Common use of Labor and Employee Benefits Clause in Contracts

Labor and Employee Benefits. (a) Such Subject Company and its Subsidiaries (if any) are neither a party to, nor bound by, any Labor Agreement. No such Labor Agreement is being negotiated by or on behalf of such Subject Company or its Subsidiaries (if any). No Business Employees are represented by any labor union, works council, or other labor organization with respect to their employment with the applicable Subject Company or its Subsidiaries (if any). There are not pending nor, to such Seller’s Knowledge, threatened against such Subject Company or its Subsidiaries (if any) any strikes, unfair labor practice charges, material labor grievances, material labor arbitrations, lockouts, slowdowns, picketing, handbilling, material work stoppages, or other material labor disputes, nor have there been any such disputes in the past three (3) years. In the past three (3) years, no labor union, works council, other labor organization, or group of Business Employees has made a demand for recognition or certification to such Subject Company and its Subsidiaries (if any), and there are no representation or certification proceedings presently pending or, to such Seller’s Knowledge, threatened to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To such Seller’s Knowledge, in the past three (3) years there have been no labor organizing activities with respect to any employees of such Subject Company Group. (b) As of the Execution Date, no Black Swan Subject Company (or any Subsidiary thereof) is the W-2 issuing employer of any employees, and as of the Closing Date, none of the Subject Companies is the W-2 issuing employer of any employees. Such Subject Company and its Subsidiaries (if any) are, and for the past three years have been, in compliance in all material respects, with all applicable Laws regarding labor, employment, and employment practices including, without limitation, all Laws respecting terms and conditions of employment, health and safety, wages and hours (including the classification of independent contractors and exempt and non-exempt employees), immigration (including the completion of Forms I-9 for all employees and the proper confirmation of employee visas), employment harassment, discrimination or retaliation, whistleblowing, disability rights or benefits, equal opportunity, plant closures and layoffs (including the WARN Act), employee trainings and notices, workers’ compensation, labor relations, employee leave issues, COVID-19, affirmative action and unemployment insurance. (c) Except as would not result in material liability for such Subject Company and its Subsidiaries (if any), such Subject Company and its Subsidiaries have fully and timely paid all wages, salaries, wage premiums, commissions, bonuses, severance and termination payments, fees and other compensation that have come due and payable to their current or former employees and independent contractors under applicable Law or Contract. (d) In the past three (3) years, such Subject Company and its Subsidiaries (if any) have promptly, thoroughly and impartially investigated all material sexual harassment, discrimination, or retaliation allegations of which any of them is aware. With respect to each such allegation determined by such Subject Company and its Subsidiaries (if any) to have potential merit, such Subject Company and its Subsidiaries (if any) have taken prompt corrective action that is reasonably calculated to prevent further improper action. Such Subject Company and its Subsidiaries (if any) do not reasonably expect any material liabilities with respect to any such allegations. (e) As of the Closing, no member of the Subject Company Group sponsors, maintains or contributes to any Plan. None of the Seller Plans is a Multiemployer Plan or a Pension Plan that is subject to either Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. (f) Except as set forth on Schedule 5.11(f), neither the execution, delivery or performance of this Agreement or the other Transaction Documents nor the consummation of the transaction hereunder (either alone or in connection with any other event) will (i) result in any payment becoming due on or after the Closing Date to any Business Employee under any Seller Plan, (ii) increase any benefits otherwise payable under any Seller Plan, (iii) result in any acceleration of the time of payment or vesting of any benefits under any Seller Plan or (iv) give rise to the payment of any amount that could reasonably be expected to not be deductible by reason of 280G of the Code or subject to an excise tax under Section 4999 of the Code. (g) There does not now exist, nor do any circumstances exist that could reasonably be expected to result in, any Controlled Group Liability of any Seller or any of their respective ERISA Affiliates that would be, or could reasonably be expected to become, a liability of any member of the Subject Company Group or, following the Closing, of Purchaser or any of its Affiliates. (h) Each Seller Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in all respects in operational compliance with, and is in all respects in documentary compliance with, Section 409A of the Code and all Internal Revenue Service guidance promulgated thereunder, and no amount under any such plan, agreement or arrangement is, has been or could reasonably be expected to be subject to any additional Tax, interest or penalties under Section 409A of the Code. (i) No Seller or any Subject Company or its Subsidiaries has any current or contingent obligation to indemnify, gross-up, reimburse or otherwise make whole any Person for any Taxes, including those imposed under Section 4999 or Section 409A of the Code (or any corresponding provisions of state, local or foreign Tax law).

