Common use of ERISA Compliance; Excess Parachute Payments Clause in Contracts

ERISA Compliance; Excess Parachute Payments. (a) Section 4.11(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each material Company Benefit Plan. For each material Company Benefit Plan, the Company has provided, or will provide as soon as practicable (and no later than thirty (30) days) after the date of this Agreement, to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and, as applicable (i) all trust agreements, insurance contracts or other funding arrangements and amendments thereto, (ii) the current prospectus or summary plan description and all summaries of material modifications, (iii) the most recently filed annual return/report (Form 5500) and accompanying schedules and attachments thereto, (iv) the most recently prepared actuarial report and financial statements and (v) if such plan is an International Plan, documents that are substantially comparable (taking into account differences in applicable Laws and practices) to the documents required to be provided in clauses (i) through (iv). (b) No material liability under Title IV of ERISA has been incurred by the Company or any of its ERISA Affiliates which has not been satisfied in full and no event has occurred and no condition exists that could reasonably be likely to result in the Company or any of its ERISA Affiliates incurring material liability under Title IV of ERISA. Except as set forth in Section 4.11(b) of the Company Disclosure Letter, neither the Company nor any of its ERISA Affiliates sponsors, maintains, administers or contributes to (or has any obligation to contribute to) any Company Benefit Plan that (i) is a defined benefit pension plan or is subject to Section 302 or Title IV of ERISA or Section 412 of the Code (each, a “Title IV Plan”) or (ii) is a multiemployer plan within the meaning of Section 3(37) of ERISA or a multiple employer welfare arrangement as defined in Section 3(40) or ERISA, except, in each case, as would not reasonably be expected to result in the Company or any of the Company Subsidiaries incurring any material liability under Title IV of ERISA. (c) No Title IV Plan or any trust established thereunder has incurred any “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each Title IV Plan ended prior to the Effective Time. No reportable event within the meaning of Section 4043(c) of ERISA for which the thirty (30) days’ notice requirement has not been waived has occurred. Neither the Company nor any of its ERISA Affiliates has, within the preceding six (6) years, withdrawn in a complete or partial withdrawal from any multiemployer plan (as defined in Section 3(37) of ERISA) or incurred any liability under Section 4204 of ERISA that has not been satisfied in full. (d) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and the plan as currently in effect has received a favorable determination letter or opinion to that effect from the Internal Revenue Service and the Company is not aware of any reason why any such determination letter should be revoked or not be reissued. The Company has made available to Parent copies of the most recent Internal Revenue Service determination letter or opinion with respect to each such Company Benefit Plan. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Benefit Plan has been maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Company Benefit Plan, (ii) there are no pending or, to the Knowledge of the Company, threatened Proceedings against any Company Benefit Plan, any fiduciary thereof, the Company or any Company Subsidiary, and (iii) all contributions required to be made by the Company or any of its ERISA Affiliates to any Company Benefit Plan have been made on or before their applicable due dates (and contributions for any period ending on or before the Closing Date that are not due, are properly accrued to the extent required to be accrued under applicable accounting principles). No events have occurred with respect to a Company Benefit Plan that could result in payment or assessment against the Company or any Company Subsidiary of any material excise taxes under ERISA or the Code. To the Knowledge of the Company, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, none of the Company, any of the Company Subsidiaries, any officer of the Company or of any Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Benefit Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or of any Company Subsidiary to any Tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to any material liability under Section 502(i) or 502(1) of ERISA. (e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, there is no current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or the Company Subsidiaries, except as required to avoid excise tax under Section 4980B of the Code. No condition exists that would prevent the Company or any of its ERISA Affiliates from amending or terminating any Company Benefit Plan providing health or medical benefits in respect of any current or former employees of the Company or the Company Subsidiaries other than limitations imposed under the terms of a collective bargaining agreement. (f) Except as otherwise contemplated under this Agreement, or as set forth in Section 4.11(f) of the Company Disclosure Letter, neither the execution nor delivery of this Agreement nor the consummation of the transactions contemplated hereby shall, whether alone or in combination with any other event (i) result in the accelerated vesting or payment of, or any increase in, or in the funding (through a grantor trust or otherwise) of, any compensation or benefits to any present or former employee, consultant or director of the Company or any of the Company Subsidiaries; (ii) result in the entitlement of any present or former employee, consultant or director of the Company or any of the Company Subsidiaries to severance or termination pay or benefits; (iii) limit or restrict the right of the Company to merge, amend or terminate any of the Company Benefit Plans; or (iv) result in any payment under any of the Company Benefit Plans or any other arrangement that would not be deductible under Section 280G of the Code. (g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, there is no agreement, plan, arrangement or other Contract covering any employee of the Company or any of the Company Subsidiaries that, considered individually or considered collectively with any other such agreements, plans, arrangements or other Contracts, will, or could reasonably be expected to, give rise directly or