Common use of Employee Benefit Plans and Contracts Clause in Contracts

Employee Benefit Plans and Contracts. (a) The Parent Disclosure Schedule identifies each "employee benefit plan," as defined in Section 1002(3) of ERISA, and all other material written or formal plans or agreements involving direct or indirect compensation (including any employment agreements entered into between Parent and any Employee of Parent, but excluding workers' compensation, unemployment compensation, other government-mandated programs and Parent's salary and wage arrangements) currently or previously maintained, contributed to or entered into by Parent or any ERISA Affiliate thereof for the benefit of any Employee or former Employee under which Parent or any ERISA Affiliate thereof has any present or future obligation or liability (the "Employee Plans"). Parent has provided to the Company true and complete copies of all Employee Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof. For purposes of the preceding sentence, "ERISA Affiliate" shall mean any entity which is a member of (A) a "controlled group of corporations," as defined in Section 414(b) of the Code, (B) a group of entities under "common control," as defined in Section 414(c) of the Code or (C) an "affiliated service group," as defined in Section 414(m) of the Code or treasury regulations promulgated under Section 414(o) of the Code, any of which includes Parent. Any Employee Plans which individually or collectively would constitute an "employee pension benefit plan," as defined in Section 3(2) of ERISA, but which are not Multiemployer Plans (collectively, the "Pension Plans"), are identified as such in the Parent Disclosure Schedule.

Employee Benefit Plans and Contracts. (ai) The Parent Section 2.1(t) of the Seller Disclosure Schedule identifies each "employee benefit plan," ", as defined in Section 1002(33(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other material written or formal plans or agreements involving direct or indirect compensation (including any employment agreements entered into between Parent the Seller and any Employee of ParentEmployee, but excluding workers' compensation, unemployment compensation, other government-mandated programs and Parentthe Seller's salary and wage arrangements) currently or previously maintained, contributed to or entered into by Parent the Seller or any ERISA Affiliate thereof for the benefit of any Employee or former Employee under which Parent the Seller or any ERISA Affiliate thereof has any present or future material obligation or liability (the "Employee Plans"). Parent Neither the Company nor the Seller has provided nay Employee Plans. The Seller has made available to the Company Buyer true and complete copies of all Employee Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof. For purposes of the preceding sentence, "ERISA Affiliate" shall mean any entity which is a member of (A) a "controlled group of corporations," ", as defined in Section 414(b) of the Code, (B) a group of entities under "common control," ", as defined in Section 414(c) of the Code or (C) an "affiliated service group," ", as defined in Section 414(m) of the Code or treasury regulations promulgated under Section 414(o) of the Code, any of which includes Parentthe Seller. Any Employee Plans which that individually or collectively would constitute an "employee pension benefit plan," ", as defined in Section 3(2) of ERISA, but which are not Multiemployer Plans (collectively, the "Pension Plans"), are identified as such in the Parent Seller Disclosure Schedule. For purposes of Section 2.1(t), "Employee" means any common law employee, consultant or officer of the Seller. (ii) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to the date hereof, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. The Seller has made available to the Buyer copies of the most recently filed Internal Revenue Service Form 5500, the most recent annual or periodic accounting of plan assets and provided the Buyer with copies of the most recent Internal Revenue Service determination letters with respect to any such Employee Plan. Each Employee Plan has been maintained substantially in compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including, without limitation, ERISA and the Code, which are applicable to such Employee Plans. (iii) Except as set forth in Section 2.1(t) of the Seller Disclosure Schedule, no Employee Plan constitutes or since the enactment of ERISA has constituted a "multiemployer plan", as defined in Section 3(37) of ERISA (a "Multiemployer Plan"), (B) a plan covered under Title IV of ERISA, or (C) a "multiple employer plan," as defined in Section 413(c) of the Code. The Seller has not within the past five years incurred any material liability under Title IV of ERISA arising in connection with the termination of any Pension Plan or the complete or partial withdrawal from any Multiemployer Plan. Except as disclosed in Schedule 2.1 (t) of the Seller Disclosure Schedule, if a "complete withdrawal" by the Seller were to occur as of the Closing with respect to all Multiemployer Plans, the Seller would not incur any withdrawal liability under Title IV of ERISA. (iv) Section 2.1(t) of the Seller Disclosure Schedule lists each employment, severance or other similar contract, arrangement or policy and each plan or arrangement (written or oral) providing for insurance coverage (including any self-insured arrangements), workers' benefits, vacation benefits, retirement benefits, deferred compensation, profit-sharing, bonuses, options or other forms of incentive compensation or post-retirement insurance, compensation or benefits which (A) is not an Employee Plan, (B) is entered into, maintained or contributed to, as the case may be, by the Seller on behalf of any Employee, (C) covers any Employee or former Employee, and (D) under which the Seller or any ERISA Affiliate has any present or future obligation or