Common use of ERISA Representations Clause in Contracts

ERISA Representations. (a) Schedule 3.11 sets forth each "employee benefit plan", as defined in Section 3(3) of ERISA, that (i) is subject to any provision of ERISA, (ii) is maintained, administered or contributed to by the Company or any of its ERISA Affiliates and (iii) covers any employee or former employee of the Company or any Subsidiary. Such plans are hereinafter referred to as the "Employee Plans". The Company has furnished or made available to the Investors or their counsel copies of such plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof together with the most recent annual report prepared in connection with any such plan (Form 5500 including, if applicable, Schedule B thereto). No Employee Plan is and neither the Company nor any of its ERISA Affiliates maintains, sponsors, or is obligated to contributed to, or has at any time maintained, sponsored or been obligated to contribute to, a Multiemployer Plan, a Title IV Plan or an employee benefit plan or arrangement maintained in connection with any trust described in Section 501(c)(9) of the Code. (b) No "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan excluding transactions effected pursuant to a statutory or administrative exemption, which, assuming the taxable period of such transaction expired as of the date hereof, when considered individually or in the aggregate with any other such prohibited transaction, could subject the Company or any of its Subsidiaries to a penalty or tax imposed by either Section 502(i) of ERISA or Section 4975 of the Code in an amount which would be material. (c) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust created under any such Employee Plan is exempt from tax under Section 501(a) of the Code and has been so exempt during the period from creation to date. The Company has provided the Investors or their counsel with the most recent determination letters of the Internal Revenue Service relating to each such Employee Plan. Each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code. (d) Schedule 3.11 sets forth each Benefit Arrangement. The Company has furnished or made available to the Investors or their counsel copies or descriptions of each Benefit Arrangement. Each Benefit Arrangement has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations. (e) Neither the Company nor any of its ERISA Affiliates has any current or projected liability in respect of post-employment or post-retirement welfare benefits for retired or former employees of the Company and any Subsidiary, except as required to avoid excise tax under Section 4980B of the Code or as previously disclosed by the Company in writing to the Investors. (f) Except as disclosed in writing to the Investors prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company or any of its ERISA Affiliates relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of the expense incurred in respect thereof for the fiscal year ended prior to the date hereof. (g) Except as set forth in Schedule 3.11, there is no contract, agreement, plan or arrangement covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code, except as previously disclosed by the Company in writing to the Investors. (h) No material tax under Section 4980B of the Code has been incurred in respect of any Employee Plan that is a group health plan, as defined in Section 5000(b)(1) of the Code. (i) No employee or former employee of the Company or any of its ERISA Affiliates will become entitled to any bonus, retirement, severance, job security or similar benefit or enhancement of such a benefit solely as a result of the transactions contemplated by this Agreement.

ERISA Representations. The Company and each Seller, jointly and severally, hereby represent and warrant to Buyer that: (a) Schedule 3.11 sets forth SCHEDULE 9.02 lists each "Employee Plan that covers any employee benefit plan"of the Company, as defined in Section 3(3) copies or descriptions of ERISAall of which have previously been made available or furnished to Buyer. With respect to each Employee Plan, that (i) is subject to any provision of ERISA, (ii) is maintained, administered or contributed to by the Company has provided the most recently filed Form 5500 and an accurate summary description of such plan. The Company has provided Buyer with complete age, salary, service and related data as of the most recent practicable date for employees of the Company. (b) SCHEDULE 9.02 also includes a list of each Benefit Arrangement of the Company, copies or any descriptions of its ERISA Affiliates and which have been made available or furnished previously to Buyer. (iiic) None of the Employee Plans or other arrangements listed on SCHEDULE 9.02 covers any non-United States employee or former employee of the Company or any Subsidiary. Such plans are hereinafter referred to as the "Employee Plans". The Company has furnished or made available to the Investors or their counsel copies of such plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof together with the most recent annual report prepared in connection with any such plan (Form 5500 including, if applicable, Schedule B thereto). No Employee Plan is and neither the Company nor any of its ERISA Affiliates maintains, sponsors, or is obligated to contributed to, or has at any time maintained, sponsored or been obligated to contribute to, a Multiemployer Plan, a Title IV Plan or an employee benefit plan or arrangement maintained in connection with any trust described in Section 501(c)(9) of the CodeCompany. (bd) No "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan excluding