Common use of Existence of Plans Clause in Contracts

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which the Company, any of its Subsidiaries or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 of the Company Disclosure -------------- Letter, (i) neither the Company, any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical or health benefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Code, (vi) neither the Company, any of its Subsidiaries, nor any ERISA Affiliate is or was a party to any collective bargaining agreement, and (vii) neither the Company, any of its Subsidiaries, nor any ERISA Affiliate has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation). Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (a) as to which the Surviving Corporation will be required to make any contributions or with respect to which the Surviving Corporation shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation or on behalf of any other Person, after the Recap Closing, or (b) which the Surviving Corporation will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, any of its Subsidiaries or any of their respective ERISA Affiliates. The Company has made available to TNF true and complete copies of: (i) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (ii) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan Description, (iii) the three most recent annual reports for each of the Plans (including all relevant schedules), (iv) the most recently filed PBGC Form 1 (if applicable), (v) the most recent Service determination letter, if any, for each Plan which is intended to constitute a qualified plan under Section 401 of the Code and each amendment to each of the foregoing documents, and (vi) for each funded Plan, financial statements consisting of (A) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (B) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP as of such dates.

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" ------------------- shall mean (i) all "Employee Benefit Plansemployee benefit plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), ) of which the Company, any of its Subsidiaries Company or any ----- member of the same controlled group of corporations, trades or businesses as the any Company or any of its Subsidiaries within the meaning of Section 4001(a)(144001 (a)(14) of ERISA (for purposes of this Section, an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the any Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other agreement, plan, arrangement or policy of the any Company or any of its Subsidiaries or of any of their respective its ERISA Affiliates (whether written or oraloral and whether or not subject to ERISA) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or benefits, retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation appreciation, stock awards, stock based compensation or other forms of incentive compensation or post-retirement termination insurance, compensation or benefits. Except as is disclosed set forth in Section 6.16.1 of the Company Disclosure -------------- LetterSchedule 4.18 hereto, (i) neither the Company, no ------------- Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored)sponsors, or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer multiemployer plan," as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none each of the Plans provides or provided post-retirement medical or health benefitshas been administered and maintained, (v) none and is, in material compliance with, all provisions of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of ERISA, the Code, or an organization described in Sections 501(c)(9the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") or 501(c)(20) of the Code, (vi) neither the Company, any of its Subsidiaries, nor any ERISA Affiliate is or was a party to any collective bargaining agreement, and (vii) neither the Company, any of its Subsidiaries, nor any ERISA Affiliate has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)all other applicable laws. Notwithstanding any statement or indication in this Agreement to the contrary, and except as disclosed in Schedule 4.18 with respect to the Texas ------------- Matt & Rigging Profit Sharing Plan (the "TMR Plan"), there are no Plans (a) as to which the Surviving Corporation any Company or its ERISA Affiliates will be required to make any contributions or with respect to which the Surviving Corporation shall have any obligation or liability whatsoevercontributions, whether on behalf of any of the current employees of the Surviving Corporation any Company, its ERISA Affiliate or on behalf of any other Person, after the Recap Closing, or (b) which the Surviving Corporation will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Companyany Company or any of its ERISA Affiliates. No Company nor any ERISA Affiliate has any formal plan or commitment, whether legally binding or not, to create any additional Plan, or modify or change any existing Plan that would affect any employee or terminated employee of any Company or any ERISA Affiliate, except as set forth in Schedule -------- 4.18 with respect to the TMR Plan. Except as set forth in Schedule 4.18, the ---- ------------- consummation of the transactions contemplated by this Agreement will not (i) entitle any employees of any Company to severance pay, (ii) accelerate the funding, time of payment or vesting or trigger any payment of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of its Subsidiaries the Plans or (iii) result in any breach or violation of, or default under, any of their respective ERISA Affiliatesthe Plans. The Company has made available Companies have delivered to TNF Buyer true and complete copies of: (i) each of the Plans and any related funding and service agreements thereto (including insurance contracts, investment management agreements, subscription and participation agreements and recordkeeping contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (ii) the currently effective Summary Plan Description summary plan description and summary of material modifications and all material employee communications known to the Companies pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iii) the three most recent annual reports for each of the Plans, subject to Section 401(a) of the Code and the most recent annual report for each of the other Plans to the extent each such Plan is subject to such reporting requirements (including all relevant schedules), (iv) the most recently filed PBGC Form 1 (if applicable), ; and (v) the most recent Internal Revenue Service determination letter, if any, letter for each Plan which is intended to constitute a qualified plan under Section 401 of the Code and each amendment to each of the foregoing documentsdocuments and any requests for rulings, and (vi) for each funded Plandeterminations, financial statements consisting of (A) or opinions pending with the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (B) the statement of changes in fund balance and in financial position Internal Revenue Service or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP as of such datesany other governmental agency.

