Common use of Plans; ERISA Clause in Contracts

Plans; ERISA. (a) All of the Plans of the Company are listed on Section 2.14(a) of the Company Disclosure Schedule. Copies of all such Plans have been made available to the Purchaser. To the extent applicable, the Plans comply with the requirements of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder (“ERISA”) and the Internal Revenue Code, and except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no Plan is intended to be qualified under Section 401(a) of the Internal Revenue Code or Section 501(a) of the Internal Revenue Code. No Plan is covered by Title IV of ERISA or Section 412 of the Internal Revenue Code. The Company has not been a contributing employer to any multiemployer plan as defined under Section 4001 of ERISA. Neither the Company nor any officer or director has incurred any Liability or penalty under Section 4971 through 4980E of the Code or Title 1 of ERISA. None of the Plans promises or provides retiree medical or other retiree welfare benefits to any person except as required by applicable Law, including but not limited to, the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended. Each Plan has been maintained and administered in all respects in compliance with its terms and with the requirements prescribed by any and all Laws, including but not limited to ERISA and the Internal Revenue Code, which are applicable to such Plans. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no Action or Proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought is threatened, against or with respect to any such Plan. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been made or accrued. All material reports, returns, forms and notices required to be filed with any Government or Regulatory Authority or furnished to participants or beneficiaries with respect to the Plans by the Internal Revenue Code, ERISA or any other applicable Law, have been so filed and furnished. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, the Company is not under a legal or contractual obligation to continue any of the Plans and may terminate any or all of the Plans at any time in accordance with the terms of the Plans and applicable Law without incurring any Liability. (b) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) except as set forth in Section 2.14(b) of the Company Disclosure Schedule, result in any payment or increase (including without limitation severance, unemployment compensation, bonus or otherwise) becoming due to any current or former director, officer, employee or consultant of the Company under any Plan or otherwise, (ii) result in a payment or benefit becoming due to any director, officer or employee of the Company under any Plan or otherwise which will be characterized as a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (but without regard to clause (b)(2)(A)(ii) thereof), (iii) increase any benefits otherwise payable under any Plan or (iv) result in the acceleration of the time of payment or vesting of any such benefits. (c) To the extent applicable, the Company has complied with the continuation health care coverage requirements of Section 4980B of the Internal Revenue Code and Sections 601 through 608 of ERISA with respect to “qualifying events,” as defined in the Internal Revenue Code and ERISA, which occur on or before the Closing with respect to any current or former employees of the Company and its respective “qualified beneficiaries,” as defined in the Internal Revenue Code and ERISA, and with the requirements of the Health Insurance Portability and Accountability Act and other applicable health insurance requirements in Section 4980D of the Internal Revenue Code and Sections 701 through 734 of ERISA.

Plans; ERISA. (a) All of the Plans of the Company and its ERISA Affiliates are listed on Section 2.14(aSchedule 3.13(a) of the Company Disclosure Schedule. Copies of all such Plans have been made available to the Purchaser. To the extent applicable, the Plans comply with the requirements of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder (“ERISA”) and the Internal Revenue Code, and except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no Any Plan is intended to be qualified under Section 401(a) of the Internal Revenue Code or Section 501(a) of the Internal Revenue CodeCode is so qualified and is subject to a current determination letter from the Internal Revenue Service regarding such qualification (or, where there is no determination letter but such Plan is based upon a master and prototype or volume submitter form, the sponsor of such form has received a current advisory opinion as to the form upon which the Company is entitled rely under applicable Internal Revenue Service procedures), which has been provided to Purchaser, and nothing has occurred which has resulted or is likely to result in the revocation of such qualification or which requires or could require action under the compliance resolution programs of the Internal Revenue Service to preserve such qualification. No Plan is covered by Title IV of ERISA or Section 412 of the Internal Revenue Code. The Neither the Company nor any of its ERISA Affiliates has not been a contributing employer to any multiemployer plan as defined under Section 4001 of ERISA. Neither the Company nor any officer or director member of the Company has incurred any Liability or penalty under Section 4971 through 4980E of the Code or Title 1 of ERISA. None of the Plans promises or provides retiree medical or other retiree welfare benefits subsequent to termination of employment to any person except as required by applicable Law, including but not limited to, the Consolidated Omnibus Budget Reconciliation Act of 1985, as amendedInternal Revenue Code Section 4980B and ERISA Sections 601 to 608 and any similar state laws. Each Plan has been maintained and administered in all respects in compliance with its terms and with the requirements prescribed by any and all Laws, including but not limited to ERISA and the Internal Revenue Code, which are applicable to such Plans. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no No Action or Proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought brought, or to the knowledge of the Company or the Sellers, is threatened, threatened against or with respect to any Plan or to the knowledge of the Company or the Sellers any fiduciary or service provider thereof and, to the knowledge of the Company or the Sellers, there is no basis for any such Planlegal action, proceeding or investigation. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been made or accrued. All material reports, returns, forms and notices required to be filed with any Government or Regulatory Authority or furnished to participants or beneficiaries with respect to the Plans Plans, by the Internal Revenue Code, ERISA or any other applicable Law, have been so filed and furnished. Except as disclosed on Section 2.14(aSchedule 3.13(a) of the Company Disclosure Schedule, neither the Company nor any of its ERISA Affiliates is not under a legal or contractual obligation to continue any of the Plans and may terminate any or all of the Plans at any time in accordance with the terms of the Plans and applicable Law without incurring any Liability. (b) With respect to each Plan, the Sellers have delivered or made available (or have caused the Company to have delivered or made available) to the Purchaser accurate and complete copies, if applicable, of: (i) all Plan texts and agreements and related trust agreements or insurance or annuity contracts; (ii) all material employee communications (including all summary plan descriptions and material modifications thereto); (iii) the three most recent Forms 5500, if applicable, and annual reports, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the most recent determination or opinion letter received from the IRS; and (vi) the most recent actuarial valuation. (c) With respect to each Plan: (i) no breach of fiduciary duty has occurred; (ii) no prohibited transaction, as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption which has been furnished to Purchaser, and (iii) all contributions and premiums have been timely made as required under ERISA, the Code, other applicable Law and/or the terms of the respective Plan, or have been fully accrued on the Company’s or ERISA Affiliate’s financial statements and all benefits due through the Closing Date have been provided. (d) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) except as set forth in Section 2.14(b) of the Company Disclosure Schedule, result in any payment or increase increased benefit (including without limitation severance, unemployment compensation, bonus or otherwise) becoming due to any current or former directormember, officer, employee or consultant of the Company under any Plan or otherwise, (ii) result in a payment or benefit becoming due to any director, officer or employee of the Company ERISA Affiliate under any Plan or otherwise which will be characterized as a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code or (but without regard to clause (b)(2)(A)(ii) thereof), (iiiii) increase any benefits otherwise payable under any Plan or (iv) result in the acceleration of the time of payment or vesting of any such benefitsPlan. (ce) The Company has not made any payments, is not obligated to make any payments, and is not a party to any agreement that under certain circumstances could obligate it to make any payments, that will not be deductible under Code Sections 162(m) or 280G. (f) To the extent applicable, the Company has and its ERISA Affiliates have complied with the continuation health care coverage requirements of Section 4980B of the Internal Revenue Code and Sections 601 through 608 of ERISA with respect to “qualifying events,” as defined in the Internal Revenue Code and ERISA, which occur or have occurred on or before the Closing Date with respect to any current or former employees of the Company or ERISA Affiliate and its their respective “qualified beneficiaries,” as defined in the Internal Revenue Code and ERISA, and with the requirements of the Health Insurance Portability and Accountability Act and other applicable health insurance requirements in Section 4980D of the Internal Revenue Code and Sections 701 through 734 of ERISA. (g) No communication, report or disclosure has been made which, at the time made, did not accurately reflect the terms and operations of any Plan. Except as provided in Section 3.13(i) below, the Company has not announced its intention, or undertaken (whether or not legally bound) to modify or terminate any Plan or adopt any arrangement or program which, once established, would come within the definition of an Plan. The Company has not undertaken to maintain any Plan for any period of time and each such Plan is terminable at the sole discretion of the sponsor thereof, subject only to such constraints as may imposed by applicable law. The Company has no liability, including under any Plan, arising out of the treatment of any service provider as a consultant or independent contractor and not as an employee. (h) The Company does not have any plan, program or arrangement that is a nonqualified deferred compensation plan within the meaning of Section 409A of the Code and that has not since December 31, 2004 been operated and maintained in accordance with the requirements of Section 409A of the Code, the proposed Treasury Regulations thereunder, and Notice 2005-1 with respect to amounts subject to such requirements. (i) The Company’s Manager Board has executed a unanimous written consent dated prior to Closing providing for the termination prior to Closing of any Company Plan which provides benefits under Code Section 401(a) or (k), 100% vesting of any participant Plan accounts as of the Plan termination and the discontinuation of any contributions to such Plan for any periods on or after the Plan’s termination.