transactions effected pursuant to a statutory or administrative exemption, which, assuming the taxable period of such transaction expired as of the date hereof, when considered individually or in the aggregate with any other such prohibited transaction, could subject the Company or any of its Subsidiaries to a penalty or tax imposed by either Section 502(i) of ERISA or Section 4975 of the Code in an amount which would be materialPlan. (ce) No Employee Plan is a Multiemployer Plan and no Employee Plan is subject to Title IV of ERISA. The Company and its Affiliates have not incurred, nor do they reasonably expect to incur, any liability under Title IV ERISA arising in connection with the termination of any plan covered or previously covered by Title IV of ERISA. (f) Each Employee Plan that which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust created under any such Employee Plan forming a part thereof is exempt from tax under pursuant to Section 501(a) of the Code and has been so exempt during the period from creation to dateCode. The Company has provided the Investors or their counsel with furnished to Buyer a copy of the most recent determination letters of the Internal Revenue Service relating determination letter with respect to each such Employee Planplan. Each Employee Plan has been maintained in substantial material compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code, which are applicable to such plan. (dg) Schedule 3.11 sets forth each Benefit Arrangement. The Company has furnished or made available to the Investors or their counsel copies or descriptions of each Benefit Arrangement. Each Benefit Arrangement has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulationsregulations which are applicable to such Benefit Arrangement. (eh) Neither With respect to the Company nor any of its ERISA Affiliates has any current or projected liability in respect of post-employment or post-retirement welfare benefits for retired or employees and former employees of the Company and any SubsidiaryCompany, there are no employee post-retirement medical or health plans in effect, except as required to avoid excise tax under by Section 4980B of the Code or as previously disclosed by the Company in writing to the InvestorsCode. (fi) Except as disclosed on SCHEDULE 9.02(i), all contributions and payments accrued under each Employee Plan and Benefit Arrangement, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the period ending on the Closing Date, will be discharged and paid on or prior to the Closing Date. Except in connection with termination of the Company's Profit Sharing Plan or as disclosed in writing to the Investors Buyer prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company or any of its ERISA Affiliates relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of the expense incurred in respect thereof for the fiscal year ended prior to the date hereof. (g) Except as set forth in Schedule 3.11, there is no contract, agreement, plan or arrangement covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code, except as previously disclosed by the Company in writing to the Investors. (hj) No material tax under Section 4980B or Section 4980D of the Code has been incurred in respect of any Employee Plan that is a group health plan, as defined in Section 5000(b)(1) of the Code. (ik) No employee or former employee of the Company or any of its ERISA Affiliates will become entitled to any bonus, retirement, severance, job security severance or similar benefit or enhancement of such a enhanced benefit solely as a result of the transactions contemplated by this Agreementhereby.

ERISA Representations. The Company and each Seller, jointly and severally, hereby represent and warrant to Buyer that: (a) Schedule 3.11 sets forth SCHEDULE 9.02 lists each "Employee Plan that covers any employee benefit plan"of the Company, as defined in Section 3(3) copies or descriptions of ERISAall of which have previously been made available or furnished to Buyer. With respect to each Employee Plan, that the Company has provided a copy of each of Employee Plans and related plan documents (i) is including trust documents and insurance policies or contracts), with respect to each Employee Plan subject to any provision ERISA reporting requirements, copies of ERISAthe Form 5500 reports filed for the last three plan years, and an accurate summary description of such plan. The Company has provided Buyer with complete age, salary, service and related data as of the most recent practicable date for employees of the Company. (iib) is maintainedSCHEDULE 9.02 also includes a list of each Benefit Arrangement of the Company, administered copies and descriptions of which have been made available or contributed furnished previously to by Buyer. (c) None of the Company Employee Plans or any of its ERISA Affiliates and (iii) other arrangements listed on SCHEDULE 9.02 covers any non-United States employee or former employee of the Company or any Subsidiary. Such plans are hereinafter referred to as the "Employee Plans". The Company has furnished or made available to the Investors or their counsel copies of such plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof together with the most recent annual report prepared in connection with any such plan (Form 5500 including, if applicable, Schedule B thereto). No Employee Plan is and neither the Company nor any of its ERISA Affiliates maintains, sponsors, or is obligated to contributed to, or has at any time maintained, sponsored or been obligated to contribute to, a Multiemployer Plan, a Title IV Plan or an employee benefit plan or arrangement maintained in connection with any trust described in Section 501(c)(9) of the CodeBusiness. (bd) No "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan excluding transactions effected pursuant to a statutory or administrative exemption, which, assuming the taxable period of such transaction expired as of the date hereof, when considered individually or in the aggregate with any other such prohibited transaction, could subject the Company or any of its Subsidiaries to a penalty or tax imposed by either Section 502(i) of ERISA or Section 4975 of the Code in an amount which would be materialPlan. (ce) No Employee Plan is a Multiemployer Plan and no Employee Plan is subject to Title IV of ERISA. The Company and its Affiliates have not incurred any liability under Title IV or ERISA arising in connection with the termination of any plan covered or previously covered by Title IV of ERISA. (f) Each Employee Plan that which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust created under any such Employee Plan forming a part thereof is exempt from tax under pursuant to Section 501(a) of the Code and has been so exempt during the period from creation to dateCode. The Company has provided the Investors or their counsel with furnished to Buyer copies of the most recent determination letters of the Internal Revenue Service relating determination letters with respect to each such Employee Planplan as to its qualified status under the Code, including all amendments to the Code effected by the Tax Reform Act of 1986 and subsequent legislation. Each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code, which are applicable to such plan. (dg) Schedule 3.11 sets forth Each Employee Plan and each Benefit Arrangement. The Company has furnished or made available to the Investors or their counsel copies or descriptions of each Benefit Arrangement. Each Benefit Arrangement has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulationsregulations which are applicable to such Benefit Arrangement. (eh) Neither With respect to the Company nor any of its ERISA Affiliates has any current or projected liability in respect of post-employment or post-retirement welfare benefits for retired or employees and former employees of the Company and any SubsidiaryCompany, there are no employee post-retirement medical or health plans in effect, except as required to avoid excise tax under by Section 4980B of the Code or as previously disclosed by the Company set forth in writing to the InvestorsSCHEDULE 9.02. (fi) Except as set forth in SCHEDULE 9.02 or as provided elsewhere herein, all contributions and payments accrued under each Employee Plan and Benefit Arrangement, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the period ending on the Closing Date, will be discharged and paid on or prior to the Closing Date. Except as disclosed in writing to the Investors Buyer prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company or any of its ERISA Affiliates relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of the expense incurred in respect thereof for the fiscal year ended prior to the date hereof. (gj) Except as set forth in Schedule 3.11SCHEDULE 9.02, there is no contract, agreement, plan or arrangement covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code, except as previously disclosed by the Company in writing to the Investors. (hk) No material tax under Section 4980B of the Code has been incurred in respect of any Employee Plan that is a group health plan, as defined in Section 5000(b)(1) of the Code. (il) No employee Except as set forth in SCHEDULE 9.02 or former this Agreement, no employee of the Company or any of its ERISA Affiliates will become entitled to any bonus, retirement, severance, job security severance or similar benefit or enhancement of such a enhanced benefit solely as a result of the transactions contemplated by this Agreementhereby. (m) The Company does not have, nor is it reasonably expected to have, any liability under Title IV of ERISA.

ERISA Representations. The Company and Stockholder, jointly and severally, hereby represent and warrant to Parent that: (a) Schedule 3.11 sets forth SCHEDULE 9.02 lists each "Employee Plan that covers any employee benefit plan"of the Company, as defined in Section 3(3) copies and descriptions of ERISAall of which have previously been made available or furnished to Parent. With respect to each Employee Plan, that (i) is subject to any provision of ERISA, (ii) is maintained, administered or contributed to by the Company has provided the three most recently filed Forms 5500 and an accurate summary description of such plan. The Company has provided Parent with complete age, salary, service and related data as of the most recent practicable date for employees of the Company. (b) SCHEDULE 9.02 also includes a list of each Benefit Arrangement of the Company, copies and descriptions of which have been made available or any furnished previously to Parent. (c) None of its ERISA Affiliates and (iii) the Employee Plans or other arrangements listed on SCHEDULE 9.02 covers any non-United States employee or former employee of the Company or any Subsidiary. Such plans are hereinafter referred to as the "Employee Plans". The Company has furnished or made available to the Investors or their counsel copies of such plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof together with the most recent annual report prepared in connection with any such plan (Form 5500 including, if applicable, Schedule B thereto). No Employee Plan is and neither the Company nor any of its ERISA Affiliates maintains, sponsors, or is obligated to contributed to, or