Common use of ERISA; Employee Benefit Plans Clause in Contracts

ERISA; Employee Benefit Plans. (a) Schedule 4.12 and the Company Reports contain a true and complete list of each material “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and each other material employment, stock option, stock purchase, restricted stock or other equity-based, incentive, severance, termination, retention, change of control or other material benefit plans, programs, agreements, contracts, policies or arrangements contributed to, sponsored or maintained by the Company or any of its Subsidiaries (or which the Company or any of its Subsidiaries is obligated to contribute to, sponsor or maintain) as of the date hereof for the benefit of any future, current, former or retired employee, officer, consultant, independent contractor or director of the Company or any of its Subsidiaries (collectively, the “Company Employees”) or to which the Company or any of its Subsidiaries is a party or with respect to which the Company or any of its Subsidiaries has or would reasonably be expected to have any liability (such plans, programs, policies, agreements and arrangements, including the Company Stock Plans, and including material bonus, vacation, deferred compensation, profit sharing, savings, retirement, retiree medical or life insurance, supplemental retirement, severance and fringe benefit plans contributed to, sponsored or maintained by the Company or any of its Subsidiaries (or which the Company or any of its Subsidiaries is obligated to contribute to, sponsor or maintain) as of the date hereof for the benefit of any Company Employee, collectively, “Company Plans”). (b) With respect to each Company Plan, the Company has made available to Investor a current, accurate and complete copy, including any amendments, of (i) each such Company Plan (or, if a plan is not written, a written description thereof) and, to the extent applicable, (ii) any related trust agreement or other funding instrument, (iii) the most recent determination letter received from the Internal Revenue Service (the “IRS”) for each Company Plan that is intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended and including any applicable guidance issued or regulations promulgated thereunder (the “Code”), (iv) the most recent summary plan description and any summaries of any material modification of such Company Plan, (v) all prospectuses prepared in connection with any such Company Plan, (vi) any material communications to or from any governmental agency with respect to any ongoing or pending claim or audit or any claim or audit concluded on or after January 1, 2006, and (vii) for the most recent two years (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports, if any. (c) Each Company Plan has been established and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of applicable laws, rules and regulations, including ERISA and the Code. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, and no breach of fiduciary responsibility, has occurred with respect to any Company Plan, and no event, transaction, fact or condition exists that, to the knowledge of the Company, presents a risk to the Company or any of its Subsidiaries, or after the Closing Date, to the Investor, or any of their respective Affiliates (as such term is defined in the Investor Rights Agreement), of incurring any such liability. All contributions, premiums and other payments required to be made with respect to each Company Plan have been made on or before their due dates under applicable law and the terms of such Company Plan and all amounts properly accrued to date or as of the Effective Time as liabilities of the Company or any of its Subsidiaries which are not yet due have been properly recorded on the books of the Company and, to the extent required by Generally Accepted Accounting Principles (“GAAP”), adequate reserves are reflected on the Financial Statements of the Company or liability thereof was incurred in the ordinary course of business consistent with past practice since December 31, 2007. No Company Plan has an “accumulated funding deficiency” (whether or not waived) within the meaning of Section 412 of the Code or Section 302 of ERISA. (d) Neither the Company nor any of its Subsidiaries is now contributing to or has, since January 1, 2003, contributed to or had, any liability, contingent or otherwise, with respect to (i) a pension plan (within the meaning of Section 3(2) of ERISA) subject to Section 412 of the Code or Title IV of ERISA; (ii) a multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA); or (iii) a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which any other person that, together with the Company or any of its Subsidiaries, is or was treated as a single employer under Section 414 of the Code would reasonably be expected to incur liability under Section 4063 or 4064 of ERISA. (e) No proceedings (other than routine claims for benefits in the ordinary course) are pending or, to the knowledge of the Company, threatened with respect to any Company Plan or against the assets of such Company Plan. (f) No Company Plan provides post-termination welfare benefits, and neither the Company nor any of its Subsidiaries has any obligation to provide any post-termination welfare benefits, in each case other than health care continuation as required by Section 4980B of the Code. (g) Each Company Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS covering all tax law changes prior to the Economic Growth and Tax Relief Reconciliation Act of 2001 or is a prototype plan subject to a favorable opinion letter that may be relied on, and, to the knowledge of the Company, no circumstances exist or existed that has or is likely to affect such favorable determination or result in the loss of qualification of such Company Plan under Section 401(a) of the Code. Each outstanding option is a stock right that is exempt from the provisions of section 409A of the Code. Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and applicable guidance issued thereunder (a “Nonqualified Deferred Compensation Plan”) that is subject to Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code since January 1, 2005. No Nonqualified Deferred Compensation Plan that is intended to be exempt from Section 409A of the Code due to the effective date provisions that are applicable to Section 409A of the Code, as set forth in Section 885(d) of the American Jobs Creation Act of 2004, as amended (the “AJCA”), has been “materially modified” within the meaning of Section 885(d)(2)(B) of the AJCA after October 3, 2004, based upon a good faith reasonable interpretation of the AJCA. (h) Neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events) (i) constitute an event under any Company Plan or any trust or loan related to any of those plans or agreements that will or may result in any payment, acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employee, (ii) result in the triggering or imposition of any restrictions or limitations on the right of the Company to amend or terminate any Company Plan or (iii) result in the failure of any amount to be deductible by reason of Section 280G of the Code. (i) No Company Plan is under audit or is the subject of an investigation by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other governmental agency, nor, to the knowledge of the Company, is any such audit or investigation pending or threatened. (j) All options, equity and equity-based awards under Company Plans have been granted in compliance with the terms of the applicable Company Plans, with applicable laws, and with the applicable provisions of the Articles of Incorporation and Bylaws as in effect at the time of the applicable grant. (k) No deduction for federal income tax purposes has been or is expected by the Company to be disallowed for remuneration paid by the Company or any of its Subsidiaries by reason of Section 162(m) of the Code, including by reason of the transactions contemplated hereby.

ERISA; Employee Benefit Plans. (a) Schedule 4.12 5.17(a) lists each employment, bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, pension, or retirement plan, program, agreement or arrangement, and the Company Reports contain a true and complete list of each material “other employee benefit plan, program, agreement or arrangement currently maintained or contributed to or required to be contributed to by the Company or any trade or business, whether or not incorporated, that together with the Company would be deemed a “single employer” (within the meaning of Section 3(34001(b) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and each other material employment, stock option, stock purchase, restricted stock ERISA or other equity-based, incentive, severance, termination, retention, change of control or other material benefit plans, programs, agreements, contracts, policies or arrangements contributed to, sponsored or maintained by the Company or any of its Subsidiaries (or which the Company or any of its Subsidiaries is obligated to contribute to, sponsor or maintain) as Section 414 of the date hereof Code (an “ERISA Affiliate”) for the benefit of any future, current, employee or former or retired employee, officer, consultant, independent contractor or director employee of the Company or any of its Subsidiaries West Virginia Gas Distribution Business (collectively, the “Company Employees”) or to which the Company or any of its Subsidiaries is a party or with respect to which the Company or any of its Subsidiaries has or would reasonably be expected to have any liability (such plans, programs, policies, agreements and arrangements, including the Company Stock Plans, and including material bonus, vacation, deferred compensation, profit sharing, savings, retirement, retiree medical or life insurance, supplemental retirement, severance and fringe benefit plans contributed to, sponsored or maintained by the Company or any of its Subsidiaries (or which the Company or any of its Subsidiaries is obligated to contribute to, sponsor or maintain) as of the date hereof for the benefit of any Company Employee, collectively, “Company Benefit Plans”). (b) With respect to each Company Benefit Plan, the Company Seller has delivered or made available to Investor a current, accurate Buyer complete copies of each of the following documents: (1) the governing plan document and complete copy, including any amendments, of funding instrument established thereunder; (i2) each such Company Plan (orthe most recent annual report and actuarial report, if a plan is not writtenrequired under ERISA or the Code, a written description thereof) and, to if separate, the extent applicablemost recent financial statement; (3) the most recent Summary Plan Description, together with each Summary of Material Modifications, if required under ERISA; and (ii) any related trust agreement or other funding instrument, (iii4) the most recent determination letter received from the Internal Revenue Service (the “IRS”) for with respect to each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended and including any applicable guidance issued or regulations promulgated thereunder (the “Code”), (iv) the most recent summary plan description and any summaries of any material modification of such Company Plan, (v) all prospectuses prepared in connection with any such Company Plan, (vi) any material communications to or from any governmental agency with respect to any ongoing or pending claim or audit or any claim or audit concluded on or after January 1, 2006, and (vii) for the most recent two years (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports, if any. (c) Each Company Plan No liability under Title IV of ERISA has been established and administered incurred by the Company or any ERISA Affiliate that has not been satisfied in all material respects in accordance with its terms and in compliance with the applicable provisions of applicable lawsfull, rules and regulations, including ERISA and the Code. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, and no breach of fiduciary responsibility, has occurred with respect to any Company Plan, and no event, transaction, fact or condition exists thatand, to the knowledge of the CompanySeller, no condition exists that presents a material risk to the Company or any of its Subsidiaries, or after the Closing Date, to the Investor, or any of their respective Affiliates (as such term is defined in the Investor Rights Agreement), of incurring any such liability. All contributions, premiums and other payments required to be made with respect to each Company Plan have been made on or before their due dates under applicable law and the terms of such Company Plan and all amounts properly accrued to date or as of the Effective Time as liabilities Subsidiary of the Company or any of its Subsidiaries which are not yet due have been properly recorded on the books of the Company and, incurring a liability under such Title. No Benefit Plan subject to the extent required by Generally Accepted Accounting Principles (“GAAP”), adequate reserves are reflected on the Financial Statements of the Company or liability thereof was incurred in the ordinary course of business consistent with past practice since December 31, 2007. No Company Plan has an “accumulated minimum funding deficiency” (whether or not waived) within the meaning requirements of Section 412 of the Code or Section 302 of ERISAERISA or any trust established thereunder has incurred any “accumulated finding deficiency” (as defined in Section 302 of ERISA or Section 412 of the Code), whether or not waived, as of the last day of the most recently ended fiscal year of such Benefit Plan, and all contributions as of the date hereof and as of Closing required to be made with respect thereto (whether pursuant to the terms of such Benefit Plan or by Law) have been made. (d) Neither the Company nor any of its Subsidiaries No Benefit Plan is now contributing to or has, since January 1, 2003, contributed to or had, any liability, contingent or otherwise, with respect to (i) a pension plan (within the meaning of Section 3(2) of ERISA) subject to Section 412 of the Code or Title IV of ERISA; (ii) a multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA); or (iii) a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for which any other person that, together with and neither the Company nor any ERISA Affiliate has contributed to or been obligated to contribute to any of its Subsidiaries, such multiemployer plan during the preceding six years. No Benefit Plan is or was treated as a single employer under plan described in Section 414 of the Code would reasonably be expected to incur liability under Section 4063 or 4064 4063(a) of ERISA. (e) No proceedings (other than routine claims for benefits in the ordinary course) are pending or, to the knowledge of the Company, threatened with respect to any Company Each Benefit Plan or against the assets of such Company Plan. (f) No Company Plan provides post-termination welfare benefits, and neither the Company nor any of its Subsidiaries has any obligation to provide any post-termination welfare benefits, in each case other than health care continuation as required by Section 4980B of the Code. (g) Each Company Plan which is intended to be qualified under “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS covering all tax law changes prior Internal Revenue Service as to its qualification under said Section 401(a), as amended to date, excluding any statutory amendment that is not effective as of the Economic Growth date hereof and Tax Relief Reconciliation Act any statutory amendment for which the remedial amendment period under Section 401(b) of 2001 or is a prototype plan subject to a favorable opinion letter that may be relied on, the Code has not yet expired and, to the best knowledge of the Seller and the Company, no circumstances exist or existed event has occurred that has or is likely to affect such favorable determination or result in the loss of qualification disqualification of such Company Benefit Plan. (f) Each Benefit Plan under Section 401(a) of has been operated and administered in all material respects in accordance with its terms and applicable Laws, including without limitation ERISA and the Code. Each outstanding option is a stock right that is exempt from the provisions of section 409A of the Code. Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and applicable guidance issued thereunder (a “Nonqualified Deferred Compensation Plan”) that is subject to Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code since January 1, 2005. No Nonqualified Deferred Compensation Plan that is intended to be exempt from Section 409A of the Code due to the effective date provisions that are applicable to Section 409A of the Code, Except as set forth in Section 885(d) on Schedule 5.17(f), there are no pending or, to the best knowledge of the American Jobs Creation Act Seller or the Company, threatened claims by or on behalf of 2004, as amended (the “AJCA”), has been “materially modified” within the meaning of Section 885(d)(2)(B) any of the AJCA after October 3Benefit Plans, 2004, based upon a good faith reasonable interpretation by any employee or beneficiary covered under any such Plan or otherwise involving any such Plan (other than routine claims for benefits). (g) The consummation of the AJCAtransactions contemplated by this Agreement will not, whether alone or together with any other event, (i) entitle any current or former employee of the West Virginia Gas Distribution Business to severance pay, unemployment compensation or any other payment, or (ii) accelerate the time of payment or vesting, or increase the amount of compensation due any such person. (h) Neither the execution by the Company of this Agreement nor the consummation Except as set forth on Schedule 5.17(h), no Benefit Plan provides benefits, including without limitation death or medical benefits (whether or not insured), with respect to current or former employees of the transactions contemplated hereby will (either alone West Virginia Gas Distribution Business beyond their retirement or upon occurrence other termination of any additional or subsequent events) service, other than (i) constitute an event under any Company Plan or any trust or loan related to any of those plans or agreements that will or may result in any payment, acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employeecoverage mandated solely by applicable Law, (ii) result death benefits or retirement benefits under any “employee pension benefit plan,” as defined in the triggering or imposition Section 3(2) of any restrictions or limitations on the right of the Company to amend or terminate any Company Plan ERISA, or (iii) result in the failure of any amount to be deductible by reason of Section 280G of the Codedisability benefits. (i) No Company Plan is under audit or is the subject of an investigation by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other governmental agency, nor, to To the knowledge of the CompanySeller, is neither the Seller nor any other person or entity has engaged in a transaction with respect to any Benefit Plan that, assuming the taxable period of such audit transaction expired as of the date of this Agreement, could subject the Seller or investigation pending any other person or threatenedentity to a tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in respect of any Benefit Plan. (j) All options, equity and equity-based awards under Company Plans have been granted in compliance with the terms of the applicable Company Plans, with applicable laws, and with the applicable provisions of the Articles of Incorporation and Bylaws as in effect at the time of the applicable grant. (k) No deduction for federal income tax purposes There has been or is expected no amendment to, announcement by the Company to be disallowed for remuneration paid by the Company Seller or any of its Subsidiaries by reason of Section 162(m) subsidiaries relating to, or change in employee participation or coverage under, any Benefit Plan which would increase materially the aggregate benefits provided to West Virginia Gas Distribution Employees under such Plan above the level of the Code, including by reason of aggregate benefits provided thereunder for the transactions contemplated herebymost recent fiscal year.

ERISA; Employee Benefit Plans. (ai) Section 3.02(l)(i)(A) of the VeraSun Disclosure Schedule 4.12 sets forth a complete and the Company Reports contain a true and complete accurate list of each material “employee benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and each other material employment, stock option, stock purchase, restricted stock or other equity-based, incentive, severance, termination, retention, change of control or other material benefit plans, programs, agreements, contracts, policies or arrangements contributed to, sponsored or maintained by the Company or any of its Subsidiaries (or which the Company or any of its Subsidiaries is obligated to contribute to, sponsor or maintain) as of the date hereof for the benefit of any future, current, former or retired employee, officer, consultant, independent contractor or director of the Company or any of its Subsidiaries (collectively, the “Company Employees”) or to which the Company or any of its Subsidiaries is a party or with respect to which the Company or any of its Subsidiaries has or would reasonably be expected to have any liability (such plans, programs, policies, agreements and arrangements, including the Company Stock Plans, and including material bonus, vacation, deferred compensation, profit sharing, savings, retirement, retiree medical or life insurance, supplemental retirement, severance and fringe benefit plans contributed to, sponsored or maintained by the Company or any of its Subsidiaries (or which the Company or any of its Subsidiaries is obligated to contribute to, sponsor or maintain) as of the date hereof for the benefit of any Company Employee, collectively, “Company Plans”). (b) With respect to each Company Plan, the Company has made available to Investor a current, accurate and complete copy, including any amendments, of (i) each such Company Plan (or, if a plan is not written, a written description thereof) and, to the extent applicable, (ii) any related trust agreement or other funding instrument, (iii) the most recent determination letter received from the Internal Revenue Service (the “IRS”) for each Company Plan that is intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended and including any applicable guidance issued or regulations promulgated thereunder (the “Code”), (iv) the most recent summary plan description and any summaries of any material modification of such Company Plan, (v) all prospectuses prepared in connection with any such Company Plan, (vi) any material communications to or from any governmental agency with respect to any ongoing or pending claim or audit or any claim or audit concluded on or after January 1, 2006, and (vii) for the most recent two years (A) the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports, if any. (c) Each Company Plan has been established and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of applicable laws, rules and regulations, including ERISA and the Code. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, and no breach of fiduciary responsibility, has occurred with respect to any Company Plan, and no event, transaction, fact or condition exists that, to the knowledge of the Company, presents a risk to the Company or any of its Subsidiaries, or after the Closing Date, to the Investor, or any of their respective Affiliates (as such term is defined in the Investor Rights Agreement), of incurring any such liability. All contributions, premiums and other payments required to be made with respect to each Company Plan have been made on or before their due dates under applicable law and the terms of such Company Plan and all amounts properly accrued to date or as of the Effective Time as liabilities of the Company or any of its Subsidiaries which are not yet due have been properly recorded on the books of the Company and, to the extent required by Generally Accepted Accounting Principles (“GAAP”), adequate reserves are reflected on the Financial Statements of the Company or liability thereof was incurred in the ordinary course of business consistent with past practice since December 31, 2007. No Company Plan has an “accumulated funding deficiency” (whether or not waived) within the meaning of Section 412 of the Code or Section 302 of ERISA. (d) Neither the Company nor any of its Subsidiaries is now contributing to or has, since January 1, 2003, contributed to or had, any liability, contingent or otherwise, with respect to (i) a pension plan (within the meaning of as defined in Section 3(2) of ERISA) subject to Section 412 of the Code or Title IV of ERISA; post-retirement or employment health or medical plan, program, policy or arrangement, (ii) a multiemployer plan (within the meaning of Section 3(37) bonus, incentive or 4001(a)(3) of ERISA); deferred compensation or equity or equity-based compensation plan, program, policy or arrangement , (iii) a single employer pension plan severance, change in control, retention or termination plan, program, policy or arrangement or (within the meaning iv) other material compensation or benefit plan, program, policy or arrangement, in each case, sponsored, maintained, contributed to or required to be maintained or contributed to by VeraSun, any of Section 4001(a)(15) of ERISA) for which its Subsidiaries or any other person or entity that, together with the Company or any of its SubsidiariesVeraSun, is or was treated as a single employer under Section 414 of the Code would reasonably be expected to incur liability under Section 4063 (each, a “VeraSun Commonly Controlled Entity”) for the benefit of any current or 4064 former director, officer, employee or independent contractor of ERISA. (e) No proceedings (other than routine claims for benefits in the ordinary course) are pending or, to the knowledge of the Company, threatened with respect to any Company Plan VeraSun or against the assets of such Company Plan. (f) No Company Plan provides post-termination welfare benefits, and neither the Company nor any of its Subsidiaries has any obligation to provide any post-termination welfare benefitsSubsidiaries, in each case other than health care continuation as the VeraSun Benefit Agreements (defined below) (each, a “VeraSun Benefit Plan”). Section 3.02(l)(i)(B) of VeraSun Disclosure Schedule sets forth a complete and accurate list of each employment, consulting, incentive or deferred compensation, material equity or material equity-based compensation, severance, change in control, retention, termination or other material contract between VeraSun or any of its Subsidiaries, on the one hand, and any current or former director, officer, employee or independent contractor of VeraSun or any of its Subsidiaries, on the other hand (each, a “VeraSun Benefit Agreement”). With respect to each VeraSun Benefit Plan and VeraSun Benefit Agreement, VeraSun has made available to US BioEnergy complete and accurate copies of (A) such VeraSun Benefit Plan or VeraSun Benefit Agreement, including any amendment thereto, (B) each trust, insurance, annuity or other funding contract related thereto, (C) the most recent financial statements and actuarial or other valuation reports prepared with respect thereto and (D) the two most recent annual reports on Form 5500 required by Section 4980B of to be filed with the CodeIRS with respect thereto (if any). (gii) Each Company VeraSun Benefit Plan which and VeraSun Benefit Agreement (and any related trust or other funding vehicle) has been administered in accordance with its terms and is intended to be qualified under Section 401(a) of in compliance with ERISA, the Code and all other applicable Laws, except for any failures to do so that, individually or in the aggregate, have not had and are not reasonably likely to have a Material Adverse Effect on VeraSun. Each of VeraSun and its Subsidiaries is in compliance with ERISA, the Code and all other Laws applicable to VeraSun