Plans; ERISA. (a) All of the Plans of the Company and its ERISA Affiliates, or under which the Company or any ERISA Affiliate has or may reasonably be expected in the future to have any liability, are listed on Section SCHEDULE 2.14(a) of the Company Disclosure Schedule). Copies of all such Plans have been made available furnished to Purchaser, along with annual reports (Forms 5500) required for any Plan for the Purchaserlast three (3) years, summary plan descriptions and any trusts, insurance policies or other funding arrangements. To the extent applicable, the Plans comply each Plan has been maintained and administered, in all material respects, in accordance with the requirements of its terms and all applicable Laws, including but not limited to the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder (“"ERISA”") and the Internal Revenue Code, and except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no . Any Plan is intended to be qualified under Section 401(a) of the Internal Revenue Code or Section 501(a) of the Internal Revenue CodeCode is so qualified and is subject to a current opinion or determination letter from the Internal Revenue Service regarding such qualification, which has been furnished to Purchaser. No Plan, in operation, is in violation of Internal Revenue Code Section 409A. No Plan is covered by Title IV of ERISA or Section 412 of the Internal Revenue Code. The Neither the Company nor any of its Affiliates has not been a contributing employer to any multiemployer plan as defined under Section 4001 of ERISA. Neither the Company nor any officer or director of the Company has incurred any Liability or penalty under Section 4971 through 4980E 4980G of the Internal Revenue Code or Title 1 of ERISA. None of the Plans promises or provides retiree medical or other retiree welfare benefits to any person except as required by applicable Law, including but not limited to, the Consolidated Omnibus Budget Reconciliation Act Sections 601 to 608 of 1985, as amended. Each Plan has been maintained and administered in all respects in compliance with its terms and with the requirements prescribed by any and all Laws, including but not limited to ERISA and Section 4980B of the Internal Revenue Code, which are applicable to such Plans. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no No Action or Proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought brought, or to the Knowledge of the Company, is threatened, against or with respect to any such Plan. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been made or accrued. All material reports, returns, forms and notices required to be filed with any Government Governmental or Regulatory Authority or furnished to participants or beneficiaries with respect to the Plans Plans, by the Internal Revenue Code, ERISA or any other applicable Law, have been so filed and furnished. Except as disclosed on Section 2.14(a) of Neither the Company Disclosure Schedule, the Company nor any of its Affiliates is not under a legal or contractual obligation to continue any of the Plans and may terminate any or all of the Plans at any time in accordance with the terms of the Plans and applicable Law without incurring any Liability. (b) Neither Except for the acceleration of vesting of all options upon the consummation of the transaction contemplated hereby, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) except as set forth in Section 2.14(b) of the Company Disclosure Schedule, result in any payment or increase increased benefit (including without limitation severance, unemployment compensation, bonus or otherwise) becoming due to any current or former director, officer, employee or consultant of the Company under any Plan or otherwise, (ii) result in a payment or benefit becoming due to any director, officer or employee of the Company under any Plan or otherwise which will be characterized as a “"parachute payment” " within the meaning of Section 280G of the Internal Revenue Code (but without regard to clause (b)(2)(A)(ii) thereof), (iii) increase any benefits otherwise payable under any Plan Plan, or (iv) result in the acceleration of the time of payment or vesting of any such benefits. (c) To the extent applicable, the Company has and its Affiliates have complied in all material respects with the continuation health care coverage requirements of Section 4980B of the Internal Revenue Code and Sections 601 through 608 of ERISA with respect to “"qualifying events,” " as defined in the Internal Revenue Code Section 4980B and ERISAERISA Section 603, which occur on or before the Closing with respect to any current or former employees of the Company and its their respective “"qualified beneficiaries,” " as defined in the Internal Revenue Code Section 4980B and ERISAERISA Section 603, and with the requirements of the Health Insurance Portability and Accountability Act and other applicable health insurance requirements in Section 4980D of the Internal Revenue Code and Sections 701 through 734 of ERISA.