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plansemployee benefit plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which any of the Company, any of its Subsidiaries Subsidiary, or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries Subsidiary within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries Subsidiary or any of their respective ERISA Affiliates makes contributions or is required to make contributions contributions, and (ii) any similar employment, severance or other arrangement or policy of any of the Company any Subsidiary or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for health, life, vision or dental insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, fringe benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 2.14 of the Disclosure Schedule discloses each Plan that the Company Disclosure -------------- Letter, (i) neither the Company, or any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored)sponsors, or to which any such entity makes or is required to make contributions to, any Planscontributions. Except as disclosed on Section 2.13 of the Disclosure Schedule, (iii) none of the Plans is or was a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (ivii) none of the Plans provides or provided post-retirement termination medical or health benefitsbenefits (other than those required by Law or pursuant to individual Severance arrangements of two years or less), (viii) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Code, (viiv) neither the Company, any of its Subsidiaries, Subsidiary nor any ERISA Affiliate is or was a party to any collective bargaining agreement, and (viiv) neither the Company, any of its Subsidiaries, Subsidiary nor any ERISA Affiliate has announced or otherwise made any commitment to create or materially amend any Plan (except with respect to amendments required by law or regulation)Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (a) as to which the Surviving Corporation Parent will be required to make any contributions or with respect to which the Surviving Corporation Parent shall have any material obligation or liability whatsoeverliability, whether on behalf of any of the current employees of the Surviving Corporation Company or any Subsidiary or on behalf of any other Personperson, after the Recap Closing, or (b) which Parent, the Surviving Corporation or any Subsidiary will not be able to terminate prior to or immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no material unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, any of its Subsidiaries Subsidiary or any of their respective ERISA Affiliates. The With respect to each Plan required to be disclosed on Section 2.13 of the Disclosure Schedule, the Company has made available delivered to TNF true and complete Parent copies of: (i) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (ii) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, if any, (iii) the three (3) most recent annual reports for each of the Plans (including all relevant related schedules), (iv) the most recently filed PBGC Form 1 recent Internal Revenue Service determination, opinion, notification or advisory letter (if as applicable), (v) the most recent Service determination letter, if any, for each Plan which is intended to constitute a qualified plan under Section 401 of the Code and each amendment to each of the foregoing documents, and (viv) for each funded unfunded Plan, financial statements statements, if any, consisting of (A) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (B) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP GAAP, consistently applied, as of such dates.

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which the Company, any of its Subsidiaries or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 2.14(a) of the Company Disclosure -------------- LetterSchedule, (i) neither the Company, any of its Subsidiaries Subsidiary nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or paid to or on behalf of any employee payment for the provision or reimbursement of any employee benefit, including, without limitation, health and dental benefits, or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical or health benefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, any Subsidiary nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, any Subsidiary nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (aA) as to which the Surviving Corporation New Focus will be required to make any contributions or with respect to which the Surviving Corporation New Focus shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation Company or any Subsidiary or on behalf of any other Personperson, after the Recap Closing, or (bB) which New Focus, the Surviving Corporation or any Subsidiary will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, any of its Subsidiaries Subsidiary or any of their respective ERISA Affiliates. The Company has made available delivered, as applicable, to TNF New Focus true and complete copies of: (iI) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (iiII) the currently effective Summary Plan Description summary plan description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iiiIII) the three most recent all annual reports for each of the Plans (including all relevant related schedules), (ivIV) the most recently filed PBGC Form 1 (if applicable), (vV) the most recent Internal Revenue Service determination letter, if anyopinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (viVI) for each funded unfunded Plan, financial statements consisting of (Aa) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (Bb) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP GAAP, consistently applied, as of such dates.