Benefit Plans and VeraSun Benefit Agreements, except for any noncompliance that, individually or in the aggregate, has not had and is not reasonably likely to have a Material Adverse Effect on VeraSun. None of VeraSun or any of its Subsidiaries has received a favorable determination letter from the IRS covering all tax law changes prior to the Economic Growth and Tax Relief Reconciliation Act notice of 2001 or is a prototype plan subject to a favorable opinion letter that may be relied on, and, to the knowledge Knowledge of VeraSun, there are no investigations by any Governmental Entity with respect to or termination proceedings or other claims, suits or proceedings (except routine claims for benefits payable in the Companyordinary course) against or involving any VeraSun Benefit Plan or VeraSun Benefit Agreement, no circumstances exist except for any investigations, claims, suits or existed that has proceedings that, individually or is in the aggregate, have not had and are not reasonably likely to affect such favorable determination have a Material Adverse Effect on VeraSun. (iii) Neither VeraSun, nor any of its Subsidiaries nor any VeraSun Commonly Controlled Entity has sponsored, maintained, contributed to or result in the loss of qualification of such Company been required to maintain or contribute to, or has any actual or contingent material liability under, any VeraSun Benefit Plan under Section 401(a) of the Code. Each outstanding option is a stock right that is exempt from the provisions of section 409A of the Code. Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and applicable guidance issued thereunder (a “Nonqualified Deferred Compensation Plan”) that is subject to Section 409A 302 or Title IV of ERISA or Section 412 of the Code has been operated in good faith compliance with or is otherwise a defined benefit plan. No VeraSun Benefit Plan or VeraSun Benefit Agreement provides health, medical or other welfare benefits after retirement or other termination of employment (other than for continuation coverage required under Section 409A 4980(B)(f) of the Code since January 1or similar legal requirement) and no circumstances exist that could result in VeraSun or any of its Subsidiaries becoming obligated to provide any such benefits, 2005. No Nonqualified Deferred Compensation Plan that is intended except in each case for benefits that, individually or in the aggregate, have not had and are not reasonably likely to be exempt from Section 409A of the Code due to the effective date provisions that are applicable to Section 409A of the Code, as set forth in Section 885(d) of the American Jobs Creation Act of 2004, as amended (the “AJCA”), has been “materially modified” within the meaning of Section 885(d)(2)(B) of the AJCA after October 3, 2004, based upon have a good faith reasonable interpretation of the AJCAMaterial Adverse Effect on VeraSun. (hiv) Neither None of the execution by the Company and delivery of this Agreement nor Agreement, the obtaining of the shareholder approval or the consummation of the Merger or any other transaction contemplated by this Agreement (alone or in conjunction with any other event, including any termination of employment on or following the Effective Time) will (A) entitle any current or former director, officer, employee or independent contractor of VeraSun or any of its Subsidiaries to any material compensation or benefit, (B) materially accelerate the time of payment or vesting, or trigger any payment or funding, of any compensation or benefits or trigger any other material obligation under any VeraSun Benefit Plan or VeraSun Benefit Agreement or (C) result in any material breach or violation of, default under or limit VeraSun’s right to amend, modify or terminate any VeraSun Benefit Plan or VeraSun Benefit Agreement. (v) No amount or other entitlement that could be received as a result of the transactions contemplated hereby will (either alone or upon occurrence in conjunction with any other event) by any “disqualified individual” (as defined in Section 280G(c) of any additional or subsequent eventsthe Code) (i) constitute an event under any Company Plan or any trust or loan related to any of those plans or agreements that will or may result in any payment, acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employee, VeraSun will constitute an “excess parachute payment” (iias defined in Section 280G(b)(1) result in the triggering or imposition of any restrictions or limitations on the right of the Company to amend or terminate any Company Plan or (iii) result in the failure of any amount to be deductible by reason of Section 280G of the Code. (i) ). No Company Plan is under audit director, officer, employee or is the subject independent contractor of an investigation by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other governmental agency, nor, to the knowledge of the Company, is any such audit or investigation pending or threatened. (j) All options, equity and equity-based awards under Company Plans have been granted in compliance with the terms of the applicable Company Plans, with applicable laws, and with the applicable provisions of the Articles of Incorporation and Bylaws as in effect at the time of the applicable grant. (k) No deduction for federal income tax purposes has been or is expected by the Company to be disallowed for remuneration paid by the Company VeraSun or any of its Subsidiaries by reason of Section 162(m) of the Code, including is entitled to receive any gross-up or additional payment by reason of the transactions contemplated herebytax required by Section 409A or 4999 of the Code being imposed on such person.