Plans; ERISA. (a) All of the Plans of the Company and its ERISA Affiliates are listed on Section Schedule 2.14(a) of the Company Disclosure Schedule). Copies of all such Plans and written descriptions of any oral Plans have been made available to Purchaser, along with annual reports (Forms 5500) required for any Plan for the Purchaserlast three (3) years. To the extent applicable, the Plans comply each Plan has been maintained and administered in accordance with the requirements of its terms and all applicable Laws, including but not limited to the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder (“ERISA”) and the Internal Revenue Code, and except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no . Any Plan is intended to be qualified under Section 401(a) of the Internal Revenue Code or tax-exempt under Section 501(a) of the Internal Revenue CodeCode is so qualified or tax-exempt and is subject to a current opinion or determination letter from the Internal Revenue Service regarding such qualification or tax exemption, which has been made available to Purchaser. No Plan is covered by Title IV of ERISA or Section 412 of the Internal Revenue Code. The Neither the Company nor any of its ERISA Affiliates has not been a contributing employer to any multiemployer plan as defined under Section 4001 of ERISA. Neither the Company nor any officer or director of the Company has incurred any Liability or penalty under Section 4971 through 4980E of the Internal Revenue Code or Title 1 of ERISA. No ERISA Affiliate or officer of any ERISA Affiliate has incurred any such liability or penalty. None of the Plans promises or provides retiree medical or other retiree welfare benefits to any person except as required by applicable Law, including but not limited to, the Consolidated Omnibus Budget Reconciliation Act Sections 601 to 608 of 1985, as amended. Each Plan has been maintained and administered in all respects in compliance with its terms and with the requirements prescribed by any and all Laws, including but not limited to ERISA and Section 4980B of the Internal Revenue Code, which are applicable to such Plans. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no No Action or Proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought brought, or to the knowledge of Seller and/or the Company, is threatened, against or with respect to any such Plan. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been made or accrued. All material reports, returns, forms and notices required to be filed with any Government or Regulatory Authority or furnished to participants or beneficiaries with respect to the Plans Plans, by the Internal Revenue Code, ERISA or any other applicable Law, have been so filed and furnished. Except as disclosed on Section Schedule 2.14(a) of ), neither the Company Disclosure Schedule, the Company nor any of its ERISA Affiliates is not under a legal or contractual obligation to continue any of the Plans and may terminate any or all of the Plans at any time in accordance with the terms of the Plans and applicable Law without incurring any Liability. (b) Neither Except as provided in Schedule 2.14(b), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) except as set forth in Section 2.14(b) of the Company Disclosure Schedule, result in any payment or increase increased benefit (including without limitation severance, unemployment compensation, bonus or otherwise) becoming due to any current or former director, officer, employee or consultant of the Company or any ERISA Affiliate under any Plan or otherwise, (ii) result in a payment or benefit becoming due to any director, officer or employee of the Company or any ERISA Affiliate under any Plan or otherwise which will be characterized as a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (but without regard to clause (b)(2)(A)(ii) thereof), (iii) increase any benefits otherwise payable under any Plan Plan, or (iv) result in the acceleration of the time of payment or vesting of any such benefits. (c) To the extent applicable, the Company has and its ERISA Affiliates have complied with the continuation health care coverage requirements of Section 4980B of the Internal Revenue Code and Sections 601 through 608 of ERISA with respect to “qualifying events,” as defined in the Internal Revenue Code and ERISA, which occur on or before the Closing with respect to any current or former employees of the Company and its ERISA Affiliates and their respective “qualified beneficiaries,” as defined in the Internal Revenue Code and ERISA, and with the requirements of the Health Insurance Portability and Accountability Act and other applicable health insurance requirements in Section 4980D of the Internal Revenue Code and Sections 701 through 734 of ERISA. (d) Any Plan which is a “nonqualified deferred compensation plan” as defined in Internal Revenue Code Section 409A has been operated in good faith compliance with Internal Revenue Code Section 409A.

