business (each, a "IRS pertaining to any such Benefit Plan"). Copies of such plans and , (v) all amendments thereto, together with annual reports (IRS Forms 5500) for the three (3) most recent annual report plan years for each such Benefit Plan, (vi) all compliance testing data and actuarial report results for the three (3) most recent plan years for each such Benefit Plan and (vii) all communications with any Governmental Authority with respect thereto, if any, to each Benefit Plan have been made available to Buyer. Except as set forth on Schedule 4.9(a), no such information with respect to the Big Rock ISFSI Employee(s) has been provided. (b) Each Benefit Plan that and related trust which is intended to be qualified under section within the meaning of Code Section 401(a) or tax-exempt under Code Section 501(c)(9) is so qualified or exempt from taxation and has received a favorable determination letter as to its qualification or tax-exempt status under all applicable Laws (or if no favorable determination letter has yet been issued, a request for such determination letter with respect to such Benefit Plan was timely submitted) and has never lost its qualified or tax-exempt status and, to Seller’s Knowledge, there are no facts or circumstances that would adversely affect IRS qualification or tax-exempt status. The most recent IRS determination letters and any outstanding request for a determination letter have been furnished by Seller to Buyer. (c) With respect to each Benefit Plan: (i) such Benefit Plan (and each related trust, insurance contract or fund) has been maintained, funded and administered in accordance with the terms of such Benefit Plan and the terms of the Code is qualified Collective Bargaining Agreement, if applicable, and complies in all material respects and has received a determination from the Internal Revenue Service that such Benefit Plan is so qualified, and each trust that is intended to be exempt under section 501(a) of the Code has received a determination letter that such trust is so exempt. Seller has furnished to Buyer true and complete copies of all such determination letters. Nothing has occurred since the date of such determination that would materially adversely affect the qualified or exempt status of such Benefit Plan or trust, nor will the consummation of the transactions provided for by this Agreement have any such effect. <PAGE> (c) Each Benefit Plan has been maintained, funded, and administered in material compliance with its terms, the terms of any applicable Collective Bargaining Agreements, and all applicable Laws, including ERISA, COBRA, HIPAA, USERRA and the Code, the Securities Act and the Exchange Act; (ii) all required reports and descriptions (including annual reports (IRS Form 5500), summary annual reports, summary plan descriptions and summaries of material modifications) have been filed on a timely basis and/or distributed in accordance with the applicable requirements of ERISA and the Code. There ; (iii) no such Benefit Plan that is an Employee Pension Benefit Plan has been completely or partially terminated, and no "accumulated funding deficiency" proceeding by the PBGC to terminate any such Employee Pension Benefit Plan has been instituted or to Seller’s Knowledge threatened; (iv) to Seller’s Knowledge no Fiduciary has incurred any Liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of such Benefit Plan, (v) subject to the Collective Bargaining Agreement, such Benefit Plan may be amended, terminated, or otherwise modified by the sponsoring employer (including elimination of future accruals under any such Benefit Plan), and no communication concerning such Benefit Plan or provision in any document governing such Benefit Plan (whether express or implied or written has failed to reserve effectively the right of the sponsoring employer (including, after any assumption of such Benefit Plan, Buyer) to terminate, or make any amendment or modification to such Benefit Plan in whole or in part; (vi) subject to the Collective Bargaining Agreement or as otherwise permitted by Section 6.1(a)(10), neither NMC nor Seller has made any commitment to establish any new Benefit Plan, to modify any Benefit Plan (except as required under applicable Laws), nor has any intention to do so been communicated in writing to any Palisades Employees or Big Rock ISFSI Employees; (vii) no actions, suits, proceedings, hearings, investigations or claims with respect to the administration or the investment of the assets of such Benefit Plan (other than routine claims for benefits in the ordinary course) are pending or threatened, and Seller has no Knowledge of any basis for any such action, suit, proceeding, hearing, investigation or claim; (viii) no administrative investigation, audit or other administrative proceeding by the Department of Labor, the PBGC, the IRS or other Governmental Authority is pending, in progress or threatened; and (ix) as of the date hereof, none of Seller, NMC or any ERISA Affiliate has an application pending to the IRS under the Employee Plans Compliance Resolution System or has had such an application pursuant to the Employee Plans Compliance Resolution System or its predecessor denied, and if NMC or Seller has previously made such application and a compliance statement has been issued, Seller, NMC or such ERISA Affiliate, as applicable, has signed such statement and made the applicable correction or will make the applicable correction within the meaning requisite time period. (d) All contributions, premiums or other payments (including all employer contributions and employee salary reduction and other contributions) that are due have been made within the time periods prescribed by ERISA, the Code or the applicable plan document to each Employee Pension Benefit Plan. All contributions for any period ending at or before the Closing which are not yet due have been made to each Employee Pension Benefit Plan or have been properly accrued in accordance with the past custom and practice of section 412 Seller. (e) Neither NMC, Seller nor any ERISA Affiliate