liability (excluding workers' compensation, unemployment compensation or other government-mandated programs and the Seller's salary and wage arrangements). Such contracts, plans and arrangements as are described above, are hereinafter referred to collectively as the "Benefit Arrangements". Each Benefit Arrangement has been maintained in substantial compliance with its terms and with the requirements prescribed by any and all material laws, statutes, rules, regulations, orders and judgments which are applicable to such Benefit Arrangements. (v) Each Employee Plan which is a "group health plan" (as defined in Section 5000 of the Code) has to the extent applicable been maintained in compliance with Section 4980B of the Code and Title I, Subtitle B, Part 6 of ERISA, and no tax payable on account of Section 4980B of the Code has been or is expected to be incurred with respect to any current or former Employees of the Seller. (vi) All contributions due and payable on or before the Closing Date in respect of any Employee Plan or Benefit Arrangement have been made in full and proper form, or adequate accruals have been provided for in the Seller Unaudited Financial Statements for all other contributions or amounts in respect of the Employee Plans or Benefit Arrangements for periods ending on the Closing Date. (vii) Except as required by Section 4980B of the Code and Section 601 of ERISA, no Employee Plan or Benefit Arrangement currently or previously maintained by the Seller or its ERISA Affiliates provides any post-retirement health or life insurance benefits, and neither the Seller nor its ERISA Affiliates maintains any obligations to provide any post-retirement benefits in the future. (viii) The consummation of the transactions contemplated by this Agreement will not (A) entitle any individual to severance or separation pay, or (B) except as set forth in the Section 2.1(q)(viii) of the Seller Disclosure Schedule, accelerate the time of payment or vesting, or increase the amount, of compensation due to any individual. No payment made or contemplated under any Employee Plan or Benefit Arrangement constitutes an "excess parachute payment" within the meaning of Section 280G of the Code. (ix) Except as set forth in Section 2.1(t)(ix) of the Seller Disclosure Schedule, with respect to each Employee Plan and Benefit Arrangement: (A) no breach of fiduciary duty has occurred with respect to which the Seller or any such plan or arrangement may be liable or otherwise materially damaged; (B) no disputes are pending or, to the best knowledge of the Seller and each of the Partners, threatened; (C) no prohibited transaction has occurred with respect to which the Seller or any such plan or arrangement may be liable or otherwise materially damaged; (D) the Seller has expressly reserved in itself the right to amend, modify or terminate any such written plan or arrangement, or any portion of it; and (E) the Seller has satisfied any bond coverage requirement of ERISA.

Employee Benefit Plans and Contracts. (ai) The Parent Section 2.3(t) of the Purchaser Disclosure Schedule identifies each "employee benefit plan," as defined in Section 1002(33(3) of ERISA, and all other material written or formal plans or agreements involving direct or indirect compensation (including any employment agreements entered into between Parent the Purchaser, any Purchaser Subsidiary and any Purchaser Employee of Parent(as defined herein), but excluding workers' compensation, unemployment compensation, other government-mandated programs and Parentthe Purchaser's and each Purchaser Subsidiary's salary and wage arrangements) currently or previously maintained, contributed to or entered into by Parent the Purchaser or any Purchaser Subsidiary or any ERISA Affiliate thereof for the benefit of any Employee or former Employee under which Parent or any ERISA Affiliate thereof has any present or future obligation or liability (the "Employee PlansPURCHASER EMPLOYEE PLANS"). Parent The Purchaser and each Purchaser Subsidiary has provided made available to the Company true and complete copies of all Purchaser Employee Plans (and, if applicable, related trust agreements) and ), all amendments thereto thereto, and summary plan descriptions for all Employee Plans and written interpretations thereofof all of the foregoing. For purposes of the preceding sentence, "ERISA AffiliateAFFILIATE" shall mean any entity which is a member of (A) a "controlled group of corporations," ", as defined in Section 414(b) of the Code, (B) a group of entities under "common control," ", as defined in Section 414(c) of the Code or (C) an "affiliated service group," ", as defined in Section 414(m) of the Code or treasury regulations promulgated under Section 414(o) of the Code, any of which includes Parentthe Purchaser or (D) any Purchaser Subsidiary. Any Employee Plans which that individually or collectively would constitute an "employee pension benefit plan," ", as defined in Section 3(2) of ERISA, but which are not Multiemployer Plans multiemployer plans (as defined in Section 2.3(t)(iii)) (collectively, the "Pension PlansPURCHASER PENSION PLANS"), are identified as such in the Parent Purchaser Disclosure Schedule. For purposes of this Section 2.3(t), "PURCHASER EMPLOYEE" means any common law employee, consultant or director of the Purchaser or any Purchaser Subsidiary. (ii) Each Purchaser Employee Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and has been so qualified during the period from its adoption to the date hereof, and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. The Purchaser has provided the Company with copies of the most recent Internal Revenue Service determination letters, IRS Forms 5500 (including schedules and attachments), and consolidated statements of assets and liabilities prepared in accordance with GAAP, with respect to any Purchaser Employee Plans. Each Purchaser Employee Plan has been maintained in material