Common use of Pension and Other Employee Plans and Agreements Clause in Contracts

Pension and Other Employee Plans and Agreements. (a) Section 4.19 of the Disclosure Schedule sets forth, as of the date of this Agreement, all of the pension, profit sharing, stock option, stock purchase, stock bonus, employee stock ownership, incentive, bonus, life, health, disability or accident plans, deferred compensation plans, and other employee compensation or benefit plans, agreements, practices, policies, customs, contracts, arrangements or commitments, including, without limitation, changes in control or severance agreements, holiday, vacation or other similar plans, programs or arrangements, employee benefit plans (within the meaning of section 3(3) of ERISA), and labor union agreements under or with respect to which the Parent or any Person ("ERISA Affiliate") who would be treated as being a "single employer" with the Parent under section 414 of the Internal Revenue Code of 1986, as amended (the "Code"), has any liability or obligation, whether current, contingent, secondary or otherwise (collectively, the "Plans" and individually, a "Plan"), and the Parent has furnished to the Company complete copies of all of the foregoing as amended and in effect on the date hereof, including, where applicable, any trust agreements, insurance contracts or other funding mediums related to any Plan and Summary Plan Descriptions. The Parent has heretofore delivered to the Company the most recent liability valuation report with respect to each Plan for which a report or estimate has been prepared, the most recent assets valuation report provided to the Parent with respect to each Plan for which such report must be filed, and the most recent favorable IRS determination letter received with respect to each Plan that is intended to be qualified under section 401(a) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code. Section 4.19 of the Disclosure Schedule also sets forth any other plans or arrangements which would be required to be listed pursuant to the preceding provisions of this section but for the fact that they were terminated within three years of the date of this Agreement (collectively, "Terminated Plan"). (b) With respect to each Plan and each Terminated Plan, the Parent and its ERISA Affiliates have complied in all material respects with, and each Plan and each Terminated Plan conforms in all material respects to and has from its inception been operated in all material respects with, all applicable laws and regulations, including but not limited to ERISA and the Code, and each Plan and each Terminated Plan has been administered in all material respects in accordance with its terms. Each Plan and each Terminated Plan intended to be qualified under section 401(a) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code is, or with respect to a Terminated Plan was at the time it terminated, and for each prior year for which any applicable statute of limitations has not expired, was, qualified or exempt, as the case may be, and each such Plan and Terminated Plan is (or was) a single plan, as defined in section 414(1) of the Code and the regulations thereunder, in which the Parent is the sole employer. Neither the Parent nor any ERISA Affiliate has ever had an obligation or liability, to or with respect to, a multiemployer plan, as defined in section 4001(a)(3) of ERISA. Neither the Parent nor any ERISA Affiliate has any commitment and has not taken any action to adopt or establish any additional Plans or to increase the benefits under any Plan; no event or condition has occurred or exists with respect to any Plan or Terminated Plan, whether or not terminated prior to the date of this Agreement and whether or not maintained or contributed to by the Parent or any ERISA Affiliate, which individually or collectively could result in a material liability to the Parent or any ERISA Affiliate; all contributions required to any Plan and each Terminated Plan and all premiums for insurance coverage for each fiscal year of each Plan and each Terminated Plan ended before the date of this Agreement and for any portion of a fiscal year ending on the Closing Date have been timely paid and payments to be made but not yet due properly accrued and recorded in the Year End Financial Statements and 2000 Financial Statements through their relevant dates; no Plan or Terminated Plan has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived; there is no pending or, to the best knowledge of the Parent, threatened or anticipated litigation, arbitration, proceeding, claim (other than an undisputed claim for payment of benefits in accordance with the terms thereof or a pending or final qualified domestic relations order), demand, grievance, or allegation of unfair labor practice (or any basis therefor) involving any of the Plans or Terminated Plans or any investigation, proceeding, administrative review or other administrative agency process which could result in imposition on the Parent or any ERISA Affiliate of any penalty, assessment or liability in connection with any of the Plans or Terminated Plans, individually or collectively; no Plan or Terminated Plan has engaged or is about to engage in a prohibited transaction as defined in section 406 of ERISA or section 4975 of the Code; and no "reportable event," as defined in section 4043 of ERISA, has occurred or is about to incur that could result in a material liability to the Parent or any ERISA Affiliate. (c) No Plan provides (or has any commitment to provide) health benefits with respect to any current or former employees or independent contractors (or beneficiary thereof) of the Parent or any ERISA Affiliate beyond their retirement or other termination of service (other than coverage mandated by COBRA). Each Plan can be unilaterally terminated at any time by the Parent without material liability.

