Common use of Benefit Plans; ERISA Clause in Contracts

Benefit Plans; ERISA. No Borrower or any Related Company maintains or contributes to any Benefit Plan other than those listed on Schedule 6.1(o). Each Benefit Plan is in substantial compliance with ERISA to the extent that ERISA is applicable, and no Borrower or any Related Company has received any notice asserting that a Benefit Plan is not in compliance with ERISA. No material liability to the PBGC or to a Multiemployer Plan has been, or is expected by any Borrower to be, incurred by such Borrower or any Related Company. Copies of all such listed Benefit Plans, together with a copy of the latest form 5500 (if any) for each such Benefit Plan, have been delivered to Agent. No Borrower or any Related Company has failed to make any contribution or pay any amount due as required by either Section 412 of the Code or Section 302 of ERISA or the terms of any such Benefit Plan. No Borrower or any Related Company has engaged in a prohibited transaction, as defined in Section 4975 of the Code, in connection with any Benefit Plan, which would subject such Borrower to a material tax on prohibited transactions imposed by Section 4975 of the Code. Except as set forth in Schedule 6.1(o): (i) no Title IV Plan has any Unfunded Vested Accrued Benefits; (ii) no ERISA Event or event described in Section 4062(e) of ERISA with respect to any Title IV Plan has occurred or is reasonably expected to occur; (iii) there are no pending, or to the knowledge of any Borrower, threatened claims (other than claims for benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against any Benefit Plan or any Person as fiduciary or sponsor of any Benefit Plan; (iv) no Borrower or any Related Company has incurred or reasonably expects to incur any liability as a result of a complete or partial withdrawal from a Multiemployer Plan; (v) within the last five years no Title IV Plan with Unfunded Vested Accrued Benefits has been transferred outside of the "controlled group" (within the meaning of Section 4001(a)(14) of ERISA) of such Borrower or any Related Company; and (vi) no liability under any Title IV Plan has been satisfied with the purchase of a contract from an insurance company that is not rated AAA by the Standard & Poor's Corporation or the equivalent by another nationally recognized rating agency.

Benefit Plans; ERISA. No Borrower or any Related Company maintains or contributes to any (a) All Benefit Plan other than those Plans are listed on in Schedule 6.1(o). Each Benefit Plan is in substantial compliance with ERISA to the extent that ERISA is applicable3.13, and no Borrower or any Related Company has received any notice asserting that a Benefit Plan is not in compliance with ERISA. No material liability to the PBGC or to a Multiemployer Plan has been, or is expected by any Borrower to be, incurred by such Borrower or any Related Company. Copies copies of all documentation relating to such listed Benefit Plans have been delivered or made available to Harsco (including copies of written Benefit Plans, together written descriptions of oral Benefit Plans, summary plan descriptions, trust agreements, the three most recent annual returns, employee communications, and IRS determination letters). Except as disclosed in Schedule 3.13 hereto: (i) each Benefit Plan has at all times been maintained and administered in all material respects in accordance with a copy its terms and with the requirements of all applicable law, including ERISA and the latest form 5500 (if anyCode, and each Benefit Plan intended to qualify under Section 401(a) for each such Benefit Plan, have been delivered to Agent. No Borrower or any Related Company has failed to make any contribution or pay any amount due as required by either Section 412 of the Code or has at all times since its adoption been so qualified, and each trust which forms a part of any such plan has at all times since its adoption been tax-exempt under Section 501(a) of the Code; (ii) no Benefit Plan has incurred any "accumulated funding deficiency" within the meaning of Section 302 of ERISA or the terms of any such Benefit Plan. No Borrower or any Related Company has engaged in a prohibited transaction, as defined in Section 4975 412 of the Code, in connection with any Benefit Plan, which would subject such Borrower to a material tax on prohibited transactions imposed by Section 4975 of the Code. Except as set forth in Schedule 6.1(o): (i) no Title IV Plan has any Unfunded Vested Accrued Benefits; (iiiii) no ERISA Event or event described in the "amount of unfunded benefit liabilities" within the meaning of Section 4062(e4001(a)(18) of ERISA does not exceed zero with respect to any Benefit Plan subject to Title IV Plan has occurred or is reasonably expected to occur; (iii) there are no pending, or to the knowledge of any Borrower, threatened claims (other than claims for benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against any Benefit Plan or any Person as fiduciary or sponsor of any Benefit PlanERISA; (iv) no Borrower or any Related Company has incurred or reasonably expects to incur any liability as a result of a complete or partial withdrawal from a Multiemployer Plan; (v) within the last five years no Title IV Plan with Unfunded Vested Accrued Benefits has been transferred outside of the "controlled groupreportable event" (within the meaning of Section 4001(a)(14) 4043 of ERISA) of such Borrower has occurred with respect to any Benefit Plan or any Related CompanyPlan maintained by an