Labor and Employee Benefits. (a) Such Subject No Company and its Subsidiaries (if any) are neither Group Member of the applicable Company Group is a party to, nor to or bound by, by any Labor Agreement. No ; there are no Labor Agreements that pertain to any of the employees of such Company Group Member, nor are any such Labor Agreement is Agreements being negotiated by or on behalf of such Subject Company or its Subsidiaries (if any). No Business Employees Group Member; and no employees of such Company Group Member are represented by any labor union, labor organization, works council, or other labor organization employee representative with respect to their employment with the applicable Subject such Company or its Subsidiaries (if any). There are not pending nor, to such Seller’s Knowledge, threatened against such Subject Company or its Subsidiaries (if any) any strikes, unfair labor practice charges, material labor grievances, material labor arbitrations, lockouts, slowdowns, picketing, handbilling, material work stoppages, or other material labor disputes, nor have there been any such disputes in the past three (3) yearsGroup Member. In the past three (3) years, there has been no labor union, works council, other labor organization, or group of Business Employees has made a demand for recognition or certification to such Subject Company and its Subsidiaries (if any), and there are no representation or certification proceedings presently pending actual or, to such Seller’s Knowledgethe knowledge of the Companies, threatened unfair labor practice charges, material labor grievances, strikes, lockouts, picketing, hand billing, work stoppages or other material labor disputes against or affecting such Company Group Member, and to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To such Seller’s Knowledgeknowledge of the Companies, in the past three (3) years years, there have been no labor organizing activities with respect to any employees of such Subject Company GroupGroup Member. (b) As Except as set forth on Schedule 4.15(b), each Company Group Member of the Execution Date, no Black Swan Subject applicable Company (or any Subsidiary thereof) Group is the W-2 issuing employer of any employees, and as of the Closing Date, none of the Subject Companies is the W-2 issuing employer of any employees. Such Subject Company and its Subsidiaries (if any) are, and for the past last three (3) years have been, has been in compliance in all material respects, respects with all applicable Laws regarding labor, employment, employment and employment practices includingpractices, without limitation, including all Laws respecting terms and conditions of employment, health and safety, wages and hours (including the classification of independent contractors and exempt and non-exempt employees), immigration (including the completion of Forms I-9 for all employees and the proper confirmation of employee visas), employment discrimination, harassment, discrimination or retaliation, whistleblowingrestrictive covenants, pay transparency, disability rights or benefits, equal opportunity, plant closures and layoffs (including the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar Laws (the “WARN Act”), employee trainings and notices), workers’ compensation, labor relations, employee leave issues, employee trainings and notices, COVID-19, affirmative action and unemployment insurance. (c) . Except as set forth on Schedule 4.15(b) or would not result in material liability for such Subject any Company and its Subsidiaries (if any)Group Member of the applicable Company Group, such Subject Company and its Subsidiaries have Group Member has fully and timely paid all wages, salaries, wage premiums, commissions, bonuses, severance and termination payments, fees and other compensation that have come due and payable to their its current or former employees and independent contractors under applicable Law or Contractcontractors. (dc) In Within the past three (3) years, such Subject no Company and its Subsidiaries Group Member of the applicable Company Group has implemented any plant closing or layoff of employees triggering notice obligations under the WARN Act, nor is there presently any outstanding liability under the WARN Act. (if anyd) have promptlyTo the knowledge of the Companies, thoroughly and impartially investigated all no current or former employee or material sexual harassment, discrimination, or retaliation allegations independent contractor (which for the avoidance of which doubt excludes any independent contractors who are providing field services) of them any Company Group Member of the applicable Company Group is aware. With respect to each such allegation determined by such Subject Company and its Subsidiaries (if any) to have potential merit, such Subject Company and its Subsidiaries (if any) have taken prompt corrective action that is reasonably calculated to prevent further improper action. Such Subject Company and its Subsidiaries (if any) do not reasonably expect in material violation of any material liabilities with respect term of any employment agreement, nondisclosure agreement, noncompetition agreement or similar restrictive covenant obligation owed to any such allegationsCompany Group Member. (e) As