compliance with its terms and with the requirements prescribed by any and all statutes, orders, rules and regulations, including, without limitation, ERISA and the Code, which are applicable to such Purchaser Employee Plans. All filings required to be filed as of the date hereof with respect to each Purchaser Employee Plan, including, without limitation, filings of IRS Form 5500, have been made timely, accurately and with the appropriate government agency. (iii) No Purchaser Employee Plan is a "multiemployer plan" as defined in Section 4001(a)(13) of ERISA, a "multiple employer plan" as defined in Section 413(c) of the Code, a "defined benefit plan" as defined in Section 3(35) of ERISA, or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and neither the Purchaser nor any ERISA Affiliate has ever maintained, sponsored, participated in or contributed to any such plan, or has incurred any Liability with respect to Section 412 of the Code or Title IV of ERISA, including Sections 4062, 4063 or 4201 of ERISA. (iv) Section 2.3(t) of the Purchaser Disclosure Schedule lists each employment, severance or other similar contract, arrangement or policy and each plan or arrangement (written or oral) providing for insurance coverage (including any self-insured arrangements), vacation benefits, retirement benefits, deferred compensation, profit-sharing, bonuses, stock options, stock appreciation or other forms of incentive compensation or post-retirement insurance, compensation or benefits which (A) is not an Purchaser Employee Plan, (B) is entered into, maintained or contributed to, as the case may be, by the Purchaser or any Purchaser Subsidiary on behalf of any Purchaser Employee, (C) covers any Purchaser Employee or former Purchaser Employee, and (D) under which the Purchaser or any ERISA Affiliate has any present or future obligation or Liability (excluding workers' compensation, unemployment compensation or other government-mandated programs and the Purchaser's or any Purchaser Subsidiary's salary and wage arrangements). Such contracts, plans and arrangements as are described above, are hereinafter referred to collectively as the "PURCHASER BENEFIT ARRANGEMENTS". Each Purchaser Benefit Arrangement has been maintained in material compliance with its terms and with the requirements prescribed by any and all material laws, statutes, rules, 36 regulations, orders and judgments which are applicable to such Purchaser Benefit Arrangements. (v) Each Purchaser Employee Plan which is a "group health plan" (as defined in Section 5000 of the Code) (A) has been maintained in compliance with Section 4980B of the Code and Title I, Subtitle B, Part 6 of ERISA, and no tax payable on account of Section 4980B of the Code has been or is expected to be incurred with respect to any current or former Purchaser Employees of the Purchaser or any Purchaser Subsidiary, and (B) has been maintained in compliance with the Health Insurance Portability and Accountability Act of 1996, as amended. No such plan has reserves, assets or prepaid premiums. (vi) All contributions due and payable on or before the Closing Date in respect of any Purchaser Employee Plan or Purchaser Benefit Arrangement have been made in full and proper form, or adequate accruals have been provided for in the Purchaser Financial Statements for all other contributions or amounts in respect of the Purchaser Employee Plans or Benefit Arrangements for periods ending on the Closing Date, for which payment is due after the Closing Date. (vii) No Purchaser Employee Plan or Purchaser Benefit Arrangement currently or previously maintained by the Purchaser or its ERISA Affiliates provides any post-retirement health or life insurance benefits, and neither the Purchaser nor its ERISA Affiliates maintains any obligations to provide any post-retirement benefits in the future. (viii) The consummation of the transactions contemplated by this Agreement will not (A) entitle any individual to severance or separation pay, or (B) except as set forth in the Section 2.3(t)(viii) of the Purchaser Disclosure Schedule, accelerate the time of payment or vesting, or increase the amount, of compensation due to any individual. No payment made or contemplated under any Purchaser Employee Plan or Benefit Arrangement constitutes an "excess parachute payment" within the meaning of Section 280G of the Code. (ix) Except as set forth in Section 2.3(t)(ix) of the Purchaser Disclosure Schedule, with respect to each Purchaser Employee Plan and Benefit Arrangement: (A) to the knowledge of the Purchaser, no breach of fiduciary duty has occurred with respect to which the Purchaser or any Purchaser Subsidiary or any such plan or arrangement or any fiduciary thereof may be liable or otherwise materially damaged; (B) no disputes, claims (other than routine claims for benefits), actions or investigations are pending or, to the knowledge of the Purchaser, threatened; (C) to the knowledge of the Purchaser, no prohibited transaction has occurred with respect to which the Purchaser, any Purchaser Subsidiary or any such plan or arrangement or any fiduciary thereof could reasonably be liable or otherwise materially damaged; (D) the Purchaser and each Purchaser Subsidiary has expressly reserved in itself the right to amend, modify or terminate any such written plan or arrangement, or any portion of it; and (E) the Purchaser and each Purchaser Subsidiary has satisfied any bond coverage requirement of ERISA. (x) No event has occurred or condition exists, with respect to any Purchaser Employee Plan, that has subjected or could reasonably subject the Purchaser or any ERISA Affiliate (by virtue of the transactions contemplated hereby), the Company, or any Purchaser Employee Plan to any material tax, fine, penalty or other Liability. (xi) The Purchaser and each Purchaser Subsidiary is, to the extent applicable, in material compliance with all laws similar to ERISA of non-United States jurisdictions.

