Common use of Benefit Plans; ERISA Compliance Clause in Contracts

Benefit Plans; ERISA Compliance. (a) Section 3.18(a) of the Live Earth Disclosure Schedule contains a list of each “employee pension benefit plan” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) (sometimes referred to in this Agreement as “Pension Plans”), “employee welfare benefit plans” (as defined in Section 3(1) of ERISA) (sometimes referred to in this Section 3.18 as “Welfare Plans”) or any other Benefit Plans, as defined below maintained by any Live Earth Company with respect to the Live Earth Company Employees. (b) No Live Earth Company maintains any Pension Plan or Benefit Plan intended to be a tax qualified plan described Section 401(a) of the Code, and no such plan is or has been subject to the minimum funding rules of Code Section 412 or ERISA Section 302, or the plan termination insurance provisions of Title IV of ERISA. (c) There are no voluntary employee benefit associations maintained by any Live Earth Company and intended to be exempt from federal income tax under Section 501(c)(9) of the Code. (d) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will give rise to, or trigger, any change of control, severance or other similar provisions in any Pension Plan, Welfare Plan or Benefit Plan that will obligate the Live Earth Companies to make such payment. The consummation of any transaction contemplated by this Agreement will not result in any: (i) payment (whether of severance pay or otherwise) becoming due from the Live Earth Companies to any of their respective officers, employees, former employees or directors or to the trustee under any “rabbi trust” or similar arrangement; (ii) benefit under any Benefit Plan applicable to the Live Earth Companies being established or becoming accelerated, vested or payable; or (iii) payment or series of payments by any Live Earth Company, directly or indirectly, to any Person that would constitute a “parachute payment” within the 11 meaning of Section 280G of the Code (other than as set forth under Section 3.17 of the Live Earth Disclosure Schedule). (e) No Live Earth Company provides any material post-retirement medical, health, disability or death protection coverage or contribute to or maintain any employee welfare benefit plan which provides for medical, health, disability or death benefit coverage following termination of employment by any officer, director or employee except as is required by Section 4980B(f) of the Code or other applicable statute, nor has any Live Earth Company made any representations, agreements, covenants or commitments to provide that coverage. (f) With respect to any Welfare Plan applicable to the Live Earth Companies, (i) each such Welfare Plan that is a group health plan, as such term is defined in Section 5000(b)(1) of the Code, complies in all material respects with any applicable requirements of Part 6 of Title I of ERISA and Section 4980B(f) of the Code and (ii) each such Welfare Plan (including any such plan covering retirees or other former employees) may be amended or terminated with respect to health benefits without material liability to any Live Earth Company on or at any time after the Closing Date. (g) All contributions by any Live Earth Company required by law or by a collective bargaining or other agreement to be made under any Pension Plan, Welfare Plan or Benefit Plan with respect to all periods through the Closing Date, including a pro rata share of contributions due for the current plan year, will have been made by such date. (h) No Live Earth Company has, nor will any Live Earth Company have, any liability or obligation for taxes, penalties, contributions, losses, claims, damages, judgments, settlement costs, expenses, costs, or any other liability or liabilities of any nature whatsoever arising out of or in any manner relating to any Pension Plan, Welfare Plan or Benefit Plan (including but not limited to employee benefit plans such as foreign plans which are not subject to ERISA), that has been, or is, contributed to by any entity, whether or not incorporated, which is deemed to be under common control (as defined in Section 414 of the Code), with any such Live Earth Company.