Pension and Other Employee Plans and Agreements. (a) Section 4.19 3.17 of the Disclosure Schedule sets forth, as of the date of this Agreement, all of the pension, profit sharing, stock option, stock purchase, stock bonus, employee stock ownership, incentive, bonus, life, health, disability or accident plans, deferred compensation plans, and other employee compensation or benefit plans, agreements, practices, policies, customs, contracts, arrangements or commitments, including, without limitation, changes in control or severance agreements, holiday, vacation or other similar plans, programs or arrangements, employee benefit plans (within the meaning of section 3(3) of ERISA), and labor union agreements under or with respect to which the Parent Company or any Person ("ERISA Affiliate") who would be treated as being a "single employer" with the Parent Company under section 414 of the Internal Revenue Code of 1986, as amended (the "Code"), has any liability or obligation, whether current, contingent, secondary or otherwise (collectively, the "Plans" and individually, a "Plan"), and the Parent Company has furnished to the Company Acquiror and Parent complete copies of all of the foregoing as amended and in effect on the date hereof, including, where applicable, any trust agreements, insurance contracts or other funding mediums related to any Plan and Summary Plan Descriptions. The Parent Company has heretofore delivered to the Company Acquiror and Parent the most recent liability valuation report with respect to each Plan for which a report or estimate has been prepared, the most recent assets valuation report provided to the Parent Company with respect to each Plan for which such report must be filed, and the most recent favorable IRS determination letter received with respect to each Plan that is intended to be qualified under section 401(a) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code. Section 4.19 3.17 of the Disclosure Schedule also sets forth any other plans or arrangements which would be required to be listed pursuant to the preceding provisions of this section but for the fact that they were terminated within three years of the date of this Agreement (collectively, "Terminated Plan"). (b) With respect to each Plan and each Terminated Plan, the Parent Company and its ERISA Affiliates have complied in all material respects with, and each Plan and each Terminated Plan conforms in all material respects to and has from its inception been operated in all material respects with, all applicable laws and regulations, including but not limited to ERISA and the Code, and each Plan and each Terminated Plan has been administered in all material respects in accordance with its terms. Each Plan and each Terminated Plan intended to be qualified under section 401(a) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code is, or with respect to a Terminated Plan was at the time it terminated, and for each prior year for which any applicable statute of limitations has not expired, was, qualified or exempt, as the case may be, and each such Plan and Terminated Plan is (or was) a single plan, as defined in section 414(1) of the Code and the regulations thereunder, in which the Parent is the sole employer. Neither the Parent nor any ERISA Affiliate has ever had an obligation or liability, to or with respect to, a multiemployer plan, as defined in section 4001(a)(3) of ERISA. Neither the Parent nor any ERISA Affiliate has any commitment and has not taken any action to adopt or establish any additional Plans or to increase the benefits under any Plan; no event or condition has occurred or exists with respect to any Plan or Terminated Plan, whether or not terminated prior to the date of this Agreement and whether or not maintained or contributed to by the Parent or any ERISA Affiliate, which individually or collectively could result in a material liability to the Parent or any ERISA Affiliate; all contributions required to any Plan and each Terminated Plan and all premiums for insurance coverage for each fiscal year of each Plan and each Terminated Plan ended before the date of this Agreement and for any portion of a fiscal year ending on the Closing Date have been timely paid and payments to be made but not yet due properly accrued and recorded in the Year End Financial Statements and 2000 Financial Statements through their relevant dates; no Plan or Terminated Plan has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived; there is no pending or, to the best knowledge of the Parent, threatened or anticipated litigation, arbitration, proceeding, claim (other than an undisputed claim for payment of benefits in accordance with the terms thereof or a pending or final qualified domestic relations order), demand, grievance, or allegation of unfair labor practice (or any basis therefor) involving any of the Plans or Terminated Plans or any investigation, proceeding, administrative review or other administrative