ERISA Affiliate since the effective date of Section 4043; (v) with respect to each Multiemployer Plan (i) no withdrawal liability has been incurred by the Company or any ERISA Affiliate , and the Company has no reason to believe that any such liability will be incurred, prior to the Closing Date, (ii) no such plan is in "reorganization" (within the meaning of Section 4241 of ERISA), (iii) no notice has been received that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, or that the plan is or may become "insolvent" (within the meaning of Section 4241 of ERISA), (iv) no proceedings have been instituted by the Pension Benefit Guaranty Corporation against the plan, (v) there is no contingent 52 14 liability for withdrawal liability by reason of a sale of assets pursuant to Section 4204 of ERISA, and (vi) except as disclosed in Schedule 3.13, if the Company or any ERISA Affiliate were to have a complete or partial withdrawal under Section 4203 of ERISA as of the Closing, no obligation to pay withdrawal liability would exist on the part of the Company or any ERISA Affiliate; (vi) no direct, contingent or secondary liability has been incurred or is expected to be incurred by the Company under Title IV of ERISA to any party with respect to any Benefit Plan or Multiemployer Plan, or with respect to any other Plan presently or heretofore maintained or contributed to by any ERISA Affiliate; (vii) neither the Company nor any ERISA Affiliate has incurred any liability for any tax imposed under Section 4971 through 4980B of the Code or civil liability under Section 502(i) or (l) of ERISA; (viii) no benefit under any Title IV Plan Benefit Plan, including, without limitation, any severance or parachute payment plan or agreement, will be established or become accelerated, vested or payable by reason of any transaction contemplated under this Agreement; (ix) no tax has been satisfied incurred under Section 511 of the Code with respect to any Benefit Plan (or trust or other funding vehicle pursuant thereto); (x) no Benefit Plan provides health or death benefit coverage beyond the purchase termination of an employee's employment, except as required by Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or any State laws requiring continuation of benefits coverage following termination of employment; (xi) no suit, actions or other litigation (excluding claims for benefits incurred in the ordinary course of plan activities) have been brought or, to the knowledge of the Company, threatened against or with respect to any Benefit Plan and there are no facts or circumstances known to the Company that could reasonably be expected to give rise to any such suit, action or other litigation; and (xii) all contributions to Benefit Plans and Multiemployer Plans that were required to be made under such Benefit Plans have been made, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved in accordance with GAAP, all of which accruals under unfunded Benefit Plans are as disclosed in Schedule 3.13, and the Company has performed all material obligations required to be performed under all Benefit Plans. (b) Except as set forth in Schedule 3.13 hereto, neither the execution and delivery of this Agreement nor the consummation of the transaction contemplated hereby constitutes a change of control or has or will accelerate benefits under any Benefit Plan. (c) As used herein: (i) "Benefit Plan" means any Plan, existing at the Closing Date or prior thereto, established or to which contributions have at any time been made by the Company, or any predecessor of the foregoing, or under which any employee, former employee or director of the Company or any beneficiary thereof is covered, is eligible for coverage or has benefit rights. (ii) "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder. (iii) "ERISA Affiliate" means any business entity which is, or at any time was, a member of a contract from controlled group (within the meaning of Section 412(n)(6) of the Code) that includes, or at any time included, the Company or any predecessor of the foregoing. (iv) "Multiemployer Plan" means a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA with respect to which the Company or any ERISA Affiliate has an insurance company that is obligation to contribute or has or could have withdrawal liability under Section 4201 of ERISA. (v) "Plan" means any bonus, incentive compensation, deferred compensation, pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom 53 15 stock, leave of absence, layoff, vacation, day or dependent care, legal services, cafeteria, life, health, accident, disability, workmen's compensation or other insurance, severance, separation or other employee benefit plan, practice, policy or arrangement of any kind, whether written or oral, or whether for the benefit of a single individual or more than one individual including, but not rated AAA by limited to, any "employee benefit plan" within the Standard & Poor's Corporation or the equivalent by another nationally recognized rating agency.meaning of Section 3(3) of ERISA. 3.14