Existence of Plans. For purposes Section 4.13 and Section 4.12(a)(viii) of this Agreement, the ------------------ term "Plans" shall mean Company Disclosure Letter lists each Plan (as defined below). None of the Plans (i) all "Employee Benefit Plans" (is or was a “multiemployer plan”, as such term is ----- defined in Section 3(33(37) or 4001(a)(3) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”), of which the Company, any of its Subsidiaries or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 of the Company Disclosure -------------- Letter, (i) neither the Company, any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," as defined in subject to Section 3(37) 412 of the Code or Section 302 or Title IV of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical medical, health or health benefitsother welfare benefits other than as required by applicable law, and (viv) none of the Plans is or was a "“welfare benefit fund," ” as defined in Section 419(e) of the Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Code, (vi) neither and the Company, its Subsidiaries, and ERISA Affiliates do not, and have never been required to, contribute to or provide benefits under any such Plan. In addition, neither (y) the Company nor to the Company’s knowledge any of its Subsidiaries, nor any ERISA Affiliate Affiliates is or was a party to any collective bargaining agreement, and (viiz) neither the Company, Company nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (a) as to which the Surviving Corporation will be required to make any contributions Parent or with respect to which the Surviving Corporation shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation or on behalf of any other Person, after the Recap Closing, or (b) which the Surviving Corporation will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities material Liabilities in accordance with the Company’s normal accounting practices with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, any of its Subsidiaries Subsidiary or any of their respective ERISA Affiliates. The Company has made available to TNF Parent true and complete copies of: (i) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (ii) the currently effective Summary Plan Description summary plan description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iii) the three (3) most recent annual reports of Form 5500 for each of the Plans (including all relevant related schedules), (iv) the most recently filed PBGC Form 1 (if applicable), (v) the most recent Service IRS determination letter, if anyopinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Code and each amendment to each of the foregoing documentsCode, and (viv) for each funded unfunded Plan, financial statements consisting of (A) the consolidated statement of assets and liabilities Liabilities of such Plan as of its most recent valuation date, and (B) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP GAAP, consistently applied, as of such dates. For purposes of this Agreement, “ERISA Affiliate” means any person that, together with the Company or any Subsidiary as of any relevant date was or is required to be treated as a single employer under Code Section 414 or ERISA. For purposes of this Section 4.13, “Plan” means (i) each of the “employee benefit plans” (as such term is defined in Section 3(3) of ERISA) of which any of the Company, any Subsidiary, or any ERISA Affiliate is or ever was a sponsor or participating employer or as to which the Company or any Subsidiary or any of their ERISA Affiliates makes or made contributions or is or was required to make contributions or under which the Company, any Subsidiary or any of their ERISA Affiliates has any obligation or Liability (contingent or otherwise), and (ii) any employment, severance or other agreement, arrangement or policy of any of the Company any Subsidiary or any of their ERISA Affiliates (whether written or oral) providing for health, life, vision or dental insurance coverage (including self-insured arrangements), workers’ compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, fringe benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation, or post-retirement insurance, compensation or benefits.

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which the Company, any of its Subsidiaries or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 2.14(a) of the Company Disclosure -------------- LetterSchedule, (i) neither the Company, Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical or health benefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, Company nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, Company nor any of its Subsidiaries, nor any ERISA Affiliate has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (aA) as to which the Surviving Corporation Broadcom will be required to make any contributions or with respect to which the Surviving Corporation Broadcom shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation Company or any Subsidiary or on behalf of any other Personperson, after the Recap Closing, or (bB) which Broadcom, the Surviving Corporation will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, Company or any of its Subsidiaries or any of their respective ERISA Affiliates. The Company has made available delivered to TNF Broadcom true and complete copies of: (iI) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (iiII) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iiiIII) the three most recent all annual reports for each of the Plans (including all relevant related schedules), (ivIV) the most recently filed PBGC Form 1 (if applicable), (vV) the most recent Internal Revenue Service determination letter, if anyopinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (viVI) for each funded unfunded Plan, financial statements consisting of (Aa) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (Bb) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP GAAP, consistently applied, as of such dates.