ERISA; Employee Benefit Plans. (a) Schedule 4.12 Except for the Company Stock Option Plans and the plans and agreements listed in Section 4.13 of the Company Reports contain Letter (collectively, the "Company Benefit Plans"), neither the Company nor any ERISA Affiliate (as defined below) maintains, is a true party to, contributes to or is obligated to contribute to, and complete list none of each material “its employees or former employees, their dependents, or survivors receive benefits under, any of the following (whether or not set forth in a written document): (i) Any employee benefit plan” (within the meaning of , as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“"ERISA”"); (ii) and each other material employmentAny bonus, deferred compensation, incentive, restricted stock, stock purchase, stock option, stock purchaseappreciation right, restricted stock phantom stock, supplemental pension, executive compensation, cafeteria benefit, dependent care, director or other equity-basedemployee loan, incentivefringe benefit, sabbatical, severance, terminationtermination pay or similar plan, retentionprogram, change of control policy, agreement or arrangement; or (iii) Any plan, program, agreement, policy, commitment or other material benefit plans, programs, agreements, contracts, policies or arrangements contributed to, sponsored or maintained by arrangement relating to the Company or any of its Subsidiaries (or which the Company or any of its Subsidiaries is obligated to contribute to, sponsor or maintain) as of the date hereof for the benefit provision of any future, current, benefit described in Section 3(1) of ERISA to former employees or retired employee, officer, consultant, independent contractor or director of the Company or any of its Subsidiaries (collectively, the “Company Employees”) directors or to which their survivors, other than procedures intended to comply with the Company or any Consolidated Omnibus Budget Reconciliation Act of its Subsidiaries is a party or with respect to which the Company or any of its Subsidiaries has or 1985. (b) Except as would not reasonably be expected to have any liability a Material Adverse Effect on the Company: (such plans, programs, policies, agreements and arrangements, including the Company Stock Plans, and including material bonus, vacation, deferred compensation, profit sharing, savings, retirement, retiree medical or life insurance, supplemental retirement, severance and fringe benefit plans contributed to, sponsored or maintained by the Company or any of its Subsidiaries (or which the Company or any of its Subsidiaries is obligated to contribute to, sponsor or maintaini) as of the date hereof for the benefit of any Company Employee, collectively, “Company Plans”). (b) With respect to each Company Plan, the Company has made available to Investor a currentcomplied with ERISA, accurate the Code and complete copy, including any amendments, of (i) each such Company Plan (or, if a plan is not written, a written description thereof) and, all laws and regulations applicable to the extent applicable, Company Benefit Plans and each Company Benefit Plan has been maintained and administered in compliance with its terms; and (ii) any related trust agreement or other funding instrument, (iii) the most recent determination letter received from the Internal Revenue Service (the “IRS”) for each Company Benefit Plan that is intended to be qualified qualify under Section 401(a) of the Internal Revenue Code and each trust intended to qualify under Section 501(a) of 1986the Code is the subject of a favorable determination opinion, as amended and including any applicable guidance notification or advisory letter from the IRS issued or regulations promulgated thereunder (the “Code”), (iv) the most recent summary plan description and any summaries of any material modification of such Company Plan, (v) all prospectuses prepared in connection with any such Company Plan, (vi) any material communications to or from any governmental agency with respect to any ongoing or pending claim or audit or any claim or audit concluded on or after January 1, 20061989, and (vii) for nothing has occurred to the most recent two years (A) Knowledge of the Form 5500 and attached schedules, (B) audited financial statements, and (C) actuarial valuation reports, if anyCompany which may reasonably be expected to adversely affect such determination. (c) Each Neither the Company Plan has been established and administered nor any ERISA Affiliate has, since its inception, terminated, suspended, discontinued contributions to or withdrawn from any employee pension benefit plan, as defined in all material respects in accordance with its terms and in compliance with the applicable provisions of applicable laws, rules and regulations, including ERISA and the Code. No “prohibited transaction,” within the meaning of Section 4975 of the Code or Sections 406 or 407 3(2) of ERISA, and not otherwise exempt under Section 408 of ERISAincluding (without limitation) any multiemployer plan, and no breach of fiduciary responsibility, has occurred with respect to any Company Plan, and no event, transaction, fact or condition exists that, to the knowledge of the Company, presents a risk to the Company or any of its Subsidiaries, or after the Closing Date, to the Investor, or any of their respective Affiliates (as such term is defined in the Investor Rights Agreement), of incurring any such liability. All contributions, premiums and other payments required to be made with respect to each Company Plan have been made on or before their due dates under applicable law and the terms of such Company Plan and all amounts properly accrued to date or as of the Effective Time as liabilities of the Company