Benefit Plans; ERISA. No Borrower All Benefit Plans are listed in Section 2N of the Disclosure Letter, and copies of all documentation relating to such Benefit Plans (including all plan and trust documents, written descriptions of plans, actuarial reports and governmental filings and determinations with respect to such Benefit Plans) have been made available to Purchaser. Except as disclosed in Section 2N of the Disclosure Letter: (i) each Benefit Plan has been maintained, funded and administered in accordance with its terms, and each Benefit Plan and the administration thereof complies, and has at all times complied in all material respects, with the requirements of all applicable Law, including ERISA and the Code; (ii) each Benefit Plan intended to qualify under Section 401(a) of the Code and each trust that forms a part of any such Benefit Plan either has received a determination letter from the Internal Revenue Service stating that such Benefit Plan qualifies under Section 401(a) of the Code and such trust is tax-exempt under Section 501(a) of the Code or is a prototype plan, and there are no facts or circumstances known to the Company or any Related Company maintains Subsidiary that would cause any such Benefit Plan and related trust not to continue to be so qualified and tax-exempt; (iii) each of the Company, any Subsidiary and any ERISA Affiliate has complied in all material respects with Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code, and any similar state Law (“COBRA”); (iv) none of the Company, any Subsidiary or any ERISA Affiliate currently maintains, contributes to or has any obligation with respect to or has, within the past six years, maintained, or contributed to, or had any obligation with respect to any “defined benefit plan” (as defined in Section 3(35) of ERISA) or any “multiemployer plan” (as defined in Section 3(37) of ERISA) ; (v) no material Tax has been incurred under Section 511 of the Code with respect to any Benefit Plan (or trust or other than those listed on Schedule 6.1(ofunding vehicle pursuant thereto). Each Benefit Plan is in substantial compliance with ERISA to ; (vi) none of the extent that ERISA is applicableCompany, and no Borrower any Subsidiary or any Related Company ERISA Affiliate has received any notice asserting that a Benefit Plan is not in compliance with Liability or potential Liability under Title IV of ERISA. No material liability to ; (vii) none of the PBGC Company, any Subsidiary or to a Multiemployer Plan any ERISA Affiliate has beenincurred, or is expected by reasonably expects to incur, any Borrower to be, incurred by such Borrower or material Liability for any Related Company. Copies of all such listed Benefit Plans, together with a copy of the latest form 5500 (if any) for each such Benefit Plan, have been delivered to Agent. No Borrower or any Related Company has failed to make any contribution or pay any amount due as required by either Section 412 Tax imposed under Sections 4971 through 4980B of the Code or civil Liability under Section 302 502(i) or (l) of ERISA or the terms of any such Benefit Plan. No Borrower or any Related Company has engaged in a prohibited transaction, as defined in Section 4975 of the Code, in connection with ERISA; (viii) no benefit under any Benefit Plan, which would subject such Borrower to a material tax on prohibited transactions imposed including any severance or parachute payment plan or agreement, will be established or become accelerated, vested or payable by Section 4975 reason of the Code. Except as set forth in Schedule 6.1(o): any transaction contemplated under this Agreement; (iix) no Title IV Benefit Plan has any Unfunded Vested Accrued Benefitsprovides health or death or other welfare benefit coverage beyond the termination of an employee’s employment, except as required by COBRA; (iix) no ERISA Event suit, actions or event described other litigation (excluding claims for benefits incurred in Section 4062(ethe ordinary course of plan activities) of ERISA have been brought against or with respect to any Title IV Benefit Plan has occurred or is reasonably expected to occur; (iii) and there are no pendingfacts or circumstances known to the Company or any Subsidiary that could reasonably be expected to give rise to any such suit, action or other litigation; (xi) all contributions to Benefit Plans that were required to be made under such Benefit Plans have been made as of the Closing Date, and all benefits accrued under any unfunded Benefit Plan will have been paid, accrued or otherwise adequately reserved in accordance with GAAP as of such date, all of which accruals under unfunded Benefit Plans are as disclosed in Section 2N of the Disclosure Letter, and the Company, each Subsidiary and each ERISA Affiliate have performed all material obligations required to be performed as of the Closing Date under all Benefit Plans; and (xii) for all purposes under applicable Law, including ERISA and the Code, all independent contractors who are, or to the knowledge of any Borrower, threatened claims (other than claims for benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against any Benefit Plan or any Person as fiduciary or sponsor of any Benefit Plan; (iv) no Borrower or any Related Company has incurred or reasonably expects to incur any liability as a result of a complete or partial withdrawal from a Multiemployer Plan; (v) within the last five six years no Title IV Plan with Unfunded Vested Accrued Benefits has been transferred outside have been, engaged by the Company or any Subsidiary are bona fide independent contractors and not employees of the "controlled group" (within the meaning of Section 4001(a)(14) of ERISA) of such Borrower Company or any Related Company; and (vi) no liability under any Title IV Plan has been satisfied with the purchase of a contract from an insurance company that is not rated AAA by the Standard & Poor's Corporation or the equivalent by another nationally recognized rating agencySubsidiary.