agency process which could result in imposition on the Parent or any ERISA Affiliate of any penalty, assessment or liability in connection with any of the Plans or Terminated Plans, individually or collectively; no Plan or Terminated Plan has engaged or is about to engage in a prohibited transaction as defined in section 406 of ERISA or section 4975 of the Code; and no "reportable event," as defined in section 4043 of ERISA, has occurred or is about to incur that could result in a material liability to the Parent or any ERISA Affiliate. (c) No Plan provides (or has any commitment to provide) health benefits with respect to any current or former employees or independent contractors (or beneficiary thereof) of the Parent or any ERISA Affiliate beyond their retirement or other termination of service (other than coverage mandated by COBRA). Each Plan can be unilaterally terminated at any time by the Parent without material liability.a

Pension and Other Employee Plans and Agreements. (a) Section 4.19 2.08 of the Amax Disclosure Schedule Letter sets forth, as of the date of this Agreement, forth all of the pension, profit sharing, stock option, stock purchase, stock bonus, employee stock ownership, incentive, bonus, life, health, disability Employee Plans maintained or accident plans, deferred compensation plans, and other employee compensation or benefit plans, agreements, practices, policies, customs, contracts, arrangements or commitments, including, without limitation, changes in control or severance agreements, holiday, vacation or other similar plans, programs or arrangements, employee benefit plans (within the meaning of section 3(3) of ERISA), and labor union agreements under or with respect contributed to which the Parent or any Person by each Amax Group Member ("ERISA Affiliate") who would be treated as being a "single employer" with the Parent under section 414 of the Internal Revenue Code of 1986, as amended (the "Code"), has any liability or obligation, whether current, contingent, secondary or otherwise (collectively, the "Plans" and individually, a "Amax Group Employee Plan"), and the Parent Amax has furnished or made available or will furnish and make available to the Company Kinross and Merger Corp. true and complete copies of all of the foregoing such Amax Group Employee Plans as amended and in effect on the date hereof, including, where applicable, any hereof with copies of all related trust agreements, annuity contracts, insurance contracts or other funding mediums related to any Plan and Summary Plan Descriptions. The Parent has heretofore delivered to instruments, actuarial reports (for the Company past three years), financial statements (for the most recent liability valuation report with respect to each Plan for which a report or estimate has been prepared, the most recent assets valuation report provided to the Parent with respect to each Plan for which such report must be filedpast three years), and the most recent favorable IRS determination letter received with respect to each Plan that is intended to be qualified under section 401(a) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code. Section 4.19 of the Disclosure Schedule also sets forth any other plans or arrangements which would be required to be listed pursuant to the preceding provisions of this section but for the fact that they were terminated within three years of the date of this Agreement (collectivelyplan summaries, "Terminated Plan")booklets and personnel manuals. (b) With respect To the knowledge of Amax, except to the extent any of the following would, individually or in the aggregate, be reasonably likely to have a Material Adverse Effect on the Amax Group: (i) the execution and delivery of this Agreement by Amax and the consummation of the transactions contemplated hereby do not constitute and will not result in any "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Tax Code; (ii) each Amax Group Employee Plan is duly established and, where applicable, qualified in accordance with all applicable Laws and no fact or circumstance, where applicable, exists which is likely to adversely affect the qualified status of any Employee Plan which is permitted or required to be qualified; (iii) each Amax Group Employee Plan and each Terminated Planany related trust or other funding agreements are currently, and have been in the Parent and its ERISA Affiliates have complied past, in compliance in all material respects withwith the requirements of applicable Laws and applicable collective bargaining agreements as to the form, operation, and administration of such plans; (iv) all returns, reports, notices, and applications relating to each Amax Group Employee Plan and each Terminated Plan conforms required by any Governmental agency have been in all material respects timely filed; (v) all contributions or premiums required to be made on or before the date hereof to or in respect of each Amax Group Employee Plan