indirectly to the payment of any amount that would be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code. No director, officer, employee or independent contractor of the Company or any Company Subsidiary is entitled to receive or will receive any gross-up or additional payment by reason of the “additional tax” or “excise tax” required by Section 409A or 4999 of the Code being imposed on such Person. (h) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, each International Plan (i) has been maintained in compliance with its terms and applicable Laws, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles. From and after the Closing Date, Parent and its Affiliates will receive the full benefit of any funds, accruals and reserves under the International Plans. (i) The ESOP and the Trust Agreement between the Company and the trustee of the ESOP have been duly authorized and established by all necessary corporate action on the part of the Company. The shares of Company Common Stock held by the ESOP are owned of record and beneficially by the ESOP, free and clear of all encumbrances other than the pledge in favor of the Company in connection with ESOP Loans evidenced by the ESOP Loan Agreement by and between the Company and the ESOP trustee. There are no liabilities of the ESOP other than the ESOP Loans and the obligation to pay the benefits to the ESOP participants under the ESOP in the ordinary course of business. There is no proceeding pending before any Governmental Entity or, to the Knowledge of the Company, threatened against the ESOP, the ESOP trust or the ESOP trustee or any properties of the ESOP, that would be expected to materially interfere with the ability of the Company to consummate the transactions contemplated by this Agreement. There is no judgment, decree or order against the ESOP trustee, the ESOP trust or the ESOP or any properties of the ESOP, the ESOP trust or the ESOP trustee that could prevent, enjoin, alter or materially delay any of the transactions contemplated by this Agreement, or that would reasonably be expected to materially interfere with the ability of the Company to consummate the transactions contemplated by this Agreement.

ERISA Compliance; Excess Parachute Payments. (a) Section 4.11(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each material Company Benefit Plan. For each material Company Benefit Plan, the Company has provided, or will provide as soon as practicable (and no later than thirty (30) days) after the date of this Agreement, to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and, as applicable (i) all trust agreements, insurance contracts or other funding arrangements and amendments thereto, (ii) the current prospectus or summary plan description and all summaries of material modifications, (iii) the most recently filed annual return/report (Form 5500) and accompanying schedules and attachments thereto, (iv) the most recently prepared actuarial report and financial statements and (v) if such plan is an International Plan, documents that are substantially comparable (taking into account differences in applicable Laws and practices) to the documents required to be provided in clauses (i) through (iv). (b) No material liability under Title IV of ERISA has been incurred by the Company or any of its ERISA Affiliates which has not been satisfied in full and no event has occurred and no condition exists that could reasonably be likely to result in the Company or any of its ERISA Affiliates incurring material liability under Title IV of ERISA, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Except as set forth in Section 4.11(b) of the Company Disclosure Letter, neither the Company nor any of its ERISA Affiliates sponsors, maintains, administers or contributes to (or has any obligation to contribute to) any No Company Benefit Plan that (i) is a defined benefit pension plan or is subject to Section 302 or Title IV of ERISA or Section 412 of the Code (each, a “Title IV Plan”) or (ii) is a multiemployer plan within the meaning of Section 3(37) of ERISA or a multiple employer welfare arrangement as defined in Section 3(40) or ERISA. Except as, exceptindividually or in the aggregate, in each case, as has not had and would not reasonably be expected to result in have a Company Material Adverse Effect, the Company or does not have any of the Company Subsidiaries incurring ongoing liability with respect to any material liability under Title IV Plan, multiemployer plan within the meaning of Section 3(37) of ERISA or multiple employer welfare arrangement as defined in Section 3(40) of ERISA. (cb) No Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, no Title IV Plan or any trust established thereunder has incurred any “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each Title IV Plan ended prior to the Effective Time. No reportable event within the meaning of Section 4043(c) of ERISA for which the thirty (30) days’ notice requirement has not been waived has occurred. Neither the Company nor any of its ERISA Affiliates has, within the preceding six (6) years, withdrawn in a complete or partial withdrawal from any multiemployer plan (as defined in Section 3(37) of ERISA) or incurred any liability under Section 4204 of ERISA that has not been satisfied in full. (dc) Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and the plan as currently in effect has received a favorable determination letter or opinion with respect to the plan as currently in effect to the effect that effect it is qualified from the Internal Revenue Service and the Company is not aware of any reason why any such determination letter should be revoked or not be reissued. The With respect to each Company Benefit Plan, the Company has made available to Parent copies of (i) the most recent Internal Revenue Service determination letter or opinion with respect to opinion, (ii) each such Company Benefit Plantrust or other funding arrangement, (iii) each summary plan description and summary of material modifications and (iv) the most recently prepared actuarial reports and financial statements. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Benefit Plan has been maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Company Benefit Plan, (ii) there are no pending or, to the Knowledge of the Company, threatened Proceedings against any Company Benefit Plan, any fiduciary thereof, the Company or any Company Subsidiary, and (iii) all contributions required to be made by the Company or any of its ERISA Affiliates to any Company Benefit Plan have been made on or before their applicable due dates (and contributions for any period ending on or before the Closing Date that are not due, are properly accrued to the extent required to be accrued under applicable accounting principles)dates. No events have occurred with respect to a Company Benefit Plan that could result in payment or assessment against the Company or any Company Subsidiary of any material excise taxes under ERISA or the Code. To the Knowledge of the Company, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, none None of the Company, any of the Company Subsidiaries, any officer of the Company or of any Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Benefit Plans, or, to the Knowledge of the Company, any trusts created thereunder or any trustee or administrator thereof, has engaged in a “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or of any Company Subsidiary to any Tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to any material liability under Section 502(i) or 502(1) of ERISA. (e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, there is no current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or the Company Subsidiaries, except as required to avoid excise tax under Section 4980B of the Code. No condition exists that would prevent the Company or any of its ERISA Affiliates from amending or terminating any Company Benefit Plan providing health or medical benefits in respect of any current or former employees of the Company or the Company Subsidiaries other than limitations imposed under the terms of a collective bargaining agreement. (fd) Except as otherwise contemplated under this Agreement, or as set forth in Section 4.11(f) of the Company Disclosure Letter, neither the execution nor delivery of this Agreement nor the consummation of the transactions contemplated hereby shall, whether alone or in combination with any other event (i) result in the accelerated vesting or payment of, or any increase in, or in the funding (through a grantor trust or otherwise) of, any compensation or benefits to any present or former employee, consultant or director of the Company or any of the Company Subsidiaries; (ii) result in the entitlement of any present or former employee, consultant or director of the Company or any of the Company Subsidiaries to severance or termination pay or benefits; (iii) limit or restrict the right of the Company to merge, amend or terminate any of the Company Benefit Plans; or (iv) result in any payment under any of the Company Benefit Plans or any other arrangement that would not be deductible under Section 280G of the Code. (g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, there is no agreement, plan, arrangement or other Contract covering any employee of the Company or any of the Company Subsidiaries that, considered individually or considered collectively with any other such agreements, plans, arrangements or other Contracts, will, or could reasonably be expected to, give rise directly or indirectly to the payment of any amount that would be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code. No director, officer, employee or independent contractor of the Company or any Company Subsidiary is entitled to receive or will receive any gross-up or additional payment by reason of the “additional tax” or “excise tax” required by Section 409A or 4999 of the Code being imposed on such Person. (he) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, each International Plan neither the Company nor any Company Subsidiary has any express or implied commitment (i) to create, incur liability with respect to or cause to exist any other compensation, benefit, fringe benefit or other plan, program, arrangement or agreement or to enter into any contract or agreement to provide compensation or benefits to any individual, in each case other than required by the terms of the Company Benefit Plans as in effect as of the date hereof or (ii) to modify, change or terminate any Company Benefit Plan, other than a modification, change or termination required by applicable Law. (f) In addition to the foregoing, with respect to each Non-U.S. Company Benefit Plan: (i) all employer and employee contributions to each Non-U.S. Company Benefit Plan required by Law or by the terms of such Non-U.S. Company Benefit Plan or pursuant to any contractual obligation (including contributions to all mandatory provident fund schemes) have been made or, if applicable, accrued in accordance with generally accepted accounting practices in the applicable jurisdiction applied to such matter, except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect; and (ii) each Non-U.S. Company Benefit Plan required to be registered has been registered and has been maintained in compliance with its terms and applicable Laws, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance good standing with applicable accounting principles. From and after the Closing Dateregulatory authorities, Parent and its Affiliates will receive the full benefit of any fundsexcept as, accruals and reserves under the International Plans. (i) The ESOP and the Trust Agreement between the Company and the trustee of the ESOP have been duly authorized and established by all necessary corporate action on the part of the Company. The shares of Company Common Stock held by the ESOP are owned of record and beneficially by the ESOP, free and clear of all encumbrances other than the pledge in favor of the Company in connection with ESOP Loans evidenced by the ESOP Loan Agreement by and between the Company and the ESOP trustee. There are no liabilities of the ESOP other than the ESOP Loans and the obligation to pay the benefits to the ESOP participants under the ESOP individually or in the ordinary course of business. There is no proceeding pending before any Governmental Entity oraggregate, to the Knowledge of the Company, threatened against the ESOP, the ESOP trust or the ESOP trustee or any properties of the ESOP, that has not had and would be expected to materially interfere with the ability of the Company to consummate the transactions contemplated by this Agreement. There is no judgment, decree or order against the ESOP trustee, the ESOP trust or the ESOP or any properties of the ESOP, the ESOP trust or the ESOP trustee that could prevent, enjoin, alter or materially delay any of the transactions contemplated by this Agreement, or that would not reasonably be expected to materially interfere with the ability of the have a Company to consummate the transactions contemplated by this AgreementMaterial Adverse Effect.