Benefit Plans; ERISA. No Borrower Each "employee benefit plan" (as defined in Section 3 (3) of ERISA), bonus, deferred compensation, stock option, stock purchase or other equity compensation plan, program or arrangement, each employment, termination or severance agreement or plan, incentive compensation or other agreement whether written or oral relating to employment or fringe benefits for employees, former employees, officers or directors of Delta or any Related Company maintains of its Subsidiaries, maintained or contributes contributed to by Delta of any Benefit of its Subsidiaries at any time during the 7-calendar year period immediately preceding the Closing Date (collectively, the "Plans") is listed at Section 4.15 of the Disclosure Schedule, attached hereto, and except as disclosed at Section 4.15 of the Disclosure Schedule, is in material compliance with applicable Law and has been administered and operated in all material respects in accordance with such applicable Law and the terms of the Plan. No Plan is or has been covered by Section 302 or Title IV of ERISA or is or has been subject to the minimum funding requirements of Section 412 of the Code. Each Plan which is intended to be "qualified" within the meaning of Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service and no event has occurred and no condition exists which could reasonably be expected to result in the revocation of any such determination. All trusts maintained under the Plans are exempt from taxation under Section 501(a) of the Code. Full payment has been made of all amounts which Delta or any of its Subsidiaries were required under the terms of the Plans to have paid as contributions to such Plans on or prior to the date hereof (excluding any amounts not yet due). Neither Delta nor any of its Subsidiaries nor any other "disqualified person" or "party in interest" (as defined in Section 4975(e)(2) of the Code and Section 3 (14) of ERISA, respectively) has engaged in any transaction in connection with any Plan that could reasonably be expected to result in the imposition of a penalty pursuant to Section 409 of ERISA or a Tax pursuant to Section 4975(a) of the Code. No Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of the Acquired Companies or any Subsidiary for periods extending beyond their retirement or other termination of service, other than those listed on Schedule 6.1(o(i) coverage mandated by applicable Law, (ii) death benefits under any "pension plan," or (iii) benefits the full cost of which is borne by the current or former employee (or his beneficiary). Each Benefit Plan is in substantial compliance with ERISA subject to the extent that requirements of Section 601 or ERISA has been operated in compliance therewith. Except as listed at Section 4.15 of the Disclosure Schedule, no individual shall accrue or receive additional benefits, services or accelerated rights to payment of benefits as a direct result of the transactions contemplated by this Agreement. No material liability, claim, investigation, audit, action or litigation has been incurred, made, commenced or, to the Knowledge of Delta, is applicablethreatened or anticipated, and no Borrower by or against Delta or any Related Company has received of its Subsidiaries with respect to any notice asserting that a Benefit Plan is not (other than for benefits payable in compliance with the ordinary course). No plan or related trust owns any securities in violation of Section 407 of ERISA. No material liability to the PBGC or to a Multiemployer Plan has been, or is could reasonably be expected by any Borrower to be, incurred by such Borrower under Title IV of ERISA (other than for benefits payable in the ordinary course of PBGC insurance premiums) or any Related Company. Copies of all such listed Benefit Plans, together with a copy of the latest form 5500 Section 412(f) or (if anyn) for each such Benefit Plan, have been delivered to Agent. No Borrower or any Related Company has failed to make any contribution or pay any amount due as required by either Section 412 of the Code by any entity required to be aggregated with Delta or any of its Subsidiaries pursuant to Section 302 4001 (b) of ERISA and/or Section 414(b) or (c) of the terms of Code (and the regulations promulgated thereunder) with respect to any such Benefit Plan. No Borrower or any Related Company has engaged in a prohibited transaction, "employee pension benefit plan" (as defined in Section 4975 3(2) of ERISA) which is not a Plan. With respect to each Plan, Delta has delivered or caused to be delivered to Acquiror and its counsel true and complete copies of the Codefollowing documents, in connection with any Benefit as applicable, for each respective Plan, which would subject such Borrower to a material tax on prohibited transactions imposed by Section 4975 of the Code. Except as set forth in Schedule 6.1(o): : (i) no Title IV all Plan has any Unfunded Vested Accrued Benefitsdocuments, with all amendments thereto or, if the Plan is not a written Plan, a description thereof; (ii) no ERISA Event or event described in Section 4062(e) the current summary plan description with any applicable summaries of ERISA with respect to material modifications thereto as well as any Title IV Plan has occurred or is reasonably expected to occurother material employee communications; (iii) there are no pending, or to the knowledge of any Borrower, threatened claims (all current trust agreements and/or other than claims for benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against any Benefit documents establishing Plan or any Person as fiduciary or sponsor of any Benefit Planfunding arrangements; (iv) no Borrower or any Related Company the most recent Internal Revenue Service determination letter and, if a request for such a letter has incurred or reasonably expects to incur any liability as been filed and is currently pending with the Internal Revenue Service, a result copy of a complete or partial withdrawal from a Multiemployer Plansuch filing; (v) within the last five years no Title IV Plan with Unfunded Vested Accrued Benefits has been transferred outside of three most recently prepared Internal Revenue Service Forms 5500; (vi) the "controlled group" (within the meaning of Section 4001(a)(14) of ERISA) of such Borrower or any Related Companymost recently prepared financial statements; and (vivii) no liability under all material related to contracts, service provider agreements and investment management and investment advisory agreements. Prior to 1997, Delta was exempt from any Title IV Plan has been satisfied with the purchase of a contract from an insurance company that is not rated AAA by the Standard & Poor's Corporation or the equivalent by another nationally recognized rating agencyrequirement to prepare audited financial statements for any Plan.