Each Company Plan has been maintained, funded, administered and operated in material compliance (i) with the terms of the Closingapplicable controlling documents and (ii) with the applicable provisions of ERISA, the Code and all other applicable Laws. (f) No Company Plan is and no member Company Group Member sponsors, maintains, contributes to, has any obligation to contribute to, or otherwise has any liability under or with respect to any: (i) “employee pension benefit plan” as that term is defined in Section 3(2) of ERISA that is or was subject to Section 412 of the Subject Company Group sponsors, maintains Code or contributes to any Plan. None of the Seller Plans is a Multiemployer Plan or a Pension Plan that is subject to either Title IV of ERISA; (ii) a “multiemployer plan” as that term is defined in Section 3(37) of ERISA; or (iii) plan or arrangement that provides post-employment, post-ownership or post-service health or other welfare benefits except as required by Section 302 4980B of the Code (and for which the beneficiary pays the full premium cost of coverage), including, in each case (i) through (iii), as a consequence of at any time having been considered a single employer under Section 414 of the Code or Section 4001(b) of ERISA with any other Person. No Company Group Member has any current or contingent liability or obligation as a consequence of at any time being considered a single employer with any other Person under Section 412 414 of the Code. (fg) Except No Company Group Member is a party to any Contract with any of the Available Employees requiring any Company Group Member to pay any retention bonus or compensation of any nature that would become payable as set forth a result of the transactions contemplated by this Agreement to any Available Employee. (h) Any Company Plan intended to be qualified under Section 401(a) of the Code has received a current, favorable determination letter or equivalent opinion letter from the IRS, or is the subject of a favorable opinion or advisory letter from the IRS on Schedule 5.11(fwhich the Purchaser can rely, and nothing has occurred since the date of such determination or opinion letter that would reasonably be expected to materially adversely affect such qualification. (i) No Company Group Member has incurred (whether or not assessed) any material penalty or material Tax under Section 4980B, 4980D, 4980H, 6721 or 6722 of the Code. There have been no nonexempt “prohibited transactions” (as defined in Section 4975 of the Code or Section 406 of ERISA) or any material breaches of fiduciary duty (as determined under ERISA) with respect to each Company Plan, in each case that would reasonably be expected to result in material liability to the Company Group. No Proceeding or other claim is pending or threatened with respect to any Benefit Plan that is a Company Plan after giving effect to the Pre-Closing Reorganization (other than claims for benefits in the ordinary course of business). (j) No payment or benefit, individually or together with any other payment or benefit that could be received (whether in cash, property or the vesting of property), neither as a result of the execution, execution and delivery or performance of this Agreement or the any other Transaction Documents nor Document to which any Company Group Member is a party or the consummation of the transaction hereunder (transactions contemplated hereby or thereby, either alone or in connection combination with another event, by any current or former employee, officer, director or other event) will (i) result in any payment becoming due on or after the Closing Date to any Business Employee under any Seller Plan, (ii) increase any benefits otherwise payable under any Seller Plan, (iii) result in any acceleration of the time of payment or vesting individual service provider of any benefits under any Seller Plan or (iv) give rise to the payment of any amount that Company Group Member could reasonably be expected to not be deductible by the applicable Company Group Member by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code. (gk) There does not now exist, nor do any circumstances exist that could reasonably be expected to result in, any Controlled Group Liability of any Seller or any of their respective ERISA Affiliates that would be, or could reasonably be expected to become, a liability of any member of the Subject The Company Group or, following the Closing, of Purchaser or any of its Affiliates. (h) Each Seller Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in all respects in operational compliance with, and is in all respects in documentary compliance with, Section 409A of the Code and all Internal Revenue Service guidance promulgated thereunder, and Groups have no amount under any such plan, agreement or arrangement is, has been or could reasonably be expected to be subject to any additional Tax, interest or penalties under Section 409A of the Code. (i) No Seller or any Subject Company or its Subsidiaries has any current or contingent obligation to indemnify, gross-up, reimburse or otherwise make whole any Person for any Taxes, including those imposed under Section 4999 or Section 409A of the Code (or any corresponding provisions of state, local or foreign Tax law).