Benefit Plans; ERISA Compliance. (a) Section 3.18(a) The WSI Parties are Affiliates of the Live Earth Disclosure Schedule contains a list of each Waste Services, Inc. The WSI Companies participate in, but do not sponsor or maintain any “employee pension benefit planplans” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) (sometimes referred to in this Agreement Section 3.18 as “Pension Plans”), “employee welfare benefit plans” (as defined in Section 3(1) of ERISA) (sometimes referred to in this Section 3.18 as “Welfare Plans”) or any other Benefit Plans, as defined below maintained by any Live Earth Company with respect to the Live Earth Company Employeesbelow. (b) No Live Earth WSI Company maintains any Pension Plan or Benefit Plan intended to be a tax qualified plan described Section 401(a) of the Code, and no such plan is or has been subject to the minimum funding rules of Code Section 412 or ERISA Section 302, or the plan termination insurance provisions of Title IV of ERISA. (c) There are no voluntary employee benefit associations maintained by any Live Earth WSI Company and intended to be exempt from federal income tax under Section 501(c)(9) of the Code. (de) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will give rise to, or trigger, any change of control, severance or other similar provisions in any Pension Plan, Welfare Plan or Benefit Plan that will obligate the Live Earth WSI Companies to make such payment. The consummation of any transaction contemplated by this Agreement will not result in any: (i) payment (whether of severance pay or otherwise) becoming due from the Live Earth WSI Companies to any of their respective officers, employees, former employees or directors or to the trustee under any “rabbi trust” or similar arrangement; (ii) benefit under any Benefit Plan applicable to the Live Earth WSI Companies being established or becoming accelerated, vested or payable; or (iii) payment or series of payments by any Live Earth WSI Company, directly or indirectly, to any Person person that would constitute a “parachute payment” within the 11 meaning of Section 280G of the Code (other than as set forth under Section 3.17 of the Live Earth Disclosure Schedule)Code. (ef) No Live Earth WSI Company provides any material post-retirement medical, health, disability or death protection coverage or contribute to or maintain any employee welfare benefit plan which provides for medical, health, disability or death benefit coverage following termination of employment by any officer, director or employee except as is required by Section 4980B(f) of the Code or other applicable statute, nor has any Live Earth WSI Company made any representations, agreements, covenants or commitments to provide that coverage. (fg) With respect to any Welfare Plan applicable to the Live Earth WSI Companies, (i) each such Welfare Plan that is a group health plan, as such term is defined in Section 5000(b)(1) of the Code, complies in all material respects with any applicable requirements of Part 6 of Title I of ERISA and Section 4980B(f) of the Code and (ii) each such Welfare Plan (including any such plan covering retirees or other former employees) may be amended or terminated with respect to health benefits without material liability to any Live Earth WSI Company on or at any time after the Closing Date. (gh) All contributions by any Live Earth WSI Company required by law or by a collective bargaining or other agreement to be made under any Pension Plan, Welfare Plan or Benefit Plan with respect to all periods through the Closing Date, including a pro rata share of contributions due for the current plan year, will have been made by such date. (hi) No Live Earth WSI Company has, nor will any Live Earth WSI Company have, any liability or obligation for taxes, penalties, contributions, losses, claims, damages, judgments, settlement costs, expenses, costs, or any other liability or liabilities of any nature whatsoever arising out of or in any manner relating to any Pension Plan, Welfare Plan or Benefit Plan (including but not limited to employee benefit plans such as foreign plans which are not subject to ERISA), that has been, or is, contributed to by any entity, whether or not incorporated, which is deemed to be under common control (as defined in Section 414 of the Code), with any such Live Earth WSI Company.