has incurred any material Liability, nor, to Seller’s Knowledge, are there any facts or circumstances that, would reasonably be expected to subject Seller, NMC or any ERISA Affiliate to any Liability (i) to the PBGC in connection with any Benefit Plan or otherwise under Title IV of ERISA, (ii) under the Code with respect to any such Benefit Plan, or (iii) under COBRA, HIPAA, USERRA or the Code with respect to any such Benefit Plan. Except as set forth in Schedule 4.9(e), no Benefit Plan which is an "employee pension benefit plan" or has been the subject of a Reportable Event, and no non-exempt “prohibited transaction” (as defined described in section 3(2) Section 406 of ERISA. No reportable event (within ERISA and Section 4975 of the meaning of section 4043 of ERISACode) has occurred or exists in connection with any Benefit Plan other than events which would not, individually or in the aggregate, have an adverse effect on the Purchased Assets or Business. No event or liability or lien on assets described in sections 4041, 4042, 4062, 4063, 4064, 4068, or 4069 of ERISA has occurred or exists in connection with respect to any Benefit Plan. Seller has accounted for the Seller Pension Plan in accordance with GAAPNone of Seller, and the contributions to the Seller Pension Plan have been made in accordance with applicable Law. No proceeding has been initiated to terminate the Seller Pension PlanNMC or their ERISA Affiliates contributes to, nor, to Seller's Knowledge, has the Pension Benefit Guaranty Corporation threatened or otherwise expressed its intention to terminate the Seller Pension Plan. Neither Seller nor any ERISA Affiliate has any obligation to contribute to to, or has any other Liability (including any withdrawal liability under Section 4201 et. seq. of ERISA) under or with respect to any “multiemployer plan (as such term is defined in section plan” within the meaning of Section 3(37) of ERISA). No liability under Title IV ERISA or section 302 of ERISA has been incurred by Seller or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Seller or any ERISA Affiliate of incurring any such liability, other than liability for premiums due to the Pension Benefit Guaranty Corporation. No Person has provided or is required to provide security to the Seller Pension Plan under section 401(a)(29) of the Code due to a plan amendment that results in an increase in current liability. (d) Except as set forth on Schedule 5.12(d), the administrator and the fiduciaries of each Benefit Plan have in all material respects complied with the applicable requirements of ERISA, the Code, and any other requirements of applicable Laws, including the fiduciary responsibilities imposed by Part 4 of Title I, Subtitle B of ERISA. Except as set forth on Schedule 5.12(d), there have been no non-exempt "prohibited transactions" as described in section 4975 of the Code or Title I, Part 4 of ERISA involving any Benefit Plan, and to Seller's Knowledge there are no facts or circumstances which could give rise to any tax or penalty imposed by section 4975 of the Code or section 502 of ERISA with respect to any Benefit Plan. (e) All contributions (including all multiple employer matching and other contributions and all employee salary reduction contributions) for all periods ending prior to the Effective Time (including periods from the first day of the current plan year to the Effective Time) have been paid to the Benefit Plans welfare arrangement within the time required by Law or will be paid to the Benefit Plans prior to or as meaning of the Closing, notwithstanding any provision Section 3(40) of any Benefit Plan to the contrary. All returns, reports, and disclosure statements required to be made under ERISA and the Code with respect to the Benefit Plans have been timely filed or delivered. No amount of income or any assets of Seller's VEBAs is subject to tax as a result of the failure to satisfy the applicable requirements for exemption or as unrelated business taxable incomeERISA. (f) Each Benefit Plan that is a group health plan (To the Knowledge of Seller, neither NMC nor Seller nor any ERISA Affiliate or successor corporation, within the meaning of Code section 5000(b)(1)Section 4069(b) in all material respects complies with and has been maintained and <PAGE> operated in material compliance with each of the health care continuation requirements of section 4980B of the Code and Part 6 of Title I, Subtitle B of ERISA (or the applicable requirements of state insurance continuation law) and the requirements of the Health Insurance Portability and Accountability Act of 1996. (g) Schedule 5.12(g) sets forth the medical and life insurance benefits currently provided by Seller to any currently retired or former employees of the Business other than pursuant to Part 6 of Subtitle B of Title I of ERISA, section 4980B has engaged in any transaction that may be disregarded under Section 4069 or Section 4212(c) of the Code, or similar provisions of state law. Except for (i) any obligation to provide medical and/or life insurance benefits under and for the duration of any applicable Collective Bargaining Agreement or any prior collective bargaining agreement to which Seller or any of Seller's predecessors was a party with respect to the Business, (ii) retiree group codes RAYBZC1, RAYBZC2, and RABABB, or (iii) any obligations under the Consolidated Omnibus Budget Reconciliation Act of 1985 or other applicable Law, Seller may amend, modify, or terminate post-retirement and post-employment medical and life benefits or coverage, or adjust retirement premiums or cost-sharing provisions, at any time without further liabilityERISA. (h) Except as provided in Section 7.9, no provision of any Benefit Plan would require the payment by Buyer of any money or other property, or the provision by Buyer of any other rights or benefits, to any employee or former employee of Seller as a result of the transactions contemplated by this Agreement, whether or not such payment would constitute a parachute payment within the meaning of section 280G of the Code.