under the terms of such plan, ERISA, the Tax Code or other applicable Law and has from its inception applicable collective bargaining agreements have been operated in all material respects withtimely made and no Taxes, all applicable laws and regulations, including but not limited to ERISA and the Code, and each Plan and each Terminated Plan has been administered penalties or fees are owing or payable under or in all material respects in accordance with its terms. Each Plan and each Terminated Plan intended to be qualified under section 401(arespect of any such plan; (vi) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code is, or with respect to a Terminated Plan was at the time it terminated, and for each prior year for which any applicable statute of limitations has not expired, was, qualified or exempt, as the case may be, and each such Plan and Terminated Plan is (or was) a single plan, as defined in section 414(1) of the Code and the regulations thereunder, in which the Parent is the sole employer. Neither the Parent nor any ERISA Affiliate has ever had an obligation or liability, to or with respect to, a multiemployer plan, as defined in section 4001(a)(3) of ERISA. Neither the Parent nor any ERISA Affiliate has any commitment and has not taken any action to adopt or establish any additional Plans or to increase the benefits under any Plan; no event or condition has occurred or exists with respect to any Plan or Terminated Plan, whether or not terminated prior to the date of this Agreement and whether or not maintained or contributed to by the Parent or any ERISA Affiliate, which individually or collectively could result in a material liability to the Parent or any ERISA Affiliate; all contributions required to any Plan and each Terminated Plan and all premiums for insurance coverage for each fiscal year of each Plan and each Terminated Plan ended before the date of this Agreement and for any portion of a fiscal year ending on the Closing Date have been timely paid and payments to be made but not yet due properly accrued and recorded in the Year End Financial Statements and 2000 Financial Statements through their relevant dates; no Plan or Terminated Plan has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived; there is no pending or, to the best knowledge of the Parent, threatened or anticipated litigation, arbitration, proceeding, claim (other than an undisputed claim for payment of benefits in accordance with the terms thereof or a pending or final qualified domestic relations order), demand, grievance, or allegation of unfair labor practice (or any basis therefor) involving any of the Plans or Terminated Plans or any investigation, proceeding, administrative review or other administrative agency process which could result in imposition on the Parent Amax Group Member or any ERISA Affiliate of any penalty, assessment or liability such Amax Group Member has incurred any Liability (except for premiums) to the Pension Benefit Guaranty Corporation which has not been discharged and will not incur any such Liability as a result of the Merger; (vii) there exists no Liability of the Amax Group in connection with any former Employee Plan of the Plans Amax Group or Terminated Plans, individually or collectively; no former Amax ERISA Affiliate Plan that has terminated and all procedures for termination of each such former plans have been properly followed in accordance with the terms of such former Amax Group Employee Plan or Terminated any former Amax ERISA Affiliate Plan and applicable Law; (viii) except as described in Section 2.08(b) of the Amax Disclosure Letter, no event has engaged occurred respecting any of the Amax Group Employee Plans which would entitle the Pension Benefit Guaranty Corporation to wind-up or terminate any such Amax Group Employee Plan, in whole or in part; (ix) there are no merger or asset transfer applications pending with any Governmental agency with respect to any Amax Group Employee Plan; (x) none of the Amax Group Employee Plans requires or permits a retroactive increase in premiums or payments and no improvements to any such plan have been promised to any person; (xi) none of the Amax Group Employee Plans is about to engage in a prohibited transaction "multiemployer plan" (as such term is defined in section 406 of ERISA or section 4975 of the Code; and no "reportable event," as defined in section 4043 Section 3(37) of ERISA, has occurred or is about to incur that could result in a material liability to the Parent or any ERISA Affiliate.); (c) No Plan provides Except as set forth in Section 2.08(b) of the Amax Disclosure Letter, neither the execution of this Agreement nor any agreement referred to or contemplated herein, nor the consummation of the Merger or the other transactions contemplated by this Agreement, will: (A) result in any payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due under any Amax Group Employee Plan; (B) increase any benefits otherwise