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), ) of which the Company, any of its Subsidiaries Mission or any ----- member of the same controlled group of corporations, trades or businesses as the Company or any of its Subsidiaries Mission within the meaning of Section 4001(a)(14) of ERISA (for purposes of this Section, an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company Mission or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries Mission or of any of their respective its ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or benefits, retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 of the Company Disclosure -------------- Letter, "Mission Employee Plan List," (i) neither the Company, Mission nor any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored)sponsors, or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer multiemployer plan," as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none each of the Plans provides or provided post-retirement medical or health benefitsis, (v) none and at all times since its inception has been, in compliance with all provisions of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of ERISA, the Code, or an organization described in Sections 501(c)(9the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") or 501(c)(20) of the Code, (vi) neither the Company, any of its Subsidiaries, nor any ERISA Affiliate is or was a party to any collective bargaining agreement, and (vii) neither the Company, any of its Subsidiaries, nor any ERISA Affiliate has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)all other applicable laws. Notwithstanding any statement or indication in this Agreement to the contrary, and except as otherwise provided for in the letter required pursuant to Article XII of this Agreement, there are no Plans (a) as to which the Surviving Corporation Mission or its ERISA Affiliates will be required to make any contributions or with respect to which the Surviving Corporation shall have any obligation or liability whatsoevercontributions, whether on behalf of any of the current employees of the Surviving Corporation Mission, its ERISA Affiliate or on behalf of any other Personperson, after the Recap Closing, or (b) which the Surviving Corporation will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities that have not been recorded in accordance with GAAP with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, Mission or any of its Subsidiaries or any of their respective ERISA Affiliates. The Company Neither Mission nor any ERISA Affiliate has made available any formal plan or commitment, whether legally binding or not, to TNF create any additional Plan, or modify or change any existing Plan that would affect any employee or terminated employee of Mission or any ERISA Affiliate, except as disclosed on the Mission Employee Plan List. Mission has delivered to CFAC true and complete copies of: (i) each of the Plans and any related funding and service agreements thereto (including insurance contracts, investment managing agreements, subscription and participation agreements and recordkeeping contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (ii) the currently effective Summary Plan Description Description, Summary of Material Modifications and all material employee communications pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iii) the three most recent annual reports for each of the Plans (including all relevant schedules), (iv) the most recently filed PBGC Form 1 (if applicable), and (v) the most recent Internal Revenue Service determination letter, if any, letter for each Plan which is intended to constitute a qualified plan under Section 401 of the Code and each amendment to each of the foregoing documentsdocuments and any requests for rulings, and (vi) for each funded Plandeterminations, financial statements consisting of (A) or opinions pending with the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (B) the statement of changes in fund balance and in financial position Internal Revenue Service or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP as of such datesany other governmental agency.

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which the Company, any of its Subsidiaries or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 2.14(a) of the Company Disclosure -------------- LetterSchedule, (i) neither the Company, any of its Subsidiaries Subsidiary nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical or health benefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, Company nor any of its Subsidiaries, Subsidiaries nor any of their respective ERISA Affiliate Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, Company nor any of its Subsidiaries, Subsidiaries nor any of their respective ERISA Affiliate Affiliates has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (aA) as to which the Surviving Corporation Broadcom will be required to make any contributions or with respect to which the Surviving Corporation Broadcom shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation Company or any Subsidiary or on behalf of any other Personperson, after the Recap Closing, or (bB) which Broadcom, the Surviving Corporation and their respective Subsidiaries will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, Company or any of its Subsidiaries or any of their respective ERISA Affiliates. The Company has made available delivered to TNF Broadcom true and complete copies of: (iI) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (iiII) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iiiIII) the three most recent all annual reports for each of the Plans (including all relevant related schedules), (ivIV) the most recently filed PBGC Form 1 (if applicable), (vV) the most recent Internal Revenue Service determination letter, if anyopinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (viVI) for each funded unfunded Plan, financial statements consisting of (Aa) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (Bb) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP as of such dates.fairly