ERISA Compliance; Excess Parachute Payments. (a) Section 4.11(a3.11(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each material Company Benefit Plan. For each material Company Benefit Plan, the Company has provided, or will provide as soon as practicable (and no later than thirty (30) days) after the date of this Agreement, to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and, as applicable (i) all trust agreements, insurance contracts or other funding arrangements and amendments thereto, (ii) the current prospectus or summary plan description and all summaries of material modifications, (iii) the most recently filed annual return/report (Form 5500) and accompanying schedules and attachments thereto, (iv) the most recently prepared actuarial report and financial statements and (v) if such plan is an International Plan, documents that are substantially comparable (taking into account differences in applicable Laws and practices) to the documents required to be provided in clauses (i) through (iv). (b) No material liability under Title IV of ERISA has been incurred by the Company or any of its ERISA Affiliates which has not been satisfied in full and no event has occurred and no condition exists that could reasonably be likely to result in the Company or any of its ERISA Affiliates incurring material liability under Title IV of ERISA, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Except as set forth in Section 4.11(b3.11(b) of the Company Disclosure Letter, neither the Company nor any of its ERISA Affiliates sponsors, maintains, administers or contributes to (or has any obligation to contribute to) any no Company Benefit Plan that (i) is a defined benefit pension plan or is subject to Section 302 or Title IV of ERISA or Section 412 of the Code (each, a “Title IV Plan”) or (ii) is a multiemployer plan within the meaning of Section 3(37) of ERISA or a multiple employer welfare arrangement as defined in Section 3(40) or ERISA. (c) Except as, exceptindividually or in the aggregate, in each case, as has not had and would not reasonably be expected to result in the have a Company or any of the Company Subsidiaries incurring any material liability under Title IV of ERISA. (c) No Material Adverse Effect, no Title IV Plan or any trust established thereunder has incurred any “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each Title IV Plan ended prior to the Effective Time. No reportable event within the meaning of Section 4043(c) of ERISA for which the thirty (30) days’ notice requirement has not been waived has occurred. Neither the Company nor any of its ERISA Affiliates has, within the preceding six (6) years, withdrawn in a complete or partial withdrawal from any multiemployer plan (as defined in Section 3(37) of ERISA) or incurred any liability under Section 4204 of ERISA that has not been satisfied in full. (d) Each Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and the plan as currently in effect has received a favorable determination letter or opinion to that effect from the Internal Revenue Service and the Company is not aware of any reason why any such determination letter should be revoked or not be reissued. The Company has made available to Parent copies of the most recent Internal Revenue Service determination letter or opinion with respect to each such Company Benefit Plan. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Benefit Plan has been maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Company Benefit Plan, (ii) there are no pending or, to the Knowledge of the Company, threatened Proceedings against any Company Benefit Plan, any fiduciary thereof, the Company or any Company Subsidiary, and (iii) all contributions required to be made by the Company or any of its ERISA Affiliates to any Company Benefit Plan have been made on or before their applicable due dates (and contributions for any period ending on or before the Closing Date that are not due, are properly accrued to the extent required to be accrued under applicable accounting principles). No events have occurred with respect to a Company Benefit Plan that could result in payment or assessment against the Company or any Company Subsidiary of any material excise taxes under ERISA or the Codedates. To the Knowledge of the Company, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, none of the Company, any of the Company Subsidiaries, any officer of the Company or of any Company Subsidiary or any of the Company Benefit Plans which are subject to ERISA, including the Company Benefit Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company, any Company Subsidiary or any officer of the Company or of any Company Subsidiary to any Tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to any material liability under Section 502(i) or 502(1) of ERISA. (e) Except as set forth in Section 4.11(e3.11(e) of the Company Disclosure Letter, there is no current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or the Company Subsidiaries, except as required to avoid excise tax under Section 4980B of the Code. No condition exists that would prevent the Company or any of its ERISA Affiliates from amending or terminating any Company Benefit Plan providing health or medical benefits in respect of any current or former employees of the Company or the Company Subsidiaries other than limitations imposed under the terms of a collective bargaining agreement. (f) Except as otherwise contemplated under this Agreement, or has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, or as set forth in Section 4.11(f3.11(f) of the Company Disclosure Letter, neither the execution nor delivery of this Agreement nor the consummation of the transactions contemplated hereby shall, whether alone or in combination with any other event (i) result in the accelerated vesting or payment of, or any increase in, or in the funding (through a grantor trust or otherwise) of, any compensation or benefits to any present or former employee, consultant or director of the Company or any of the Company Subsidiaries; (ii) result in the entitlement of any present or former employee, consultant or director of the Company or any of the Company Subsidiaries to severance or termination pay or benefits; or (iii) limit or restrict the right of the Company to merge, amend or terminate any of the Company Benefit Plans; or (iv) result in any payment under any of