Benefit Plans; ERISA Compliance. (a) Section 3.18(a3.17(a) of the Live Earth Emerald Disclosure Schedule contains a list of each “employee pension benefit plan” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) (sometimes referred to in this Agreement as “Pension Plans”), “employee welfare benefit plans” (as defined in Section 3(1) of ERISA) (sometimes referred to in this Section 3.18 3.17 as “Welfare Plans”) or any other Benefit Plans, as defined below maintained by any Live Earth Company Emerald Party (other than EWS with respect to its Gulf Coast Business) with respect to the Live Earth Emerald Company Employees. (b) No Live Earth Emerald Company (other than EWS with respect to its Gulf Coast Business) maintains any Pension Plan or Benefit Plan intended to be a tax qualified plan described Section 401(a) of the Code, and no such plan which is maintained by any Emerald Party is or has been subject to the minimum funding rules of Code Section 412 or ERISA Section 302, or the plan termination insurance provisions of Title IV of ERISA. (c) There are no voluntary employee benefit associations maintained by any Live Earth Emerald Company and (other than EWS with respect to its Gulf Coast Business) that are intended to be exempt from federal income tax under Section 501(c)(9) of the Internal Revenue Code of 1986, as amended (the “Code”). (d) Neither Except as set forth in Section 3.17(d) of the Emerald Disclosure Schedule, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will give rise to, or trigger, any change of control, severance or other similar provisions in any Pension Plan, Welfare Plan or Benefit Plan that will obligate the Live Earth Companies any Emerald Company (other than EWS with respect to its Gulf Coast Business) to make such payment. The Except as set forth in Section 3.17(d) of the Emerald Disclosure Schedule, the consummation of any transaction contemplated by this Agreement will not result in any: (i) payment (whether of severance pay or otherwise) becoming due from the Live Earth Emerald Companies (other than EWS with respect to its Gulf Coast Business) to any of their respective officers, employees, former employees or directors or to the trustee under any “rabbi trust” or similar arrangement; (ii) benefit under any Benefit Plan applicable to the Live Earth Emerald Companies (other than EWS with respect to its Gulf Coast Business) being established or becoming accelerated, vested or payable; or (iii) payment or series of payments by any Live Earth CompanyEmerald Company (other than EWS with respect to its Gulf Coast Business), directly or indirectly, to any Person that would constitute a “parachute payment” within the 11 meaning of Section 280G of the Code (other than as set forth under Section 3.17 of the Live Earth Disclosure Schedule)Code. (e) No Live Earth Except as set forth in Section 3.17(e) of the Emerald Disclosure Schedule, no Emerald Company (other than EWS with respect to its Gulf Coast Business) provides any material post-retirement medical, health, disability or death protection coverage or contribute to or maintain any employee welfare benefit plan which provides for medical, health, disability or death benefit coverage following termination of employment by any officer, director or employee except as is required by Section 4980B(f) 4980B of the Code or other applicable statute, nor has any Live Earth Emerald Company (other than EWS with respect to its Gulf Coast Business) made any representations, agreements, covenants or commitments to provide that coverage. (f) With respect to any Welfare Plan applicable to the Live Earth CompaniesEmerald Companies (other than EWS with respect to its Gulf Coast Business), except as would not reasonably be expected to result in material liability to the Emerald Companies (i) each such Welfare Plan that is a group health plan, as such term is defined in Section 5000(b)(1) of the Code, complies in all material respects with any applicable requirements of Part 6 of Title I of ERISA and Section 4980B(f) of the Code and (ii) each such Welfare Plan (including any such plan covering retirees or other former employees) may be amended or terminated with respect to health benefits claims incurred after the date of such amendment (presuming proper notice thereof) without material liability to any Live Earth Emerald Company (other than EWS with respect to its Gulf Coast Business) on or at any time after the Closing Date. (g) All Except as would not reasonably be expected to result in material liability to the Emerald Companies, all contributions by any Live Earth Emerald Company (other than EWS with respect to its Gulf Coast Business) required by law or by a collective bargaining or other agreement to be made under any Pension Plan, Welfare Plan or Benefit Plan with respect to all periods through the Closing Date, including a pro rata share of contributions due for the current plan year, will have been made by such date. (h) No Live Earth Emerald Company has(other than EWS with respect to its Gulf Coast Business) has nor, nor as of the Closing, will any Live Earth Emerald Company (other than EWS with respect to its Gulf Coast Business) have, any liability or obligation for taxes, penalties, contributions, losses, claims, damages, judgments, settlement costs, expenses, costs, or any other liability or liabilities of any nature whatsoever arising out of or in any manner relating to any Pension Plan, Welfare Plan or Benefit Plan (including but not limited to employee benefit plans such as foreign plans which are not subject to ERISA), that has been, or is, contributed to by any entity, whether or not incorporated, which is deemed to be under common control (as defined in Section 414 of the Code), with any such Live Earth CompanyEmerald Company (other than EWS with respect to its Gulf Coast Business) as of or prior to the Closing.