has at any time maintained, sponsored or been obligated to contribute to, a Multiemployer Plan, a Title IV Plan or an employee benefit plan or arrangement maintained in connection with any trust described in Section 501(c)(9) of the CodeCompany. (bd) No "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan excluding transactions effected pursuant to a statutory or administrative exemption, which, assuming the taxable period of such transaction expired as of the date hereof, when considered individually or in the aggregate with any other such prohibited transaction, could subject the Company or any of its Subsidiaries to a penalty or tax imposed by either Section 502(i) of ERISA or Section 4975 of the Code in an amount which would be materialPlan. (ce) No plan or arrangement listed on Schedule 9.02 is a Multiemployer Plan. Neither the Company nor any Subsidiary or ERISA Affiliate has ever contributed to or had an obligation to contribute to any Multiemployer Plan. (f) Each Employee Plan that which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust created under any such Employee Plan forming a part thereof is exempt from tax under pursuant to Section 501(a) of the Code and has been so exempt during the period from creation to dateCode. The Company has provided the Investors or their counsel with furnished to Parent copies of the most recent determination letters of the Internal Revenue Service relating determination letters with respect to each such Employee Planplan. Each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code, which are applicable to such plan. (dg) Schedule 3.11 sets forth each Benefit Arrangement. The Company has furnished or made available to the Investors or their counsel copies or descriptions of each Benefit Arrangement. Each Benefit Arrangement has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules and regulationsregulations which are applicable to such Benefit Arrangement. (eh) Neither With respect to the Company nor any of its ERISA Affiliates has any current or projected liability in respect of post-employment or post-retirement welfare benefits for retired or employees and former employees of the Company and any SubsidiaryCompany, there are no employee post-retirement medical or health plans in effect, except as required to avoid excise tax under by Section 4980B of the Code or as previously disclosed by the Company in writing to the InvestorsCode. (fi) All contributions and payments accrued under each Employee Plan and Benefit Arrangement, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the period ending on the Closing Date, will be discharged and paid on or prior to the Closing Date. Except as disclosed in writing to the Investors Parent prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company Company, Stockholder or any of its their ERISA Affiliates relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of the expense incurred in respect thereof for the fiscal year ended prior to the date hereof. (gj) Except As of the Closing Date, the market value of assets under each Employee Plan subject to Title IV of ERISA (a "Defined Benefit Plan"), other than any Multiemployer Plan, equaled or exceeded the present value of benefit liabilities thereunder as set forth determined on a termination basis using the assumptions established by the PBGC as in Schedule 3.11effect on that date. No Defined Benefit Plan (other than the Rescon, there Inc. Defined Benefit Pension Plan and any Multiemployer Plan) has been completely or partially terminated or been the subject of a Reportable Event as to which notices would be required to be filed with the PBGC. No proceeding by the PBGC to terminate any Defined Benefit Plan (other than any Multiemployer Plan) has been instituted. The Company has not incurred, and does not reasonably expect to incur, any liability to the PBGC (other than PBGC premium payments) or any other liability under Title IV of ERISA (including any withdrawal liability) with respect to any Defined Benefit Plan maintained by the Company or to which the Company has contributed for the benefit of any current or former employee of the Company or any ERISA Affiliate. (k) No charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand with respect to the administration or the investment of the assets of any Employee Plan maintained by the Company or to which the Company has contributed or the benefit of any current or former employee of the Company (other than routine claim for benefit) is pending. (l) Neither the Company nor any entity considered under common control with the Company (within the meaning of subsection (b), (c), (m) or (o) of Section 414 of the Code) has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from a Multiemployer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412 of the Code or premiums due to the PBGC under Title IV of ERISA, which liability will not have been satisfied as of the Closing Date. (m) There is no contract, agreement, plan or arrangement covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code, except as previously disclosed by the Company in writing to the Investors. (hn) No material tax under Section 4980B of the Code has been incurred in respect of any Employee Plan that is a group health plan, as defined in Section 5000(b)(1) of the Code. (io) No employee or former Except as set forth on SCHEDULE 9.02, no employee of the Company or any of its ERISA Affiliates will become entitled to any bonus, retirement, severance, job security severance or similar benefit or enhancement of such a enhanced benefit solely as a result of the transactions contemplated by this Agreementhereby.