Existence of Plans. For purposes Section 2.14(a)(i) of this Agreement, the ------------------ term "Company Disclosure Schedule sets forth a true and correct list of the Plans" shall mean . None of the Plans (i) all "Employee Benefit Plans" (is a “multi-employer plan” as such term is ----- defined in Section 3(33(37) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which ERISA and neither the Company, its Subsidiaries, nor any of its Subsidiaries their respective ERISA Affiliates has maintained or contributed to such a multi-employer plan at any ----- member of time in the same controlled group of businesses as past six (6) years with respect to which the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as may reasonably be expected to which --------- the Company or incur any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 of the Company Disclosure -------------- Letter, (i) neither the Company, any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any PlansLiability, (ii) none of the Plans is or was a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "“defined benefit pension plan" ” within the meaning of Section 3(35) of ERISA, and (iviii) none of the Plans provides or provided post-retirement medical or health benefits, except where required by Law, or (viv) none of the Plans is or was a "“welfare benefit fund," ” as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither . Neither the Company, nor any of its Subsidiaries, Subsidiaries nor any of their ERISA Affiliate Affiliates is or was a party to any collective bargaining agreementagreement with respect to which the Company or any Subsidiary of the Company has any Liability, and (vii) neither the Company, nor any of its Subsidiaries, Subsidiaries nor any of their ERISA Affiliate Affiliates has announced or otherwise made any commitment to create or amend any Plan (Plan, except with respect to amendments as required by law applicable Law, to maintain tax-qualified status or regulation). Notwithstanding as would not result in any statement or indication in this Agreement increased cost to the contrary, there Company or any of its Subsidiaries. There are no Plans (aA) as to which Parent or the Surviving Corporation Company or their respective Subsidiaries will be required to make any contributions or with respect to which Parent or the Surviving Corporation Company or their respective Subsidiaries shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation Company, any of its Subsidiaries or on behalf of any other Person, after the Recap Closing, other than as disclosed in Section 2.14(a)(ii) of the Company Disclosure Schedule, or (bB) which that Parent or the Surviving Corporation Company or any of their respective Subsidiaries will not be able to terminate immediately after the Recap Closing in accordance with their terms terms, ERISA and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect subject to the establishment, implementation, operation, administration or termination requirements of any such Plan, or applicable Law. All obligations in respect of each Plan have been properly accrued and reflected in the termination of balance sheet contained in the participation in any such Plan Unaudited 2009 Financial Statements to the extent required by the Company, any of its Subsidiaries or any of their respective ERISA AffiliatesGAAP. The Company has made available to TNF Parent prior to the date hereof true and complete copies of: (iI) each of the Plans and any related funding agreements thereto (including insurance contracts) ), including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (iiII) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, if any, (iiiIII) the three most recent annual reports filed on Form 5500 from the past three years for each of the Plans (including all relevant related schedules), if any, (ivIV) the most recently filed PBGC Form 1 (if applicable), (vV) the most recent Internal Revenue Service determination letter, if anyopinion, notification or advisory letter (as the case may be) for each Plan which that is intended to constitute a qualified plan under Section 401 401(a) of the Code and each amendment to each of the foregoing documentsInternal Revenue Code, and (viVI) for each funded Plan, financial statements consisting of (Athe Company 401(k) plan the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (B) the statement of changes in fund balance and in two years’ financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP as of such datesstatements.

Existence of Plans. For purposes of this Agreement, the term ------------------ term "PlansPLANS" shall mean (i) all "Employee Benefit PlansEMPLOYEE BENEFIT PLANS" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), of which the Company, any of its Subsidiaries Company or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- AffiliateAFFILIATE") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or of any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-self- insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 of the Company Disclosure -------------- Letteron Schedule 4.13, (i) neither the Company, Company ------------- nor any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical or health benefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the CodeInternal Revenue Code of 1986, as amended ("CODE"), or an organization described in Sections 501(c)(9) or 501(c)(20) of the Code, (vi) neither the Company, Company nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, Company nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (a) as to which the Surviving Corporation Parent or Merger Sub will be required to make any contributions or with respect to which the Surviving Corporation Parent or Merger Sub shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation Company or on behalf of any other Person, after the Recap Closing, or (b) which the Surviving Corporation Parent or Merger Sub will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, Company or any of its Subsidiaries or any of their respective ERISA Affiliates. The Company has made available delivered/will deliver within five business days of the date hereof to TNF Parent true and complete copies of: (i) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (ii) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iii) the three most recent annual reports for each of the Plans (including all relevant schedules), (iv) the most recently filed PBGC Form 1 (if applicable), (v) the most recent Internal Revenue Service determination letter, if any, letter for each Plan which is intended to constitute a qualified plan under Section 401 of the Code and each amendment to each of the foregoing documents, and (vi) for each funded Plan, financial statements consisting of (A) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (B) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP as of such dates.

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plans" (Except as such term is ----- defined set forth in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which the Company, any of its Subsidiaries or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 4.14 of the Company Disclosure -------------- Letter, Schedule (i) neither the Company, Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "“multi-employer plan," ”, as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "“defined benefit pension plan" ” within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical or health benefits, (v) none of the Plans is or was a "“welfare benefit fund," ” as defined in Section 419(e) of the Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Code, (vi) neither the Company, Company nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, Company nor any of its Subsidiaries, nor any ERISA Affiliate has announced or otherwise made any commitment to create or amend any Plan Plan, and (except with respect to amendments required viii) none of the Plans is or was adopted or maintained by law the Company or regulation)any ERISA Affiliate for the benefit of individuals who perform services outside the United States. Notwithstanding any statement or indication in this Agreement to the contrary, there are is no Plans Plan (aA) as to which the Surviving Corporation Buyers will be required to make any contributions contribution or with respect to which the Surviving Corporation Buyers shall have any obligation or liability Liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation Company or on behalf of any other Person, after the Recap Closing, or (bB) which the Buyers or the Surviving Corporation Company or any of its Subsidiaries will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities Liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, any of its Subsidiaries Company or any of their respective ERISA Affiliates. The Company has made available delivered to TNF Cimatron true and complete copies of: (iI) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (iiII) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iiiIII) the three most recent all annual reports for each of the Plans (including all relevant related schedules), (ivIV) the most recently filed PBGC Form 1 (if applicable), (vV) the most recent Service IRS determination letter, if anyopinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Code and each amendment to each of the foregoing documents, and (viVI) for each funded unfunded Plan, financial statements consisting of (Ax) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (By) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP GAAP, consistently applied, as of such dates.