payable under any Amax Group Employee Plan; or (C) result in the acceleration of the time of payment or vesting of any such benefits. (d) The most recent actuarial valuation reports prepared in connection with each of the Amax Group Employee Plans in respect of which an actuarial valuation report is required to be prepared have been provided to Kinross. The information provided by Amax Group Members to the author of each such report for the purpose of assisting the author in preparing each such actuarial valuation report was, at the time it was so provided, and remains, true, accurate and complete in all material respects, and each such actuarial valuation report is in final form and remains unamended. There has been no material adverse change to the funded status of any commitment of the foregoing Amax Group Employee Plans since the date of the foregoing actuarial valuation reports which would increase the annual funding liability for such plan by more than $100,000. (e) Except to provide) health benefits the extent any of the following would, individually or in the aggregate, not be reasonably likely to have a Material Adverse Effect on the Amax Group, there are no actions, suits, claims or proceedings, whether in equity or at law, or Governmental examinations or investigations pending or, to the knowledge of Amax or the Significant Shareholder, threatened against or with respect to any current Amax Group Employee Plan or former employees or independent contractors any assets of any such Amax Group Employee Plan. (or beneficiary thereoff) Each Foreign Plan of the Parent or Amax Group has been maintained in compliance with its material terms and with the requirements of any ERISA Affiliate beyond their retirement or other and all applicable Law and has been maintained, where required, in good standing with applicable regulatory authorities; no Amax Group Member has incurred any obligations which remain unpaid in connection with the termination of service or withdrawal from any Foreign Plan of the Amax Group; the present value of the accrued benefit liabilities (other than coverage mandated by COBRA). Each whether or not vested) under each Foreign Plan can of the Amax Group that is a pension or retirement plan, determined as of the end of the most recently ended fiscal year of the applicable Amax Group Member on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Plan of the Amax Group allocable to such benefit liabilities; except in any such case where the failure to be unilaterally terminated at any time by so maintained, or the Parent without material liabilityincurring of such obligation or the amount of such excess accrued benefit liabilities would not, individually or in the aggregate, be reasonably likely to: (x) have a Material Adverse Effect on Amax; or (y) materially prejudice the ability of Amax to perform its obligations under this Agreement.

Pension and Other Employee Plans and Agreements. (a) Section 4.19 3.17 of the Disclosure Schedule sets forth, as of the date of this Agreement, all of the pension, profit sharing, stock option, stock purchase, stock bonus, employee stock ownership, incentive, bonus, life, health, disability or accident plans, deferred compensation plans, and other employee compensation or benefit plans, agreements, practices, policies, customs, contracts, arrangements or commitments, including, without limitation, changes in control or severance agreements, holiday, vacation or other similar plans, programs or arrangements, employee benefit plans (within the meaning of section 3(3) of ERISA), and labor union agreements under or with respect to which the Parent Company or any Person ("ERISA AffiliateAFFILIATE") who would be treated as being a "single employer" with the Parent Company under section 414 of the Internal Revenue Code of 1986, as amended (the "CodeCODE"), has any liability or obligation, whether current, contingent, secondary or otherwise (collectively, the "PlansPLANS" and individually, a "PlanPLAN"), and the Parent Company has furnished to the Company MSSC Texas and Marketing Specialists complete copies of all of the foregoing as amended and in effect on the date hereof, including, where applicable, any trust agreements, insurance contracts or other funding mediums related to any Plan and Summary Plan Descriptions. The Parent Company has heretofore delivered to the Company MSSC Texas and Marketing Specialists the most recent liability valuation report with respect to each Plan for which a report or estimate has been prepared, the most recent assets valuation report provided to the Parent Company with respect to each Plan for which such report must be filed, and the most recent favorable IRS determination letter received with respect to each Plan that is intended to be qualified under section 401(a) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code. Section 4.19 3.17 of the Disclosure Schedule also sets forth any other plans or arrangements