the Company Benefit Plans or any other arrangement that would not be deductible under Section 280G of the Code. (g) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect or as set forth in Section 4.11(g3.11(f) of the Company Disclosure Letter, there is no agreement, plan, arrangement or other Contract covering any employee of the Company or any of the Company Subsidiaries that, considered individually or considered collectively with any other such agreements, plans, arrangements or other Contracts, will, or could reasonably be expected to, give rise directly or indirectly to the payment of any amount that would be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code. No director, officer, employee or independent contractor of the Company or any Company Subsidiary is entitled to receive or will receive any gross-up or additional payment by reason of the “additional tax” or “excise tax” required by Section 409A or 4999 of the Code being imposed on such Person. (h) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, each International Plan (i) has been maintained in compliance with its terms and applicable Laws, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles. From and after the Closing Date, Parent and its Affiliates will receive the full benefit of any funds, accruals and reserves under the International Plans. (i) The ESOP and the Trust Agreement between the Company and the trustee of the ESOP have been duly authorized and established by all necessary corporate action on the part of the Company. The shares of Company Common Stock held by the ESOP are owned of record and beneficially by the ESOP, free and clear of all encumbrances other than the pledge in favor of the Company in connection with ESOP Loans evidenced by the ESOP Loan Agreement by and between the Company and the ESOP trustee. There are no liabilities of the ESOP other than the ESOP Loans and the obligation to pay the benefits to the ESOP participants under the ESOP in the ordinary course of business. There is no proceeding pending before any Governmental Entity or, to the Knowledge of the Company, threatened against the ESOP, the ESOP trust or the ESOP trustee or any properties of the ESOP, that would be expected to materially interfere with the ability of the Company to consummate the transactions contemplated by this Agreement. There is no judgment, decree or order against the ESOP trustee, the ESOP trust or the ESOP or any properties of the ESOP, the ESOP trust or the ESOP trustee that could prevent, enjoin, alter or materially delay any of the transactions contemplated by this Agreement, or that would reasonably be expected to materially interfere with the ability of the Company to consummate the transactions contemplated by this Agreement.

ERISA Compliance; Excess Parachute Payments. (a) Section 4.11(a4.12(a) of the Company Parent Disclosure Letter sets forth a true, correct and complete list of each material Company Parent Benefit Plan. For each material Company Benefit Plan, the Company has provided, or will provide as soon as practicable (and no later than thirty (30) days) after the date of this Agreement, to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and, as applicable (i) all trust agreements, insurance contracts or other funding arrangements and amendments thereto, (ii) the current prospectus or summary plan description and all summaries of material modifications, (iii) the most recently filed annual return/report (Form 5500) and accompanying schedules and attachments thereto, (iv) the most recently prepared actuarial report and financial statements and (v) if such plan is an International Plan, documents that are substantially comparable (taking into account differences in applicable Laws and practices) to the documents required to be provided in clauses (i) through (iv). (b) No material liability under Title IV of ERISA has been incurred by the Company Parent or any of its ERISA Affiliates which has not been satisfied in full and no event has occurred and no condition exists that could reasonably be likely to result in the Company Parent or any of its ERISA Affiliates incurring material liability under Title IV of ERISA, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. Except as set forth in Section 4.11(b4.12(b) of the Company Parent Disclosure Letter, neither the Company nor any of its ERISA Affiliates sponsors, maintains, administers or contributes to (or has any obligation to contribute to) any Company no Parent Benefit Plan that (i) is a defined benefit pension plan or is subject to Section 302 or Title IV of ERISA or Section 412 of the Code (each, a “Parent Title IV Plan”) or (ii) is a multiemployer plan within the meaning of Section 3(37) of ERISA or a multiple employer welfare arrangement as defined in Section 3(40) or ERISA. (c) Except as, exceptindividually or in the aggregate, in each case, as has not had and would not reasonably be expected to result in the Company or any of the Company Subsidiaries incurring any material liability under Title IV of ERISA. (c) No have a Parent Material Adverse Effect, no Parent Title IV Plan or any trust established thereunder has incurred any “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each Parent Title IV Plan ended prior to the Effective Time. No reportable event within the meaning of Section 4043(c) of ERISA for which the thirty (30) days’ notice requirement has not been waived has occurred. Neither the Company Parent nor any of its ERISA Affiliates has, within the preceding six (6) years, withdrawn in a complete or partial withdrawal from any multiemployer plan (as defined in Section 3(37) of ERISA) or incurred any liability under Section 4204 of ERISA that has not been satisfied in full. (d) Each Company Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect, each Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and the plan as currently in effect has received a favorable determination letter or opinion to that effect from the Internal Revenue Service and the Company Parent is not aware of any reason why any such determination letter should be revoked or not be reissued. The Company Parent has made available to Parent the Company copies of the most recent Internal Revenue Service determination letter or opinion with respect to each such Company Parent Benefit Plan. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Parent Material Adverse Effect, (i) each Company Parent Benefit Plan has been maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Company Parent Benefit Plan, (ii) there are no pending or, to the Knowledge of the CompanyParent, threatened Proceedings against any Company Parent Benefit Plan, any fiduciary thereof, the Company Parent or any Company SubsidiarySubsidiary of Parent, and (iii) all contributions required to be made by the Company Parent or any of its ERISA Affiliates to any Company Parent Benefit Plan have been made on or before their applicable due dates (and contributions for any period ending on or before the Closing Date that are not due, are properly accrued to the extent required to be accrued under applicable accounting principles). No events have occurred with respect to a Company Benefit Plan that could result in payment or assessment against the Company or any Company Subsidiary of any material excise taxes under ERISA or the Codedates. To the Knowledge of the Company, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse EffectParent, none of the CompanyParent, any of the Company Parent Subsidiaries, any officer of the Company Parent or of any Company Parent Subsidiary or any of the Company Parent Benefit Plans which are subject to ERISA, including the Company Parent Benefit Plans, any trusts created thereunder or any trustee or administrator thereof, has engaged in a “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the CompanyParent, any Company Subsidiary of Parent or any officer of the Company Parent or of any Company Subsidiary of Parent to any Tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to any material liability under Section 502(i) or 502(1) of ERISA. (e) Except as set forth in Section 4.11(e) of the Company Parent Disclosure Letter, there is no current or projected liability in respect of post-employment or post-retirement postretirement health or medical or life insurance benefits for retired, former or current employees of the Company Parent or the Company its Subsidiaries, except as required to avoid excise tax under Section 4980B of the Code. No condition exists that would prevent the Company Parent or any of its ERISA Affiliates from amending or terminating any Company Parent Benefit Plan providing health or medical benefits in respect of any current or former employees of the Company Parent or the Company its Subsidiaries other than limitations imposed under the terms of a collective bargaining agreement. (f) Except as otherwise contemplated under this Agreement, or as set forth has not had and would not reasonably be expected to have, individually or in Section 4.11(f) of the Company Disclosure Letteraggregate, a Parent Material Adverse Effect, neither the execution nor delivery of this Agreement nor the consummation of the transactions contemplated hereby shall, whether alone or in combination with any other event (i) result in the accelerated vesting or payment of, or any increase in, or in the funding (through a grantor trust or otherwise) of, any compensation or benefits to any present or former employee, consultant or director of the Company Parent or any of the Company its Subsidiaries; (ii) result in the entitlement of any present or former employee, consultant or director of the Company Parent or any of the Company its Subsidiaries to severance or termination pay or benefits; (iii) limit or restrict the right of the Company Parent to merge, amend or terminate any of the Company Parent Benefit Plans; or (iv) result in any payment under any of the Company Parent Benefit Plans or any other arrangement that would not be deductible under Section 280G of the Code. (g) Except as set forth as, individually or in Section 4.11(g) of the Company Disclosure Letteraggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect, there is no agreement, plan, arrangement or other Contract covering any employee of the Company Parent or any of the Company Parent Subsidiaries that, considered individually or considered collectively with any other such agreements, plans, arrangements or other Contractscontracts, will, or could reasonably be expected to, give rise directly or indirectly to the payment of any amount that would be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code. No director, officer, employee or independent contractor of the Company Parent or any Company Parent Subsidiary is entitled to receive or will receive any gross-up or additional payment by reason of the “additional tax” or “excise tax” required by Section 409A or 4999 of the Code being imposed on such Person. (h) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, each International Plan (i) has been maintained in compliance with its terms and applicable Laws, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance with applicable accounting principles. From and after the Closing Date, Parent and its Affiliates will receive the full benefit of any funds, accruals and reserves under the International Plans. (i) The ESOP and the Trust Agreement between the Company and the trustee of the ESOP have been duly authorized and established by all necessary corporate action on the part of the Company. The shares of Company Common Stock held by the ESOP are owned of record and beneficially by the ESOP, free and clear of all encumbrances other than the pledge in favor of the Company in connection with ESOP Loans evidenced by the ESOP Loan Agreement by and between the Company and the ESOP trustee. There are no liabilities of the ESOP other than the ESOP Loans and the obligation to pay the benefits to the ESOP participants under the ESOP in the ordinary course of business. There is no proceeding pending before any Governmental Entity or, to the Knowledge of the Company, threatened against the ESOP, the ESOP trust or the ESOP trustee or any properties of the ESOP, that would be expected to materially interfere with the ability of the Company to consummate the transactions contemplated by this Agreement. There is no judgment, decree or order against the ESOP trustee, the ESOP trust or the ESOP or any properties of the ESOP, the ESOP trust or the ESOP trustee that could prevent, enjoin, alter or materially delay any of the transactions contemplated by this Agreement, or that would reasonably be expected to materially interfere with the ability of the Company to consummate the transactions contemplated by this Agreement.