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plans" (as such term is ----- defined in Section 3(3) of Neither the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which the Company, Company nor any of its Subsidiaries or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 of the Company Disclosure -------------- Letter, (i) neither the Company, any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical or health benefitsbenefits other than as required by COBRA, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections Section 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, Company nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (aA) as to which the Surviving Corporation will be required to make any contributions or with respect to which the Surviving Corporation shall have any obligation or liability whatsoeverwhatsoever other than any obligation or liability relating to any claim based on events arising on or before the Closing and any administrative expenses associated with terminating or maintaining any such Plan, whether on behalf of any of the current employees of the Surviving Corporation Company or on behalf of any other Personperson, after the Recap Closing, or (bB) which the Surviving Corporation will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, or any of its Subsidiaries or any of their respective ERISA Affiliates. The Company has made available to TNF Broadcom true and complete copies of: (iI) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (iiII) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iiiIII) the three most recent all annual reports for each of the Plans (including all relevant related schedules), (ivIV) the most recently filed PBGC Form 1 (if applicable), (vV) the most recent Internal Revenue Service determination letter, if anyopinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (viVI) for each funded unfunded Plan, financial statements consisting of (Aa) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (Bb) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP GAAP, consistently applied, as of such dates.

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plansemployee benefit plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), ) of which the Company, any of its Subsidiaries HFB or any ----- member of the same controlled group of corporations, trades or businesses as the Company or any of its Subsidiaries HFB within the meaning of Section 4001(a)(144001 (a)(14) of ERISA ERISA, including, but not limited to, Hemet and HFB Subsidiary (for purposes of this Section, an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company HFB or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other agreement, plan, arrangement or policy of the Company or any of its Subsidiaries HFB or of any of their respective its ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or benefits, retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation appreciation, stock awards, stock based com pensation or other forms of incentive compensation or post-retirement termination insurance, compensation or benefits. Except as is disclosed set forth in Section 6.16.1 of the Company Disclosure -------------- Letterlist delivered by HFB and Hemet to TI (the "HFB Employee Plan List"), (i) neither the Company, HFB nor any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored)sponsors, or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer multiemployer plan," as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none each of the Plans provides or provided post-retirement medical or health benefitshas been administered and maintained, (v) none and is, in material compliance with, all provisions of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of ERISA, the Code, or an organization described in Sections 501(c)(9the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") or 501(c)(20) of the Code, (vi) neither the Company, any of its Subsidiaries, nor any ERISA Affiliate is or was a party to any collective bargaining agreement, and (vii) neither the Company, any of its Subsidiaries, nor any ERISA Affiliate has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)all other applicable laws. Notwithstanding any statement or indication in this Agreement to the contrary, and except as disclosed in the HFB Employee Plan List there are no Plans (a) as to which the Surviving Corporation HFB or its ERISA Affiliates will be required to make any contributions or with respect to which the Surviving Corporation shall have any obligation or liability whatsoevercontributions, whether on behalf of any of the current employees of the Surviving Corporation HFB, its ERISA Affiliate or on behalf of any other Personperson, after the Recap Closing, or (b) which the Surviving Corporation will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the CompanyHFB or any of its ERISA Affiliates. Neither HFB nor any ERISA Affiliate has any formal plan or commitment, whether legally binding or not, to create any additional Plan, or modify or change any existing Plan that would affect any employee or terminated employee of HFB or any ERISA Affiliate, except as set forth in the HFB Employee Plan List. Except as set forth in the HFB Employee Plan List, the consummation of the transactions contemplated by this Agreement will not (i) entitle any employees of HFB, Hemet or the HFB Subsidiaries to severance pay, (ii) accelerate the funding, time of payment or vesting or trigger any payment of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of its Subsidiaries the Plans or (iii) result in any breach or violation of, or default under, any of their respective ERISA Affiliatesthe Plans. The Company HFB has made available delivered to TNF TI true and complete copies of: (i) each of the Plans and any related funding and service agreements thereto (including insurance contracts, investment managing agreements, subscription and participation agreements and recordkeeping contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (ii) the currently effective Summary Plan Description summary plan description, summary of material modifications and all material employee communications pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iii) the three most recent annual reports for each of the Plans (including all relevant schedules), (iv) the most recently filed PBGC Form 1 (if applicable), ; and (v) the most recent Internal Revenue Service determination letter, if any, letter for each Plan which is intended to constitute a qualified plan under Section 401 of the Code and each amendment to each of the foregoing documentsdocuments and any requests for rulings, and (vi) for each funded Plandeterminations, financial statements consisting of (A) or opinions pending with the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (B) the statement of changes in fund balance and in financial position Internal Revenue Service or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP as of such datesany other governmental agency.