Plans; ERISA. (a) All of the Plans of the Company are listed on Section 2.14(a) of the Company Disclosure Schedule. Copies of all such Plans have been made available to the Purchaser. To the extent applicable, the Plans comply with the requirements of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder (“ERISA”) and the Internal Revenue Code, and except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no Plan is intended to be qualified under Section 401(a) of the Internal Revenue Code or Section 501(a) of the Internal Revenue Code. No Plan is covered by Title IV of ERISA or Section 412 of the Internal Revenue Code. The Company has not been a contributing employer to any multiemployer plan as defined under Section 4001 of ERISA. Neither the Company nor any officer officer, manager or director member has incurred any Liability or penalty under Section 4971 through 4980E of the Code or Title 1 of ERISA. None of the Plans promises or provides retiree medical or other retiree welfare benefits to any person except as required by applicable Law, including but not limited to, the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended. Each Plan has been maintained and administered in all respects in compliance with its terms and with the requirements prescribed by any and all Laws, including but not limited to ERISA and the Internal Revenue Code, which are applicable to such Plans. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, no Action or Proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought is threatened, against or with respect to any such Plan. All contributions, reserves or premium payments required to be made or accrued as of the date hereof Effective Date to the Plans have been made or accrued. All material reports, returns, forms and notices required to be filed with any Government or Regulatory Authority or furnished to participants or beneficiaries with respect to the Plans by the Internal Revenue Code, ERISA or any other applicable Law, have been so filed and furnished. Except as disclosed on Section 2.14(a) of the Company Disclosure Schedule, the Company is not under a legal or contractual obligation to continue any of the Plans and may terminate any or all of the Plans at any time in accordance with the terms of the Plans and applicable Law without incurring any Liability. (b) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) except as set forth in Section 2.14(b) of the Company Disclosure Schedule, result in any payment or increase (including without limitation severance, unemployment compensation, bonus or otherwise) becoming due to any current or former directormember, manager, officer, employee or consultant of the Company under any Plan or otherwise, (ii) result in a payment or benefit becoming due to any directormember, manager, officer or employee of the Company under any Plan or otherwise which will be characterized as a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code (but without regard to clause (b)(2)(A)(ii) thereof), (iii) increase any benefits otherwise payable under any Plan or (iv) result in the acceleration of the time of payment or vesting of any such benefits. (c) To the extent applicable, the Company has complied with the continuation health care coverage requirements of Section 4980B of the Internal Revenue Code and Sections 601 through 608 of ERISA with respect to “qualifying events,” as defined in the Internal Revenue Code and ERISA, which occur on or before the Closing with respect to any current or former employees of the Company and its respective “qualified beneficiaries,” as defined in the Internal Revenue Code and ERISA, and with the requirements of the Health Insurance Portability and Accountability Act and other applicable health insurance requirements in Section 4980D of the Internal Revenue Code and Sections 701 through 734 of ERISA.