or any of its Subsidiaries which are not yet due have been properly recorded on the books of the Company and, to the extent required by Generally Accepted Accounting Principles (“GAAP”), adequate reserves are reflected on the Financial Statements of the Company or liability thereof was incurred in the ordinary course of business consistent with past practice since December 31, 2007. No Company Plan has an “accumulated funding deficiency” (whether or not waivedSection 3(37) within the meaning of Section 412 of the Code or Section 302 of ERISA. (d) The Company has provided or made available to VAC or Parent complete, accurate and current copies of each of the Company Benefit Plans, including the text (including amendments) of each of the Company Benefit Plans, to the extent reduced to writing and a summary of each of the Company Benefit Plans, to the extent not previously reduced to writing as well as the most recent annual report on Form 5500 filed with the Internal Revenue Service with respect to each Company Benefit Plan (if such report was required), and each trust agreement and group annuity contract relating to any Company Benefit Plan. (e) Neither the Company nor any of its Subsidiaries is now contributing to or has, since January 1, 2003, contributed to or had, ERISA Affiliate has incurred any liability, contingent or otherwise, with respect to (i) a pension plan (within the meaning of Section 3(2) of ERISA) subject to accumulated funding deficiency under Section 412 of the Code or any termination or withdrawal liability under Title IV of ERISA; . (iif) a multiemployer plan All contributions, premiums or other payments due from the Company to (within or under) any Company Benefit Plan have been fully paid or adequately provided for on the meaning books and financial statements of the Company. All accruals (including, where appropriate, proportional accruals for partial periods) have been made in accordance with prior practices. (g) For all purposes under this Section 3(37) or 4001(a)(3) of ERISA); or 4.13, "ERISA Affiliate" shall mean each person (iii) a single employer pension plan (within the meaning of as defined in Section 4001(a)(153(9) of ERISA) for which any other person that, together with the Company or any of its SubsidiariesCompany, is or was treated as a single employer under Section 4001(b) of ERISA or Section 414 of the Code would reasonably be expected to incur liability under Section 4063 or 4064 of ERISA. (e) No proceedings (other than routine claims for benefits in the ordinary course) are pending or, to the knowledge of the Company, threatened with respect to any Company Plan or against the assets of such Company Plan. (f) No Company Plan provides post-termination welfare benefits, and neither the Company nor any of its Subsidiaries has any obligation to provide any post-termination welfare benefits, in each case other than health care continuation as required by Section 4980B of the Code. (g) Each Company Plan which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS covering all tax law changes prior to the Economic Growth and Tax Relief Reconciliation Act of 2001 or is a prototype plan subject to a favorable opinion letter that may be relied on, and, to the knowledge of the Company, no circumstances exist or existed that has or is likely to affect such favorable determination or result in the loss of qualification of such Company Plan under Section 401(a) of the Code. Each outstanding option is a stock right that is exempt from the provisions of section 409A of the Code. Each Company Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and applicable guidance issued thereunder (a “Nonqualified Deferred Compensation Plan”) that is subject to Section 409A of the Code has been operated in good faith compliance with Section 409A of the Code since January 1, 2005. No Nonqualified Deferred Compensation Plan that is intended to be exempt from Section 409A of the Code due to the effective date provisions that are applicable to Section 409A of the Code, as set forth in Section 885(d) of the American Jobs Creation Act of 2004, as amended (the “AJCA”), has been “materially modified” within the meaning of Section 885(d)(2)(B) of the AJCA after October 3, 2004, based upon a good faith reasonable interpretation of the AJCA. (h) Neither the execution by the Company of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon occurrence of any additional or subsequent events) (i) constitute an event under any Company Plan or any trust or loan related to any of those plans or agreements that will or may result in any payment, acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Company Employee, (ii) result in the triggering or imposition of any restrictions or limitations on the right of the Company to amend or terminate any Company Plan or (iii) result in the failure of any amount to be deductible by reason of Section 280G of the Code. (i) No Company Plan is under audit or is the subject of an investigation by the IRS, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation, the SEC or any other governmental agency, nor, to the knowledge of the Company, is any such audit or investigation pending or threatened. (j) All options, equity and equity-based awards under Company Plans have been granted in compliance with the terms of the applicable Company Plans, with applicable laws, and with the applicable provisions of the Articles of Incorporation and Bylaws as in effect at the time of the applicable grant. (k) No deduction for federal income tax purposes has been or is expected by the Company to be disallowed for remuneration paid by the Company or any of its Subsidiaries by reason of Section 162(m) of the Code, including by reason of the transactions contemplated hereby.