Labor and Employee Benefits. (a) Such Subject Company and its Subsidiaries (if any) are neither is not a party to, nor to or bound by, by any Labor Agreement. No such ; there are no Labor Agreement is Agreements that pertain to any of the Business Employees in respect of their service to Company, and none are being negotiated by or on behalf of such Subject Company or its Subsidiaries (if any). No negotiated; and no Business Employees are represented by any labor union, labor organization, works council, certified employee representative or other labor organization group of employees with respect to their employment services provided to Company. To Seller’s Knowledge, in the past three (3) years, there have been no labor organizing activities with respect to any current or former Business Employees in respect of their service to the applicable Subject Company or its Subsidiaries Company. In the past three (if any). There are not pending nor3) years, there has been no actual or, to such Seller’s Knowledge, threatened against such Subject Company or its Subsidiaries (if any) any strikes, unfair labor practice charges, material labor grievances, material labor arbitrations, strikes, lockouts, work stoppages, slowdowns, picketing, handbilling, material work stoppages, hand billing or other material labor disputesdisputes against or affecting Company or the Assets. (b) Company is not, nor have there has it been any such disputes in the past three (3) years. In during the past three (3) years, no labor union, works council, other labor organization, or group the W-2 employing entity of Business Employees has made a demand for recognition or certification to such Subject any individual. Company and its Subsidiaries (if any)is not, and there are no representation or certification proceedings presently pending or, to such Seller’s Knowledge, threatened to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To such Seller’s Knowledge, in has never been during the past three (3) years there have been no labor organizing activities with respect years, a party to any employees of such Subject Company Group. (b) As of the Execution Date, no Black Swan Subject Company (Contract with any staffing agency or any Subsidiary thereof) is the W-2 issuing employer of any employees, and natural person individual providing services as of the Closing Date, none of the Subject Companies is the W-2 issuing employer of any employeesan independent contractor. Such Subject Company and its Subsidiaries (if any) are, and for the past three years have been, in compliance in all material respects, with all applicable Laws regarding labor, employment, and employment practices including, without limitation, all Laws respecting terms and conditions of employment, health and safety, wages and hours (including the classification of independent contractors and exempt and non-exempt employees), immigration (including the completion of Forms I-9 for all employees and the proper confirmation of employee visas), employment harassment, discrimination or retaliation, whistleblowing, disability rights or benefits, equal opportunity, plant closures and layoffs (including the WARN Act), employee trainings and notices, workers’ compensation, labor relations, employee leave issues, COVID-19, affirmative action and unemployment insurance. (c) Except as would not result in material liability or obligation for such Subject Company, Company has no liabilities with respect to any current or former Business Employees or any other individuals (including independent contractors, contingent workers, contract workers, leased employees, seasonal employees or temporary employees) that have performed work at or with respect to Company or the Assets during the past three (3) years. (c) Company, and with respect to current and former Business Employees, Seller and its Subsidiaries Affiliates, are and during the past three (if any)3) years have been, such Subject Company in compliance, in all material respects with all applicable Laws respecting labor, employment and employment practices. Except as would not result in material liability or obligation for Company: (i) Seller and its Subsidiaries Affiliates have fully and timely paid all wages, salaries, wage premiums, commissions, bonuses, severance and termination payments, fees and other compensation that have come due and payable to their current and former Business Employees and other individuals (including independent contractors, contingent workers, contract workers, leased employees, seasonal employees or former employees and independent contractors temporary employees) that have performed work at or with respect to Company or the Assets, under applicable Law Laws or Contract. ; and (dii) In each individual (including independent contractor, contingent worker, contract worker or consultant) who has performed work at or with respect to Company or the Assets during the past three (3) yearsyears and is or was classified and treated as an independent contractor, consultant, leased employee or other non-employee service provider, is and has been properly classified and treated as such Subject for all applicable purposes. To Seller’s Knowledge, there are no allegations or complaints related to sexual harassment by or against former or current Business Employees that are material to Company and its Subsidiaries or, if known to the public, would bring Company into material disrepute. (if anyd) The Company