Benefit Plans; ERISA. No Borrower Schedule 4.17 of the Disclosure Schedule contains a list of all Benefit Plans maintained by the Sellers or any Related Company maintains or contributes to any Benefit Plan other than those listed on Schedule 6.1(othe Xxxxxxxx Islands Subsidiaries (the “Employee Plans”). Each Benefit Plan is The Sellers and the Xxxxxxxx Islands Subsidiaries have complied in substantial compliance all material respects with ERISA to the extent that ERISA is applicable, and no Borrower or any Related Company has received any notice asserting that a Benefit Plan is not in compliance with ERISA. No material liability to the PBGC or to a Multiemployer Plan has been, or is expected by any Borrower to be, incurred by such Borrower or any Related Company. Copies provisions of all such listed Benefit Plans, together with a copy of the latest form 5500 (if any) for each such Benefit Plan, have been delivered to Agent. No Borrower or any Related Company has failed to make any contribution or pay any amount due as required by either Section 412 Plan and the applicable provisions of the Code and ERISA, have administered each such Plan in material compliance with the provisions of each such Plan and the applicable requirements of the Code and ERISA, have timely made all required contributions thereto and have not directly or Section 302 indirectly withdrawn or borrowed against any amounts in any such Plan. No Employee Plan is subject to Title IV of ERISA or the terms of any such Benefit Plan. No Borrower or any Related Company has engaged in is a prohibited transaction, as defined in Section 4975 of the Code, in connection with any Benefit Plan, which would subject such Borrower to a material tax on prohibited transactions imposed by Section 4975 of the Code. Except as set forth in Schedule 6.1(o): (i) no Title IV Plan has any Unfunded Vested Accrued Benefits; (ii) no ERISA Event or event described in Section 4062(e) of ERISA with respect to any Title IV Plan has occurred or is reasonably expected to occur; (iii) there are no pending, or to the knowledge of any Borrower, threatened claims (other than claims for benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against any Benefit Plan or any Person as fiduciary or sponsor of any Benefit Plan; (iv) no Borrower or any Related Company has incurred or reasonably expects to incur any liability as a result of a complete or partial withdrawal from a Multiemployer Plan; (v) within the last five years no Title IV Plan with Unfunded Vested Accrued Benefits has been transferred outside of the "controlled group" multiemployer plan (within the meaning of Section 4001(a)(143(37) of ERISA), and neither the Sellers nor any Xxxxxxxx Islands Subsidiary have any liability with respect to any such plan. With respect to each Employee Plan that is intended to be tax-qualified within the meaning of Section 401(a) of such Borrower the Code, a favorable determination or any Related Company; and (vi) no liability under any Title IV Plan opinion letter has been satisfied obtained for such Plan, and such Plan is so qualified. Neither the Sellers nor the Xxxxxxxx Islands Subsidiaries are subject to any obligation to pay or provide retiree or other post-employment medical or other retiree or other post-employment welfare or similar benefits.Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) result in the purchase payment of a contract from any amount that would, individually or in combination with any other such payment, reasonably be expected to constitute an insurance company that is not rated AAA “excess parachute payment,” as defined in Section 280G(b)(1) of the Code. Each “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) of the Seller complies with Section 409A of the Code. Each stock option and stock appreciation right granted by the Standard & Poor's Corporation Seller has been granted with an exercise price no lower than “fair market value” (within the meaning of Section 409A of the Code) as of the grant date of such option or the equivalent by another nationally recognized rating agencystock appreciation right.