which would be required to be listed pursuant to the preceding provisions of this section but for the fact that they were terminated within three years of the date of this Agreement (collectively, "Terminated PlanTERMINATED PLAN"). (b) With respect to each Plan and each Terminated Plan, the Parent Company and its ERISA Affiliates have complied in all material respects with, and each Plan and each Terminated Plan conforms in all material respects to and has from its inception been operated in all material respects with, all applicable laws and regulations, including but not limited to ERISA and the Code, and each Plan and each Terminated Plan has been administered in all material respects in accordance with its terms. Each Plan and each Terminated Plan intended to be qualified under section 401(a) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code is, or with respect to a Terminated Plan was at the time it terminated, and for each prior year for which any applicable statute of limitations has not expired, was, qualified or exempt, as the case may be, and each such Plan and Terminated Plan is (or was) a single plan, as defined in section 414(1) of the Code and the regulations thereunder, in which the Parent is the sole employer. Neither the Parent nor any ERISA Affiliate has ever had an obligation or liability, to or with respect to, a multiemployer plan, as defined in section 4001(a)(3) of ERISA. Neither the Parent nor any ERISA Affiliate has any commitment and has not taken any action to adopt or establish any additional Plans or to increase the benefits under any Plan; no event or condition has occurred or exists with respect to any Plan or Terminated Plan, whether or not terminated prior to the date of this Agreement and whether or not maintained or contributed to by the Parent or any ERISA Affiliate, which individually or collectively could result in a material liability to the Parent or any ERISA Affiliate; all contributions required to any Plan and each Terminated Plan and all premiums for insurance coverage for each fiscal year of each Plan and each Terminated Plan ended before the date of this Agreement and for any portion of a fiscal year ending on the Closing Date have been timely paid and payments to be made but not yet due properly accrued and recorded in the Year End Financial Statements and 2000 Financial Statements through their relevant dates; no Plan or Terminated Plan has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived; there is no pending or, to the best knowledge of the Parent, threatened or anticipated litigation, arbitration, proceeding, claim (other than an undisputed claim for payment of benefits in accordance with the terms thereof or a pending or final qualified domestic relations order), demand, grievance, or allegation of unfair labor practice (or any basis therefor) involving any of the Plans or Terminated Plans or any investigation, proceeding, administrative review or other administrative agency process which could result in imposition on the Parent or any ERISA Affiliate of any penalty, assessment or liability in connection with any of the Plans or Terminated Plans, individually or collectively; no Plan or Terminated Plan has engaged or is about to engage in a prohibited transaction as defined in section 406 of ERISA or section 4975 of the Code; and no "reportable event," as defined in section 4043 of ERISA, has occurred or is about to incur that could result in a material liability to the Parent or any ERISA Affiliate.Terminated (c) No Plan provides (or has any commitment to provide) health benefits with respect to any current or former employees or independent contractors (or beneficiary thereof) of the Parent Company or any ERISA Affiliate beyond their retirement or other termination of service (other than coverage mandated by COBRA). Each Plan can be unilaterally terminated at any time by the Parent Company without material liability.

Pension and Other Employee Plans and Agreements. (a) Section 4.19 3.17 of the Disclosure Schedule sets forth, as of the date of this Agreement, all of the pension, profit sharing, stock option, stock purchase, stock bonus, employee stock ownership, incentive, bonus, life, health, disability or accident plans, deferred compensation plans, and other employee compensation or benefit plans, agreements, practices, policies, customs, contracts, arrangements or commitments, including, without limitation, changes in control or severance agreements, holiday, vacation or other similar plans, programs or arrangements, employee benefit plans (within the meaning of section 3(3) of ERISA), and labor union agreements under or with respect to which the Parent Company or any Person ("ERISA Affiliate") who would be treated as being a "single employer" with the Parent Company under section 414 of the Internal Revenue Code of 1986, as amended (the "Code"), has any liability or obligation, whether current, contingent, secondary or otherwise (collectively, the "Plans" and individually, a "Plan"), and the Parent Company has furnished to the Company Acquiror and Parent complete copies of all of the foregoing as amended and in effect on the date hereof, including, where applicable, any trust agreements, insurance contracts or other funding mediums related to any Plan and Summary Plan Descriptions. The Parent Company has heretofore delivered to the Company Acquiror and Parent the most recent liability valuation report with respect to each Plan for which a report or estimate has been prepared, the most recent assets valuation report provided to the Parent Company with respect to each Plan for which such report must be filed, and the most recent favorable IRS determination letter received with respect to each Plan that is intended to be qualified under section 401(a) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code. Section 4.19 3.17 of the Disclosure Schedule also sets forth any other plans or arrangements which would be required to be listed pursuant to the preceding provisions of this section but for the fact that they were terminated within three years of the date of this Agreement (collectively, "Terminated Plan"). (b) With respect to each Plan and each Terminated Plan, the Parent Company and its ERISA Affiliates have complied in all material respects with, and each Plan and each Terminated Plan conforms in all material respects to and has from its inception been operated in all material respects with, all applicable laws and regulations, including but not limited to ERISA and the Code, and each Plan and each Terminated Plan has been administered in all material respects in accordance with its terms. Each Plan and each Terminated Plan intended to be qualified under section 401(a) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code is, or with respect to a Terminated Plan was at the time it terminated, and for each prior year for which any applicable statute of limitations has not expired, was, qualified or exempt, as the case may be, and each such Plan and Terminated Plan is (or was) a single plan, as defined in section 414(1) of the Code and the regulations thereunder, in which the Parent Company is the sole employer. Neither the Parent Company nor any ERISA Affiliate has ever had an obligation or liability, to or with respect to, a multiemployer plan, as defined in section 4001(a)(3) of ERISA. Neither the Parent Company nor any ERISA Affiliate has any commitment and has not taken any action to adopt or establish any additional Plans or to increase the benefits under any Plan; no event or condition has occurred or exists with respect to any Plan or Terminated Plan, whether or not terminated prior to the date of this Agreement and whether or not maintained or contributed to by the Parent Company or any ERISA Affiliate, which individually or collectively could result in a material liability to the Parent Company or any ERISA Affiliate; all contributions required to any Plan and each Terminated Plan and all premiums for insurance coverage for each fiscal year of each Plan and each Terminated Plan ended before the date of this Agreement and for any portion of a fiscal year ending on the Closing Date have been timely paid and payments to be made but not yet due properly accrued and recorded in the Year End Financial Statements and 2000 2002 Company Financial Statements through their relevant dates; no Plan or Terminated Plan has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived; there is no pending or, to the best knowledge of the ParentCompany, threatened or anticipated litigation, arbitration, proceeding, claim (other than an undisputed claim for payment of benefits in accordance with the terms thereof or a pending or final qualified domestic relations order), demand, grievance, or allegation of unfair labor practice (or any basis therefor) involving any of the Plans or Terminated Plans or any investigation, proceeding, administrative review or other administrative agency process which could result in imposition on the Parent Company or any ERISA Affiliate of any penalty, assessment or liability in connection with any of the Plans or Terminated Plans, individually or collectively; no Plan or Terminated Plan has engaged or is about to engage in a prohibited transaction as defined in section 406 of ERISA or section 4975 of the Code; and no "reportable event," as defined in section 4043 of ERISA, has occurred or is about to incur that could result in a material liability to the Parent Company or any ERISA Affiliate. (c) No Plan provides (or has any commitment to provide) health benefits with respect to any current or former employees or independent contractors (or beneficiary thereof) of the Parent Company or any ERISA Affiliate beyond their retirement or other termination of service (other than coverage mandated by COBRA). Each Plan can be unilaterally terminated at any time by the Parent Company without material liability.