Existence of Plans. For purposes of this Agreement, Neither the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which the Company, Company nor any of its Subsidiaries or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 of the Company Disclosure -------------- Letter, (i) neither the Company, any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical or health benefitsbenefits other than as required by COBRA, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections Section 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (aA) as to which the Surviving Corporation will be required to make any contributions or with respect to which the Surviving Corporation shall have any obligation or liability whatsoeverwhatsoever other than any obligation or liability relating to any claim based on events arising on or before the Closing and any administrative expenses associated with terminating or maintaining any such Plan, whether on behalf of any of the current employees of the Surviving Corporation Company or on behalf of any other Personperson, after the Recap Closing, or (bB) which the Surviving Corporation will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, or any of its Subsidiaries or any of their respective ERISA Affiliates. The Company has made available to TNF Broadcom true and complete copies of: (iI) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (iiII) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iiiIII) the three most recent all annual reports for each of the Plans (including all relevant related schedules), (ivIV) the most recently filed PBGC Form 1 (if applicable), (vV) the most recent Internal Revenue Service determination letter, if anyopinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (viVI) for each funded unfunded Plan, financial statements consisting of (Aa) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (Bb) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP as of such dates.in

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which the Company, any of its Subsidiaries or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 2.13(a) of the Company Disclosure -------------- LetterSchedule, (i) neither the Company, any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical or health benefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, any of its Subsidiaries, Subsidiaries nor any of their ERISA Affiliate Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, any of its Subsidiaries, Subsidiaries nor any of their ERISA Affiliate Affiliates has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (aA) as to which Parent or the Surviving Corporation will be required to make any contributions or with respect to which Parent or the Surviving Corporation shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation Company, any of its Subsidiaries or on behalf of any other Personperson, after the Recap Closing, or (bB) which Parent or the Surviving Corporation or any Subsidiary of the Company will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, any of its Subsidiaries or any of their respective ERISA Affiliates. The Company has made available delivered to TNF Parent true and complete copies of: (iI) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (iiII) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iiiIII) the three most all recent annual reports for each of the Plans (including all relevant related schedules), (ivIV) the most recently filed PBGC Form 1 (if applicable), (vV) the most recent Internal Revenue Service determination letter, if anyopinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (viVI) for each funded unfunded Plan, financial statements consisting of (Aa) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (Bb) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP GAAP, consistently applied, as of such dates.

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which the Company, any of its Subsidiaries or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in on Section 6.16.1 2.14 of the Company Disclosure -------------- LetterSchedule, (i) neither the Company, any of its Subsidiaries Subsidiary nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical or health benefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Code, (vi) neither the Company, any of its Subsidiaries, Subsidiary nor any of their respective ERISA Affiliate Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, any of its Subsidiaries, Subsidiary nor any of their respective ERISA Affiliate has announced or otherwise made any commitment to create or amend any Plan (Plan, except with respect to amendments as may be required by law or regulation)changes in Law. Notwithstanding any statement or indication in this Agreement to the contrary, other than its obligation to provide required COBRA continuation coverage with respect to the Company's medical plan, there are no Plans (a) as to which the Surviving Corporation Parent will be required to make any contributions or with respect to which the Surviving Corporation Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation Company or any Subsidiary or on behalf of any other Personperson, after the Recap Closing, or (b) which Parent, the Surviving Corporation or any Subsidiary will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, any of its Subsidiaries Subsidiary or any of their respective ERISA Affiliates. The Company has made available delivered to TNF Parent true and complete copies of: (i) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (ii) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iii) the three most recent all annual reports for each of the Plans (including all relevant related schedules), (iv) the most recently filed PBGC Form 1 (if applicable), (v) the most recent Internal Revenue Service determination letter, if anyopinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Code and each amendment to each of the foregoing documents, and (vi) for each funded unfunded Plan, financial statements consisting of (A) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (B) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP GAAP, consistently applied, as of such dates.