ERISA Representations. The Company and Seller, jointly and severally, hereby represent and warrant to Buyer that: (a) The Company has provided Buyer with complete salary, service and related data as of the most recent practicable date for employees and contractors of the Company. (b) Schedule 3.11 sets forth 9.02 lists each "Employee Plan that covers any employee benefit plan"of the Company, as defined in Section 3(3) copies or descriptions of ERISAall of which have previously been made available or furnished to Buyer. With respect to each Employee Plan, that (i) is subject to any provision of ERISA, (ii) is maintained, administered or contributed to by the Company has provided the most recently filed Form 5500 and an accurate summary description of such plan. (c) Schedule 9.02 also includes a list of each Benefit Arrangement of the Company, copies or any descriptions of its ERISA Affiliates and which have been made available or furnished previously to Buyer. (iiid) None of the Employee Plans or Benefit Arrangements listed on Schedule 9.02 covers any non-United States employee or former employee of the Company or any Subsidiary. Such plans are hereinafter referred to as the "Employee Plans". The Company has furnished or made available to the Investors or their counsel copies of such plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof together with the most recent annual report prepared in connection with any such plan (Form 5500 including, if applicable, Schedule B thereto). No Employee Plan is and neither the Company nor any of its ERISA Affiliates maintains, sponsors, or is obligated to contributed to, or has at any time maintained, sponsored or been obligated to contribute to, a Multiemployer Plan, a Title IV Plan or an employee benefit plan or arrangement maintained in connection with any trust described in Section 501(c)(9) of the CodeBusiness. (be) No "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan excluding transactions effected pursuant to a statutory or administrative exemption, which, assuming the taxable period of such transaction expired as of the date hereof, when considered individually or in the aggregate with any other such prohibited transaction, could subject the Company or any of its Subsidiaries to a penalty or tax imposed by either Section 502(i) of ERISA or Section 4975 of the Code in an amount which would be materialPlan. (cf) No Employee Plan is a Multiemployer Plan and no Employee Plan is subject to Title IV of ERISA. The Company and its Affiliates have not incurred any liability under Title IV or ERISA arising in connection with the termination of any plan covered or previously covered by Title IV of ERISA. (g) Each Employee Plan that which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust created under any such Employee Plan forming a part thereof is exempt from tax under pursuant to Section 501(a401(a) of the Code and has been so exempt during the period from creation to dateCode. The Company has provided the Investors or their counsel with furnished to Buyer copies of the most recent determination letters of the Internal Revenue Service relating determination letters with respect to each such Employee Planplan. Each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules Laws and regulationsOrders, including but not limited to ERISA and the Code, which are applicable to such plan. (dh) Schedule 3.11 sets forth Each Employee Plan and each Benefit Arrangement. The Company has furnished or made available to the Investors or their counsel copies or descriptions of each Benefit Arrangement. Each Benefit Arrangement has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all Laws and Orders which are applicable statutesto such Employee Plan or Benefit Arrangement, orders, rules and regulationsas the case may be. (ei) Neither With respect to the Company nor any of its ERISA Affiliates has any current or projected liability in respect of post-employment or post-retirement welfare benefits for retired or employees and former employees of the Company and any SubsidiaryCompany, there are no employee post-retirement medical or health plans in effect, except as required to avoid excise tax under by Section 4980B of the Code or as previously disclosed by the Company in writing to the InvestorsCode. (fj) All contributions and payments accrued under each Employee Plan and Benefit Arrangement, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the period ending on the Closing Date, will be discharged and paid on or prior to the Closing Date except to the extent reflected on the Closing Balance Sheet . Except as disclosed in writing to the Investors Buyer prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company Seller or any of its ERISA Affiliates relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of the expense incurred in respect thereof for the fiscal year ended prior to the date hereof. (gk) Except as set forth in Schedule 3.11, there There is no contract, agreement, plan Contract or arrangement covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code, except as previously disclosed by the Company in writing to the Investors. (hl) No material tax under Section 4980B of the Code has been incurred in respect of any Employee Plan that is a group health plan, as defined in Section 5000(b)(1) of the Code. (im) No employee or former employee of the Company or any of its ERISA Affiliates will become entitled to any bonus, retirement, severance, job security severance or similar benefit or enhancement of such a enhanced benefit solely as a result of the transactions contemplated by this Agreementhereby. (n) The Company does not have, nor is it reasonably expected to have, any Liability under Title IV of ERISA.