Pension and Other Employee Plans and Agreements. (a) Section 4.19 3.18(a) of the Disclosure Schedule sets forth, as of the date of this Agreement, all of the pension, profit sharing, stock option, stock purchase, stock bonus, employee stock ownership, incentive, bonus, life, health, disability or accident plans, deferred compensation plans, and other employee compensation or benefit plans, agreements, practices, policies, customs, contracts, arrangements or commitments, including, without limitation, changes in control or severance agreements, holiday, vacation or other similar plans, programs or arrangements, employee benefit plans (within the meaning of section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and labor union agreements under or with respect to which the Parent Company or any Person person ("ERISA AffiliateAFFILIATE") who would be treated as being a "single employer" with the Parent Company under section 414 of the Internal 24 Revenue Code of 1986, as amended (the "CodeCODE"), has any liability or obligation, whether current, contingent, secondary or otherwise (collectively, the "PlansPLANS" and individually, a "PlanPLAN"), and the Parent Company has furnished to the Company MSSC California or Marketing Specialists complete copies of all of the foregoing as amended and in effect on the date hereof, including, where applicable, any trust agreements, insurance contracts or other funding mediums related to any Plan and Summary Plan Descriptionssummaries of plan descriptions. The Parent Company has heretofore delivered to the Company MSSC California or Marketing Specialists the most recent liability valuation report with respect to each Plan for which a report or estimate has been prepared, the most recent assets valuation report provided to the Parent Company with respect to each Plan that has assets, the two most recent annual reports (form 5500) filed with respect to each Plan for which such report must be filed, and the most recent favorable IRS Internal Revenue Service ("IRS") determination letter received with respect to each Plan that is intended to be qualified under section 401(a) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code. Section 4.19 of the Disclosure Schedule also sets forth any other plans or arrangements which would be required to be listed pursuant to the preceding provisions of this section but for the fact that they were terminated within three years of the date of this Agreement (collectively, "Terminated Plan"). (b) With respect to each Plan and each Terminated Plan, the Parent Company and its ERISA Affiliates have complied in all material respects with, and each Plan and each Terminated Plan conforms in all material respects to and has from its inception been operated in all material respects with, all applicable laws Laws and regulations, including but not limited to ERISA and the Code, and each Plan and each Terminated Plan has been administered in all material respects in accordance with its terms. Each Plan and each Terminated Plan intended to be qualified under section 401(a) of the Code or trust intended to be exempt under section 501(a) or section 501(c)(9) of the Code is, or with respect to a Terminated Plan was at the time it terminated, and for each prior year for which any applicable statute of limitations has not expired, was, qualified or exempt, as the case may be, and each such Plan and Terminated Plan is (or was) a single planPlan, as defined in section 414(1) of the Code and the regulations thereunder, in which the Parent Company is the sole employer. Neither the Parent Company nor any ERISA Affiliate has ever had an obligation or liability, to or with respect to, a multiemployer plan, as defined in section 4001(a)(3) of ERISA. Neither the Parent nor any ERISA Affiliate has any commitment and has not taken any action to adopt or establish any additional Plans or to increase the benefits under any Plan; no event or condition has occurred or exists with respect to any Plan or Terminated Plan, whether or not terminated prior to the date of this Agreement and whether or not maintained or contributed to by the Parent or any ERISA Affiliate, which individually or collectively could result in a material liability to the Parent or any ERISA Affiliate; all contributions required to any Plan and each Terminated Plan and all premiums for insurance coverage for each fiscal year of each Plan and each Terminated Plan ended before the date of this Agreement and for any portion of a fiscal year ending on the Closing Date have been timely paid and payments to be made but not yet due properly accrued and recorded in the Year End Financial Statements and 2000 Financial Statements through their relevant dates; no Plan or Terminated Plan has incurred any "accumulated funding deficiency" (as defined in section 302 of ERISA and section 412 of the Code), whether or not waived; there is no pending or, to the best knowledge of the Parent, threatened or anticipated litigation, arbitration, proceeding, claim (other than an undisputed claim for payment of benefits in accordance with the terms thereof or a pending or final qualified domestic relations order), demand, grievance, or allegation of unfair labor practice (or any basis therefor) involving any of the Plans or Terminated Plans or any investigation, proceeding, administrative review or other administrative agency process which could result in imposition on the Parent or any ERISA Affiliate of any penalty, assessment or liability in connection with any of the Plans or Terminated Plans, individually or collectively; no Plan or Terminated Plan has engaged or is about to engage in a prohibited transaction as defined in section 406 of ERISA or section 4975 of the Code; and no "reportable event," as defined in section 4043 of ERISA, has occurred or is about to incur that could result in a material liability to the Parent or any ERISA Affiliate. (c) No Plan provides (or has any commitment to provide) health benefits with respect to any current or former employees or independent contractors (or beneficiary thereof) of the Parent or any ERISA Affiliate beyond their retirement or other termination of service (other than coverage mandated by COBRA). Each Plan can be unilaterally terminated at any time by the Parent without material liability.