ERISA Compliance; Excess Parachute Payments. (a) Section 4.11(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each material Company Benefit Plan. For each material Company Benefit Plan, the Company has provided, or will provide as soon as practicable (and no later than thirty (30) days) after the date of this Agreement, to Parent a copy of such plan (or a description, if such plan is not written) and all amendments thereto and, as applicable (i) all trust agreements, insurance contracts or other funding arrangements and amendments thereto, (ii) the current prospectus or summary plan description and all summaries of material modifications, (iii) the most recently filed annual return/report (Form 5500) and accompanying schedules and attachments thereto, (iv) the most recently prepared actuarial report and financial statements and (v) if such plan is an International Plan, documents that are substantially comparable (taking into account differences in applicable Laws and practices) to the documents required to be provided in clauses (i) through (iv). (b) No material liability under Title IV of ERISA has been incurred by the Company Parent or any of its ERISA Affiliates which has not been satisfied in full and no event has occurred and no condition exists that could reasonably be likely to result in the Company Parent or any of its ERISA Affiliates incurring material liability under Title IV of ERISA, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. Except as set forth in Section 4.11(b) of the Company Disclosure Letter, neither the Company nor any of its ERISA Affiliates sponsors, maintains, administers or contributes to (or has any obligation to contribute to) any Company No Parent Benefit Plan that (i) is a defined benefit pension plan or is subject to Section 302 or Title IV of ERISA or Section 412 of the Code (each, a “Parent Title IV Plan”) or (ii) is a multiemployer plan within the meaning of Section 3(37) of ERISA or a multiple employer welfare arrangement as defined in Section 3(40) or ERISA. Except as, exceptindividually or in the aggregate, in each case, as has not had and would not reasonably be expected to result in the Company or have a Parent Material Adverse Effect, Parent does not have any of the Company Subsidiaries incurring ongoing liability with respect to any material liability under Title IV Plan, multiemployer plan within the meaning of Section 3(37) of ERISA or multiple employer welfare arrangement as defined in Section 3(40) of ERISA. (cb) No Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect, no Parent Title IV Plan or any trust established thereunder has incurred any “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of the last day of the most recent fiscal year of each Parent Title IV Plan ended prior to the Effective Time. No reportable event within the meaning of Section 4043(c) of ERISA for which the thirty (30) days’ notice requirement has not been waived has occurred. Neither the Company Parent nor any of its ERISA Affiliates has, within the preceding six (6) years, withdrawn in a complete or partial withdrawal from any multiemployer plan (as defined in Section 3(37) of ERISA) or incurred any liability under Section 4204 of ERISA that has not been satisfied in full. (dc) Each Company Parent Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and the plan as currently in effect has received a favorable determination letter or opinion with respect to the plan as currently in effect to the effect that effect it is qualified from the Internal Revenue Service and the Company Parent is not aware of any reason why any such determination letter should be revoked or not be reissued. The Company With respect to each Parent Benefit Plan, Parent has made available to Parent the Company copies of (i) the most recent Internal Revenue Service determination letter or opinion with respect to opinion, (ii) each such Company Benefit Plantrust or other funding arrangement, (iii) each summary plan description and summary of material modifications and (iv) the most recently prepared actuarial reports and financial statements. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Parent Material Adverse Effect, (i) each Company Parent Benefit Plan has been maintained in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Company Parent Benefit Plan, (ii) there are no pending or, to the Knowledge of the CompanyParent, threatened Proceedings against any Company Parent Benefit Plan, any fiduciary thereof, the Company Parent or any Company SubsidiarySubsidiary of Parent, and (iii) all contributions required to be made by the Company Parent or any of its ERISA Affiliates to any Company Parent Benefit Plan have been made on or before their applicable due dates (and contributions for any period ending on or before the Closing Date that are not due, are properly accrued to the extent required to be accrued under applicable accounting principles)dates. No events have occurred with respect to a Company Benefit Plan that could result in payment or assessment against the Company or any Company Subsidiary None of any material excise taxes under ERISA or the Code. To the Knowledge of the Company, except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, none of the CompanyParent, any of the Company Parent Subsidiaries, any officer of the Company Parent or of any Company Parent Subsidiary or any of the Company Parent Benefit Plans which are subject to ERISA, including the Company Parent Benefit Plans, or, to the Knowledge of Parent, any trusts created thereunder or any trustee or administrator thereof, has engaged in a “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) or any other breach of fiduciary responsibility that could subject the CompanyParent, any Company Subsidiary of Parent or any officer of the Company Parent or of any Company Subsidiary of Parent to any Tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to any material liability under Section 502(i) or 502(1) of ERISA. (e) Except as set forth in Section 