does not sponsor, maintain, contribute to, have promptly, thoroughly and impartially investigated all material sexual harassment, discriminationan obligation to contribute to, or retaliation allegations of which otherwise have any of them is aware. With respect to each such allegation determined by such Subject Company and its Subsidiaries (if any) to have potential merit, such Subject Company and its Subsidiaries (if any) have taken prompt corrective action that is reasonably calculated to prevent further improper action. Such Subject Company and its Subsidiaries (if any) do not reasonably expect current or contingent liability or obligation under any material liabilities with respect to any such allegationsPlan. (e) As of the Closing, no member of the Subject Company Group sponsors, maintains or contributes to any Plan. None of the Seller Plans is a Multiemployer Plan or a Pension Plan that is subject to either Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code. (f) Except as set forth on Schedule 5.11(f), neither the execution, delivery or performance of this Agreement or the other Transaction Documents nor the consummation of the transaction hereunder (either alone or in connection with any other event) will (i) result in any payment becoming due on or after the Closing Date to any Business Employee under any Seller Plan, (ii) increase any benefits otherwise payable under any Seller Plan, (iii) result in any acceleration of the time of payment or vesting of any benefits under any Seller Plan or (iv) give rise to the payment of any amount that could reasonably be expected to not be deductible by reason of 280G of the Code or subject to an excise tax under Section 4999 of the Code. (g) There does not now exist, nor do any circumstances exist that could would reasonably be expected to result in, any Controlled Group Liability of any Seller or any of their respective its ERISA Affiliates that would be, or could reasonably be expected to become, a liability of any member of the Subject Company Group or, following the Closing, of Purchaser Buyer or any of its Affiliates. (hf) Each Seller Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code Company has been operated and administered in all respects in operational compliance with, and is in all respects in documentary compliance with, Section 409A of the Code and all Internal Revenue Service guidance promulgated thereunder, and no amount under any such plan, agreement or arrangement is, has been or could reasonably be expected to be subject to any additional Tax, interest or penalties under Section 409A of the Code. (i) No Seller or any Subject Company or its Subsidiaries has any current or contingent obligation to indemnify, gross-up, reimburse or otherwise make whole any Person for any TaxesTaxes or related interest or penalties incurred by such Person, including those imposed under Section 4999 or Section 409A of the Code (or any corresponding provisions of state, local or foreign Tax lawLaw). (g) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, either alone or in combination with another event, could: (i) require a contribution by the Company to any Plan; (ii) result in the forgiveness in whole or in part of any outstanding loans made by the Company to any current or former employee, officer, director, manager or other individual service provider of the Company or its Affiliates (or any dependent or beneficiary thereof); or (iii) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code or in the imposition of an excise Tax under Section 4999 of the Code, after giving effect to any 280G Stockholder Approval and waivers actually attained (as described in Section 9.20 hereof).

Labor and Employee Benefits. (a) Such No Subject Company and or any of its Subsidiaries (if any) are neither is a party to, nor to or bound by, by any Labor Agreement. No , nor is any such Labor Agreement is being negotiated by or on behalf of such any Subject Company or its Subsidiaries (if any)Subsidiaries. No Business Employees are represented by any labor union, works council, or other labor organization with respect to their employment with the applicable Subject Company or its Subsidiaries (if any)Subsidiaries. There are not pending no pending, nor, to such Seller’s Knowledge, threatened against such or affecting any Subject Company or its Subsidiaries (if any) any Subsidiaries, material labor grievances, strikes, unfair labor practice charges, material labor grievances, material labor arbitrations, lockouts, slowdowns, picketing, handbilling, material concerted work stoppages, stoppages or other material labor disputesdisputes with respect to any Business Employees or former employees of any Subject Company or its Subsidiaries, nor have there been any such disputes in the past three (3) years. In the past three (3) years, no labor union, works council, other labor organization, or group of Business Employees employees of any Subject Company or its Subsidiaries has made a demand for recognition or certification to such Subject Company and or its Subsidiaries (if any)Subsidiaries, and there are no representation or certification proceedings presently pending or, to such Seller’s Knowledge, threatened to be brought or filed with the National Labor Relations Board or any other applicable labor relations tribunal or authority. To such Seller’s Knowledge, in the past three (3) years there have been no labor organizing activities with respect to