PERSON
THAT, TOGETHER WITH THE COMPANY OR ANY OF ITS SUBSIDIARIES, IS OR WAS TREATED AS
A SINGLE EMPLOYER UNDER SECTION 414 OF THE CODE WOULD REASONABLY BE EXPECTED TO
INCUR LIABILITY UNDER SECTION 4063 OR 4064 OF ERISA.
(E)
NO PROCEEDINGS (OTHER THAN ROUTINE CLAIMS
FOR BENEFITS IN THE ORDINARY COURSE) ARE PENDING OR, TO THE KNOWLEDGE OF THE
COMPANY, THREATENED WITH RESPECT TO ANY COMPANY PLAN OR AGAINST THE ASSETS OF
SUCH COMPANY PLAN.
(F)
NO COMPANY PLAN PROVIDES POST-TERMINATION
WELFARE BENEFITS, AND NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES HAS ANY
OBLIGATION TO PROVIDE ANY POST-TERMINATION WELFARE BENEFITS, IN EACH CASE OTHER
THAN HEALTH CARE CONTINUATION AS REQUIRED BY SECTION 4980B OF THE CODE.
(G)
EACH COMPANY PLAN WHICH IS INTENDED TO BE
QUALIFIED UNDER SECTION 401(A) OF THE CODE HAS RECEIVED A FAVORABLE
DETERMINATION LETTER FROM THE IRS COVERING ALL TAX LAW CHANGES PRIOR TO THE
ECONOMIC GROWTH AND TAX RELIEF RECONCILIATION ACT OF 2001 OR IS A PROTOTYPE PLAN
SUBJECT TO A FAVORABLE OPINION LETTER THAT MAY BE RELIED ON, AND, TO THE
KNOWLEDGE OF THE COMPANY, NO CIRCUMSTANCES EXIST OR EXISTED THAT HAS OR IS
LIKELY TO AFFECT SUCH FAVORABLE DETERMINATION OR RESULT IN THE LOSS OF
QUALIFICATION OF SUCH COMPANY PLAN UNDER SECTION 401(A) OF THE CODE.
EACH
OUTSTANDING OPTION IS A STOCK RIGHT THAT IS EXEMPT FROM THE PROVISIONS OF
SECTION 409A OF THE CODE.
EACH COMPANY PLAN THAT IS A "NONQUALIFIED DEFERRED
COMPENSATION PLAN" WITHIN THE MEANING OF SECTION 409A(D)(1) OF THE CODE AND
APPLICABLE GUIDANCE ISSUED THEREUNDER (A "NONQUALIFIED DEFERRED COMPENSATION
PLAN") THAT IS SUBJECT TO SECTION 409A OF THE CODE HAS BEEN OPERATED IN GOOD
FAITH COMPLIANCE WITH SECTION 409A OF THE CODE SINCE JANUARY 1, 2005.
NO
NONQUALIFIED DEFERRED COMPENSATION PLAN THAT IS INTENDED TO BE EXEMPT FROM
SECTION 409A OF THE CODE DUE TO THE EFFECTIVE DATE PROVISIONS THAT ARE
APPLICABLE TO SECTION 409A OF THE CODE, AS SET FORTH IN SECTION 885(D) OF THE
AMERICAN JOBS CREATION ACT OF 2004, AS AMENDED (THE "AJCA"), HAS BEEN
"MATERIALLY MODIFIED" WITHIN THE MEANING OF SECTION 885(D)(2)(B) OF THE AJCA
AFTER OCTOBER 3, 2004, BASED UPON A GOOD FAITH REASONABLE INTERPRETATION OF THE
AJCA.
(H)
NEITHER THE EXECUTION BY THE COMPANY OF THIS
AGREEMENT NOR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY WILL
(EITHER ALONE OR UPON OCCURRENCE OF
14
ANY ADDITIONAL OR SUBSEQUENT EVENTS) (I) CONSTITUTE AN EVENT UNDER ANY COMPANY
PLAN OR ANY TRUST OR LOAN RELATED TO ANY OF THOSE PLANS OR AGREEMENTS THAT WILL
OR MAY RESULT IN ANY PAYMENT, ACCELERATION, FORGIVENESS OF INDEBTEDNESS,
VESTING, DISTRIBUTION, INCREASE IN BENEFITS OR OBLIGATION TO FUND BENEFITS WITH
RESPECT TO ANY COMPANY EMPLOYEE, (II) RESULT IN THE TRIGGERING OR IMPOSITION OF
ANY RESTRICTIONS OR LIMITATIONS ON THE RIGHT OF THE COMPANY TO AMEND OR
TERMINATE ANY COMPANY PLAN OR (III) RESULT IN THE FAILURE OF ANY AMOUNT TO BE
DEDUCTIBLE BY REASON OF SECTION 280G OF THE CODE.
(I)
NO COMPANY PLAN IS UNDER AUDIT OR