4.11(e) of the Company Disclosure Letter, there is no current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits for retired, former or current employees of the Company or the Company Subsidiaries, except as required to avoid excise tax under Section 4980B of the Code. No condition exists that would prevent the Company or any of its ERISA Affiliates from amending or terminating any Company Benefit Plan providing health or medical benefits in respect of any current or former employees of the Company or the Company Subsidiaries other than limitations imposed under the terms of a collective bargaining agreement. (fd) Except as otherwise contemplated under this Agreement, or as set forth in Section 4.11(f) of the Company Disclosure Letter, neither the execution nor delivery of this Agreement nor the consummation of the transactions contemplated hereby shall, whether alone or in combination with any other event (i) result in the accelerated vesting or payment of, or any increase in, or in the funding (through a grantor trust or otherwise) of, any compensation or benefits to any present or former employee, consultant or director of the Company Parent or any of the Company its Subsidiaries; (ii) result in the entitlement of any present or former employee, consultant or director of the Company Parent or any of the Company its Subsidiaries to severance or termination pay or benefits; (iii) limit or restrict the right of the Company Parent to merge, amend or terminate any of the Company Parent Benefit Plans; or (iv) result in any payment under any of the Company Parent Benefit Plans or any other arrangement that would not be deductible under Section 280G of the Code. (g) Except as set forth in Section 4.11(g) of the Company Disclosure Letter, there is no agreement, plan, arrangement or other Contract covering any employee of the Company or any of the Company Subsidiaries that, considered individually or considered collectively with any other such agreements, plans, arrangements or other Contracts, will, or could reasonably be expected to, give rise directly or indirectly to the payment of any amount that would be characterized as a “parachute payment” within the meaning of Section 280G(b)(2) of the Code. No director, officer, employee or independent contractor of the Company or any Company Subsidiary is entitled to receive or will receive any gross-up or additional payment by reason of the “additional tax” or “excise tax” required by Section 409A or 4999 of the Code being imposed on such Person. (he) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Parent Material Adverse Effect, each International Plan neither Parent nor any Parent Subsidiary has any express or implied commitment (i) to create, incur liability with respect to or cause to exist any other compensation, benefit, fringe benefit or other plan, program, arrangement or agreement or to enter into any contract or agreement to provide compensation or benefits to any individual, in each case other than required by the terms of the Parent Benefit Plans as in effect as of the date hereof or (ii) to modify, change or terminate any Parent Benefit Plan, other than a modification, change or termination required by applicable Law. (f) In addition to the foregoing, with respect to each Non-U.S. Parent Benefit Plan: (i) all employer and employee contributions to each Non-U.S. Parent Benefit Plan required by Law or by the terms of such Non-U.S. Parent Benefit Plan or pursuant to any contractual obligation (including contributions to all mandatory provident fund schemes) have been made or, if applicable, accrued in accordance with generally accepted accounting practices in the applicable jurisdiction applied to such matter, except as, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect; and (ii) each Non U.S. Parent Benefit Plan required to be registered has been registered and has been maintained in compliance with its terms and applicable Laws, (ii) if intended to qualify for special tax treatment, meets all the requirements for such treatment, and (iii) if required, to any extent, to be funded, book-reserved or secured by an insurance policy, is fully funded, book-reserved or secured by an insurance policy, as applicable, based on reasonable actuarial assumptions in accordance good standing with applicable accounting principles. From and after the Closing Dateregulatory authorities, Parent and its Affiliates will receive the full benefit of any fundsexcept as, accruals and reserves under the International Plans. (i) The ESOP and the Trust Agreement between the Company and the trustee of the ESOP have been duly authorized and established by all necessary corporate action on the part of the Company. The shares of Company Common Stock held by the ESOP are owned of record and beneficially by the ESOP, free and clear of all encumbrances other than the pledge in favor of the Company in connection with ESOP Loans evidenced by the ESOP Loan Agreement by and between the Company and the ESOP trustee. There are no liabilities of the ESOP other than the ESOP Loans and the obligation to pay the benefits to the ESOP participants under the ESOP individually or in the ordinary course of business. There is no proceeding pending before any Governmental Entity oraggregate, to the Knowledge of the Company, threatened against the ESOP, the ESOP trust or the ESOP trustee or any properties of the ESOP, that has not had and would be expected to materially interfere with the ability of the Company to consummate the transactions contemplated by this Agreement. There is no judgment, decree or order against the ESOP trustee, the ESOP trust or the ESOP or any properties of the ESOP, the ESOP trust or the ESOP trustee that could prevent, enjoin, alter or materially delay any of the transactions contemplated by this Agreement, or that would not reasonably be expected to materially interfere with the ability of the Company to consummate the transactions contemplated by this Agreementhave a Parent Material Adverse Effect.