any employees of such Subject Company Groupor its Subsidiaries (including any Business Employee). (b) As of the Execution Date, no Black Swan Subject Company (or any Subsidiary thereof) is the W-2 issuing employer of any employees, and as of the Closing Date, none of the Subject Companies is the W-2 issuing employer of any employees. Such Subject Company and its Subsidiaries (if any) are, and for the past three (3) years have been, in material compliance in all material respects, with all applicable Laws regarding labor, employment, employment and employment practices includingpractices, without limitation, including all Laws respecting terms and conditions of employment, health and safety, wages and hours (including the classification of independent contractors and exempt and non-exempt employees), immigration (including the completion of Forms I-9 for all employees and the proper confirmation of employee visas), employment discrimination, harassment, discrimination or retaliation, whistleblowingrestrictive covenants, pay transparency, disability rights or benefits, equal opportunity, plant closures and layoffs (including the WARN Act), employee trainings and notices, workers’ compensation, labor relations, employee leave issues, employee trainings and notices, COVID-19, affirmative action action, automated employment decision tools and other artificial intelligence and unemployment insurance. (c) Except as would not result in material liability for such Subject Company and its Subsidiaries Subsidiaries: (if any), i) such Subject Company and its Subsidiaries have fully and timely paid all wages, salaries, wage premiums, commissions, bonuses, severance and termination payments, fees and other compensation that have come due and payable to their current or former employees and independent contractors under applicable Law Laws, Contract or Contract. company policy; and (dii) In each individual who is providing or within the past three (3) years, years has provided services to such Subject Company and its Subsidiaries and is or was classified and treated as an independent contractor, consultant, leased employee or other non-employee service provider, is and has been properly classified and treated as such for all applicable purposes. (if anyd) have promptly, thoroughly Each Subject Company and impartially its Subsidiaries has reasonably investigated all material sexual harassment or other unlawful harassment, discrimination, discrimination or retaliation allegations against any Business Employees and any former employees who were employed by such Subject Company or its Subsidiaries that have arisen in the past three (3) years of which any of them is aware. With respect to each such allegation determined by such Subject Company and its Subsidiaries (if any) to have potential with merit, such Subject Company and or its Subsidiaries (if any) have taken prompt corrective action that is reasonably calculated to prevent further improper action. Such Subject Company and its Subsidiaries (if any) do not reasonably expect any material liabilities with respect to any such allegations. (e) As of the ClosingTo such Seller’s Knowledge, no member current or former employee of the any Subject Company Group sponsorsor its Subsidiaries is in any material respect in violation of any term of any employment agreement, maintains nondisclosure agreement, noncompetition agreement or contributes restrictive covenant obligation owed to any Plan. None of the Seller Plans is a Multiemployer Plan such Subject Company or a Pension Plan that is subject to either Title IV of ERISA, Section 302 of ERISA or Section 412 of the Codeits Subsidiaries. (f) Except as set forth on Schedule 5.11(f)) sets forth each material Plan for such Seller’s Subject Company Group. With respect to each such Plan, neither the execution, delivery such Subject Companies or performance of this Agreement or the other Transaction Documents nor the consummation of the transaction hereunder (either alone or in connection with any other event) will their Subsidiaries have provided correct and complete copies of: (i) result in any payment becoming due on or after the Closing Date to any Business Employee under any Seller Plan, Plan documents and all amendments thereto; (ii) increase any benefits otherwise payable under any Seller Plan, the most recent summary plan description and all summaries of material modifications; (iii) result in any acceleration all certificates of the time of payment insurance for related insurance contracts or vesting of any benefits under any Seller Plan or other funding arrangements; (iv) give rise the most recent determination, advisory or opinion letter received from the IRS; and (v) all non-routine correspondence with any Governmental Authority. Each Plan that is intended to be a qualified plan under Section 401(a) of the payment of any amount Code has received a favorable determination letter or opinion letter from the IRS and nothing has occurred that could reasonably be expected to adversely affect the qualification of such Plan. There have been no “prohibited transactions” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA and not be deductible otherwise exempt under Section 408 of ERISA and no material breach of fiduciary duty (as determined under ERISA) with respect to any Plan. Each Plan is and has been established, maintained, funded, operated, and administered in all material respects in accordance with its