ERISA Representations. The Company, Seller and K▇▇▇▇, jointly and severally, hereby represent and warrant to Buyer that: (a) The Company has provided Buyer with complete salary, service and related data as of the most recent practicable date for employees and contractors of the Company. (b) Schedule 3.11 sets forth 9.02 lists each "Employee Plan that covers any employee benefit plan"of the Company, as defined in Section 3(3) copies or descriptions of ERISAall of which have previously been made available or furnished to Buyer. With respect to each Employee Plan, that (i) is subject to any provision of ERISA, (ii) is maintained, administered or contributed to by the Company has provided the most recently filed Form 5500 and an accurate summary description of such plan. (c) Schedule 9.02 also includes a list of each Benefit Arrangement of the Company, copies or any descriptions of its ERISA Affiliates and which have been made available or furnished previously to Buyer. (iiid) None of the Employee Plans or Benefit Arrangements listed on Schedule 9.02 covers any non-United States employee or former employee of the Company or any Subsidiary. Such plans are hereinafter referred to as the "Employee Plans". The Company has furnished or made available to the Investors or their counsel copies of such plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof together with the most recent annual report prepared in connection with any such plan (Form 5500 including, if applicable, Schedule B thereto). No Employee Plan is and neither the Company nor any of its ERISA Affiliates maintains, sponsors, or is obligated to contributed to, or has at any time maintained, sponsored or been obligated to contribute to, a Multiemployer Plan, a Title IV Plan or an employee benefit plan or arrangement maintained in connection with any trust described in Section 501(c)(9) of the CodeBusiness. (be) No "prohibited transaction", as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Employee Plan excluding transactions effected pursuant to a statutory or administrative exemption, which, assuming the taxable period of such transaction expired as of the date hereof, when considered individually or in the aggregate with any other such prohibited transaction, could subject the Company or any of its Subsidiaries to a penalty or tax imposed by either Section 502(i) of ERISA or Section 4975 of the Code in an amount which would be materialPlan. (cf) No Employee Plan is a Multiemployer Plan and no Employee Plan is subject to Title IV of ERISA. The Company and its Affiliates have not incurred any liability under Title IV or ERISA arising in connection with the termination of any plan covered or previously covered by Title IV of ERISA. (g) Each Employee Plan that which is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to date, and each trust created under any such Employee Plan forming a part thereof is exempt from tax under pursuant to Section 501(a401(a) of the Code and has been so exempt during the period from creation to dateCode. The Company has provided the Investors or their counsel with furnished to Buyer copies of the most recent determination letters of the Internal Revenue Service relating determination letters with respect to each such Employee Planplan. Each Employee Plan has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all applicable statutes, orders, rules Laws and regulationsOrders, including but not limited to ERISA and the Code, which are applicable to such plan. (dh) Schedule 3.11 sets forth Each Employee Plan and each Benefit Arrangement. The Company has furnished or made available to the Investors or their counsel copies or descriptions of each Benefit Arrangement. Each Benefit Arrangement has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all Laws and Orders which are applicable statutesto such Employee Plan or Benefit Arrangement, orders, rules and regulationsas the case may be. (ei) Neither With respect to the Company nor any of its ERISA Affiliates has any current or projected liability in respect of post-employment or post-retirement welfare benefits for retired or employees and former employees of the Company and any SubsidiaryCompany, there are no employee post-retirement medical or health plans in effect, except as required to avoid excise tax under by Section 4980B of the Code or as previously disclosed by the Company in writing to the InvestorsCode. (fj) All contributions and payments accrued under each Employee Plan and Benefit Arrangement, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the period ending on the Closing Date, will be discharged and paid on or prior to the Closing Date except to the extent reflected on the Closing Balance Sheet . Except as disclosed in writing to the Investors Buyer prior to the date hereof, there has been no amendment to, written interpretation of or announcement (whether or not written) by the Company Seller or any of its ERISA Affiliates relating to, or change in employee participation or coverage under, any Employee Plan or Benefit Arrangement that would increase materially the expense of maintaining such Employee Plan or Benefit Arrangement above the level of the expense incurred in respect thereof for the fiscal year ended prior to the date hereof. (gk) Except as set forth in Schedule 3.11, there There is no contract, agreement, plan Contract or arrangement covering any employee or former employee of the Company or any of its subsidiaries that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code, except as previously disclosed by the Company in writing to the Investors. (hl) No material tax under Section 4980B of the Code has been incurred in respect of any Employee Plan that is a group health plan, as defined in Section 5000(b)(1) of the Code. (im) No employee or former employee of the Company or any of its ERISA Affiliates will become entitled to any bonus, retirement, severance, job security severance or similar benefit or enhancement of such a enhanced benefit solely as a result of the transactions contemplated by this Agreementhereby. (n) The Company does not have, nor is it reasonably expected to have, any Liability under Title IV of ERISA.