Existence of Plans. For purposes of this Agreement, the ------------------ term "PlansPLANS" shall mean (i) all "Employee Benefit PlansEMPLOYEE BENEFIT PLANS" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), of which the Company, any of its Subsidiaries Company or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- AffiliateAFFILIATE") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries or any of their respective ERISA Affiliates makes contributions or is required to make contributions and (ii) any similar employment, severance or other arrangement or policy of the Company or of any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in Section 6.16.1 of the Company Disclosure -------------- Letteron SCHEDULE 4.13, (i) neither the Company, Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iv) none of the Plans provides or provided post-retirement medical or health benefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the CodeInternal Revenue Code of 1986, as amended ("CODE"), or an organization described in Sections 501(c)(9) or 501(c)(20) of the Code, (vi) neither the Company, Company nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, Company nor any of its Subsidiaries, nor any ERISA Affiliate Affiliates has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (a) as to which the Surviving Corporation Parent or Merger Sub will be required to make any contributions or with respect to which the Surviving Corporation Parent or Merger Sub shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation Company or on behalf of any other Person, after the Recap Closing, or (b) which the Surviving Corporation Parent or Merger Sub will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, Company or any of its Subsidiaries or any of their respective ERISA Affiliates. The Company has made available delivered/will deliver within five business days of the date hereof to TNF Parent true and complete copies of: (i) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (ii) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, (iii) the three most recent annual reports for each of the Plans (including all relevant schedules), (iv) the most recently filed PBGC Form 1 (if applicable), (v) the most recent Internal Revenue Service determination letter, if any, letter for each Plan which is intended to constitute a qualified plan under Section 401 of the Code and each amendment to each of the foregoing documents, and (vi) for each funded Plan, financial statements consisting of (A) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (B) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP as of such dates.

Existence of Plans. For purposes of this Agreement, the ------------------ term "Plans" shall mean (i) all "Employee Benefit Plansemployee benefit plans" (as such term is ----- defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of which any of the Company, any of its Subsidiaries Subsidiary, or any ----- member of the same controlled group of businesses as the Company or any of its Subsidiaries Subsidiary within the meaning of Section 4001(a)(14) of ERISA (an "ERISA ----- Affiliate") is or ever was a sponsor or participating employer or as to which --------- the Company or any of its Subsidiaries Subsidiary or any of their respective ERISA Affiliates makes contributions or is required to make contributions contributions, and (ii) any similar employment, severance or other arrangement or policy of any of the Company any Subsidiary or any of its Subsidiaries or of any of their respective ERISA Affiliates (whether written or oral) providing for health, life, vision or dental insurance coverage (including self-insured arrangements), workers' compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, fringe benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits. Except as is disclosed in on Section 6.16.1 2.14 of the Company Disclosure -------------- LetterSchedule, (i) neither the Company, any of its Subsidiaries Subsidiary nor any of their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, and (iviii) none of the Plans provides or provided post-retirement medical or health benefits, (viv) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Code, (viv) neither the Company, any of its Subsidiaries, Subsidiary nor any ERISA Affiliate is or was a party to any collective bargaining agreement, and (viivi) neither the Company, any of its Subsidiaries, Subsidiary nor any ERISA Affiliate has announced or otherwise made any commitment to create or amend any Plan (except with respect to amendments required by law or regulation)Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (a) as to which the Surviving Corporation Parent will be required to make any contributions or with respect to which the Surviving Corporation Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Surviving Corporation Company or any Subsidiary or on behalf of any other Personperson, after the Recap Closing, or (b) which Parent, the Surviving Corporation or any Subsidiary will not be able to terminate immediately after the Recap Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Recap Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, any of its Subsidiaries or any of their respective ERISA Affiliates. The Company has made available to TNF Parent true and complete copies of: (i) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no material defaults thereunder, (ii) the currently effective Summary Plan Description pertaining to each of the Plans required to have a Summary Plan DescriptionPlans, as applicable, (iii) the three (3) most recent annual reports for each of the Plans (including all relevant related schedules), (iv) the most recently filed PBGC Form 1 (if applicable), (v) the most recent Internal Revenue Service determination or opinion letter, if anyas applicable, for each Plan which is intended to constitute a qualified plan under Section 401 of the Code and each amendment to each of the foregoing documents, and (vi) for each funded unfunded Plan, financial statements consisting of (A) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (B) the statement of changes in fund balance and in financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP GAAP, consistently applied, as of such dates.