Benefit Plans; ERISA Compliance. (a) Section 3.18(a) 10 of the Live Earth Company Disclosure Schedule contains sets forth a complete list of each “all Benefit Plans. The Company has no material Unfunded Liabilities relating to any Single Employer Plans. Neither the Company nor any other member of the Controlled Group has incurred any material withdrawal liability relating to any Multiemployer Plans. Each Company Plan and other Benefit Plan has been administered in a manner that would not result in a Company Material Adverse Effect, no material Reportable Event has occurred with respect to any Plan, neither the Company nor any other member of the Controlled Group has withdrawn from any Plan or initiated steps to do so, and no steps have been taken to reorganize or terminate any Plan. The Company is not an entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section 25 10.3-101 of an employee pension benefit plan” plan (as defined in Section 3(23(3) of ERISA) which is subject to Title I of ERISA or any plan (within the Employee Retirement Income Security Act meaning of 1974, as amended (“ERISA”Section 4975 of the Code)) (sometimes referred . With respect to in this Agreement as “Pension Plans”), “any Benefit Plan that is an employee welfare benefit plans” plan (as defined in Section 3(13(l) of ERISA), (i) (sometimes referred to in this Section 3.18 as “Welfare Plans”) or any other Benefit Plans, as defined below maintained by any Live Earth Company with respect to the Live Earth Company Employees. (b) No Live Earth Company maintains any Pension Plan or no such Benefit Plan intended to be provides benefits, including without limitation, death or medical benefits, beyond termination of employment or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under a tax Benefit Plan qualified plan described under Section 401(a) of the Code, and no such plan is or has been subject to the minimum funding rules of Code Section 412 or ERISA Section 302, or the plan termination insurance provisions of Title IV of ERISA. (c) There are no voluntary employee benefit associations maintained by any Live Earth Company and intended to be exempt from federal income tax under Section 501(c)(9) of the Code. (d) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement will give rise to, or trigger, any change of control, severance or other similar provisions in any Pension Plan, Welfare Plan or Benefit Plan that will obligate the Live Earth Companies to make such payment. The consummation of any transaction contemplated by this Agreement will not result in any: (i) payment (whether of severance pay or otherwise) becoming due from the Live Earth Companies to any of their respective officers, employees, former employees or directors or to the trustee under any “rabbi trust” or similar arrangement; (ii) benefit under any Benefit Plan applicable to the Live Earth Companies being established or becoming accelerated, vested or payable; or (iii) payment or series of payments by any Live Earth Company, directly or indirectly, to any Person that would constitute a “parachute payment” within the 11 meaning of Section 280G of the Code (other than as set forth under Section 3.17 of the Live Earth Disclosure Schedule). (e) No Live Earth Company provides any material post-retirement medical, health, disability or death protection coverage or contribute to or maintain any employee welfare benefit plan which provides for medical, health, disability or death benefit coverage following termination of employment by any officer, director or employee except as is required by Section 4980B(f) of the Code or other applicable statute, nor has any Live Earth Company made any representations, agreements, covenants or commitments to provide that coverage. (f) With respect to any Welfare Plan applicable to the Live Earth Companies, (i) each such Welfare Plan that is a group health plan, as such term is defined in Section 5000(b)(1) of the Code, complies in all material respects with any applicable requirements of Part 6 of Title I of ERISA and Section 4980B(f) of the Code and (ii) each such Welfare Benefit Plan (including any such plan Plan covering retirees or other former employees) may be amended or terminated without liability that would have a Company Material Adverse Effect. The execution of, and performance of the transactions contemplated in, this Agreement will not (either alone or upon the occurrence of any additional or subsequent events) (i) constitute an event under any Benefit Plan that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to health benefits without material liability any employee of the Company, or (ii) result in the triggering or imposition of any restrictions or limitations on the right of the Company or Parent to cause any Live Earth Company on or at any time after the Closing Date. (g) All contributions by any Live Earth Company required by law or by a collective bargaining or other agreement such Benefit Plan to be amended or terminated (or which would result in any materially adverse consequence for so doing). No payment or benefit that will or may be made under by the Company, Parent, or any Pension Plan, Welfare Plan of their respective subsidiaries or Benefit Plan affiliates with respect to all periods through any employee of the Closing Date, including a pro rata share of contributions due for the current plan year, will have been made by such date. (h) No Live Earth Company has, nor will under any Live Earth Company have, any liability or obligation for taxes, penalties, contributions, losses, claims, damages, judgments, settlement costs, expenses, costs, or any other liability or liabilities of any nature whatsoever arising out of or in any manner relating to any Pension Plan, Welfare Plan or Benefit Plan (including but not limited to employee benefit plans such in connection with the Merger will be characterized as foreign plans which are not subject to ERISA), that has been, or is, contributed to by any entity, whether or not incorporated, which is deemed to be under common control (as defined in an "excess parachute payment," within the meaning of Section 414 280G(b)(1) of the Code). For purposes of Section 2.7 (n) and this Section 2.10, with any such Live Earth Company.the following defined terms shall apply: