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Agreement; (ix) other than with respect to Company Options, neither the execution and delivery of this Agreement, nor the consummation of any transaction contemplated by this Agreement (alone or in conjunction with a termination of employment) will (A) trigger any funding (through a grantor trust or otherwise) of any compensation or benefits or (B) result in any violation or breach of, or a default (with or without notice or lapse of time or both) under any Company Benefit Plan; (x) other than as set forth in any Company Benefit Plans or as may be required to avoid any adverse tax consequence under Section 409A of the Code, since January 1, 2004, there has not been any adoption or amendment in any material respect by Company or any Company Subsidiaries of any Company Benefit Plan or any agreement (whether or not legally binding) to adopt or amend any such plan; and (xi) only officers, directors and employees of Company or any Company Subsidiaries are eligible for material compensation or benefits under the terms of each Company Benefit Plan, and each individual who is classified by Company or any Company Subsidiary as an “employee” or as an “independent contractor” is properly so classified.

(e) There is no contract, plan or arrangement (written or otherwise) covering any current or former employee of Company or any Company Subsidiary that, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to the terms of Section 280G of the Code.

(f) Except as specifically set forth in this Section 3.12, Seller makes no other representations or warranties in this Agreement with respect to ERISA or the other matters set forth in this Section 3.12.

Section 3.13 Labor and Employment Matters .

(a) Since January 1, 2004, neither Company nor any of Company Subsidiaries has been a party to, or bound by, or conducted negotiations regarding, any collective bargaining agreement or other contracts, arrangements, agreements or understandings with a labor union or labor organization that was certified by the NLRB or voluntarily recognized or recognized under foreign Law. There is no material existing, pending or, to the Knowledge of Seller, threatened (i) Concerted Action involving the employees of Company or any of Company Subsidiaries, (ii) unfair labor practice charge or complaint, labor dispute, labor arbitration proceeding or any other matter before the NLRB or any other comparable state agency against or involving Company or any of Company Subsidiaries, (iii) election petition or other activity or proceeding by a labor union or representative thereof to organize any employees of Company or any of Company Subsidiaries, (iv) certification or decertification question relating to collective bargaining units at the premises of Company or any of Company Subsidiaries, or (v) grievance or arbitration demand against Company or any of Company’s Subsidiaries whether or not filed pursuant to a collective bargaining agreement. To the Knowledge of Seller, neither the employees of Company nor the employees of any of Company Subsidiaries have engaged in a material Concerted Action in the past three years.

(b) To the Knowledge of Seller, none of Company, any of Company Subsidiaries or any of their respective representatives or employees has committed an unfair labor practice in connection with the operation of the respective businesses of Company or any of Company Subsidiaries. Each of Company and Company Subsidiaries is in compliance in all


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