terms and in compliance in all material respects with all applicable Laws. All contributions, distributions, reimbursements, and premium payments with respect to each Plan have been made in all material respects or properly accrued within the time periods prescribed by reason the terms of 280G each Plan, ERISA, and the Code. Neither the Subject Companies nor any of their Subsidiaries have incurred (whether or not assessed) any material Tax or penalty under Sections 4980B, 4980D, 4980H, 6721 or 6722 of the Code and no circumstances exist that could result in the imposition of any such material Tax or penalty. (g) No Plan is, and neither the Subject Companies nor any of their Subsidiaries sponsor, maintain, contribute to, have any obligation to contribute to, or have any current or contingent liability or obligation under or with respect to: (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is or was subject to Section 412 or 430 of the Code or subject to an excise tax under Title IV of ERISA; (ii) a “multiemployer plan”, as that term is defined in Section 4999 3(37) of ERISA; (iii) a “multiple employer plan” within the meaning of Section 210 of ERISA or Section 413(c) of the Code. ; (giv) There does not now exista “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA; or (v) a plan or arrangement that provides post-employment, nor do any circumstances exist that could reasonably be expected to result in, any Controlled Group Liability of any Seller or any of their respective ERISA Affiliates that would bepost-ownership, or could reasonably be expected to become, a liability of any member post-service health or other welfare benefits except as required by Section 4980B of the Subject Company Group or, following Code (and for which the Closing, beneficiary pays the full premium cost of Purchaser or any of its Affiliatescoverage). (h) Each Seller Plan that constitutes in Neither the Subject Companies nor any part of their Subsidiaries have any current or contingent material liability or obligation as a “nonqualified deferred compensation plan” (as defined consequence of at any time being considered a single employer with any other Person under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in all respects in operational compliance with, and is in all respects in documentary compliance with, Section 409A of the Code and all Internal Revenue Service guidance promulgated thereunder, and no amount under any such plan, agreement or arrangement is, has been or could reasonably be expected to be subject to any additional Tax, interest or penalties under Section 409A 414 of the Code. (i) Neither the Subject Companies nor any of their Subsidiaries have any current or contingent liability or obligation as a consequence of at any time being considered a single employer with any other Person under Section 414 of the Code. Except as expressly contemplated by the terms of this Agreement or set forth in Schedule 5.11(i), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby or thereby, either alone or in combination with another event, could: (i) result in any payment of compensation or benefits (whether in cash, property or the vesting of property) becoming due to any Business Employee; (ii) materially increase any amount of compensation or benefits otherwise due or payable to any Business Employee; (iii) result in the acceleration of the funding or time of payment or vesting of any compensation, equity award or other benefits; or (iv) result in the forgiveness of any Business Employee loan. (j) There is no material matter, Action or claim pending or threatened (other than routine claims for benefits) with respect to any of the Plans. (k) No Seller or any Subject Company or its Subsidiaries has any current or contingent obligation to indemnify, gross-up, reimburse or otherwise make whole any Person for any Taxes, including those imposed under Section 4999 or Section 409A of the Code (or any corresponding provisions of state, local or foreign Tax law). (l) Each Plan that constitutes in any part a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in operational compliance with, and is in documentary compliance with, Section 409A of the Code and all IRS guidance promulgated thereunder, such that no amount under any such plan, agreement or arrangement is, has been or could reasonably be expected to be subject to any material additional Tax, interest or penalties under Section 409A of the Code. (m) Except to the extent set forth in Section 11.9 or on Schedule 5.11(m) and after giving effect to any 280G Stockholder Approval and waivers actually attained (as described in Section 11.9 hereof), no payment or benefit, individually or together with any other payment or benefit, that could be received (whether in cash, property or the vesting of property), as a result of the consummation of the transactions contemplated hereby, either alone or in combination with another event, by any current or former Business Employee, officer, director or other individual service provider of the Subject Company Groups could not be deductible by reason of Section 280G of the Code. (n) Notwithstanding any other provision in this Agreement, the representations and warranties in this Section 5.11, together with the representations and warranties in Section 5.8, are the only representations and warranties of any Seller or such Subject Company in this Agreement with respect to labor, employment and employee benefit matters.