Employee Benefit Plans and Contracts. (ai) The Parent Section 2.1 (t) of the Company Disclosure Schedule identifies each "employee benefit plan," as defined in Section 1002(33(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other material written or formal plans or agreements involving direct or indirect compensation (including any employment agreements entered into between Parent the Company and any Employee of Parent(as defined herein), but excluding workers' compensation, unemployment compensation, other government-mandated programs and Parentthe Company's salary and wage arrangements) currently or previously maintained, contributed to or entered into by Parent the Company or any ERISA Affiliate thereof for the benefit of any Employee or former Employee under which Parent or any ERISA Affiliate thereof has any present or future obligation or liability (the "Employee Plans"). Parent The Company has provided made available to the Company Purchaser true and complete copies of all Employee Plans (and, if applicable, related trust agreements) and ), all amendments thereto thereto, summary plan descriptions for all Employee Plans and written interpretations thereofof all of the foregoing. For purposes of the preceding sentence, "ERISA Affiliate" shall mean any entity which is a member of (A) a "controlled group of corporations," ", as defined in Section 414(b) of the Code, (B) a group of entities under "common control," ", as defined in Section 414(c) of the Code or (C) an "affiliated service group," ", as defined in Section 414(m) of the Code or treasury regulations promulgated under Section 414(o) of the Code, any of which includes Parentthe Company. Any Employee Plans which that individually or collectively would constitute an "employee pension benefit plan," ", as defined in Section 3(2) of ERISA, but which are not Multiemployer Plans multiemployer plans (as defined in Section 2.1(t)(iii)) (collectively, the "Pension Plans"), are identified as such in the Parent Company Disclosure Schedule. For purposes of this Section 2.1(t), "Employee" means any common law employee, consultant or director of the Company.

Employee Benefit Plans and Contracts. (ai) The Parent Target Disclosure Schedule identifies each "employee benefit plan," ", as defined in Section 1002(33(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all other material written ----- or formal plans or agreements involving direct or indirect compensation (including any employment agreements entered into between Parent Target or any Target Subsidiary and any Employee of ParentTarget or any Target Subsidiary, but excluding workers' compensation, unemployment compensation, other government-mandated programs and Parent's the salary and wage arrangements) currently or previously maintained, contributed to or entered into by Parent Target or any ERISA Affiliate thereof for the benefit of any Employee or former Employee under which Parent Target or any ERISA Affiliate thereof has any present or future obligation or liability (the "Employee Plans"). Target -------------- has made available to Parent has provided to the Company true and complete copies of all Employee Plans (and, if applicable, related trust agreements) and all amendments thereto and written interpretations thereof. For purposes of the preceding sentence, "ERISA Affiliate" shall mean any entity which is a member of (A) --------------- a "controlled group of corporations," ", as defined in Section 414(b) of the Code, (B) a group of entities under "common control," ", as defined in Section 414(c) of the Code or (C) an "affiliated service group," ", as defined in Section 414(m) of the Code or treasury regulations promulgated under Section 414(o) of the Code, any of which includes ParentTarget. Any Employee Plans which individually or collectively would constitute an "employee pension benefit plan," ", as defined in Section 3(2) of ERISA, but which are not Multiemployer Plans (collectively, the "Pension Plans"), are identified ------------- as such in the Parent Target Disclosure Schedule.. For purposes of this Section 3.1(v), "Employee" means any common law employee, consultant or director of -------- Target or any Target Subsidiary. -------------------------------