Common use of Employee Pension Benefit Plans Clause in Contracts

Employee Pension Benefit Plans. Except as set forth in SCHEDULE 3.10, none of the Company, the Subsidiaries, or any Person required to be aggregated with the Company and the Subsidiaries under Section 414(b), (c), (m), or (o) of the Code ("ERISA AFFILIATE"), maintains or has ever maintained an Employee Pension Benefit Plan as defined in Section 3(2) of ERISA, that is subject to Section 412 of the Code and Section 302 of ERISA. With respect to each such Employee Pension Benefit Plan maintained or ever maintained by the Company, by either Subsidiary, or by any ERISA Affiliate: (i) no unsatisfied liabilities to participants, the IRS, the United States Department of Labor, the PBGC, or to any other Person or entity have been incurred as a result of the termination of any Employee Pension Benefit Plan, (ii) no Employee Pension Benefit Plan, which is subject to the minimum funding requirements of Part 3 of Subtitle B of Title I of ERISA or subject to Section 412 of the Code, has incurred any "accumulated funding deficiency" within the meaning of Section 302 of ERISA or Section 412 of the Code and there has been no waived funding deficiency within the meaning of Section 303 of ERISA or Section 412 of the Code, (iii) all premiums to the PBGC have been timely paid in full, and (iv) the PBGC has not instituted proceedings to terminate any such Plan and no condition exists that presents a risk that such proceedings will be instituted or that would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Plan. Neither the Company nor the Subsidiaries currently sponsor, maintain, contribute to, or are required to contribute to an Employee Pension Benefit Plan subject to Title IV of ERISA.

Employee Pension Benefit Plans. Except as set forth disclosed in SCHEDULE 3.10Schedule 3.18(B)(c) hereto, none neither the Company nor any other member of the Company, the SubsidiariesControlled Group directly or indirectly maintains, or any Person required is a party to be aggregated with the Company and the Subsidiaries under Section 414(b), (c), (m)or contributes to, or (o) of the Code ("ERISA AFFILIATE")is obligated to maintain, maintains be a party to or contribute to, or has ever maintained or been a party to or contributed to, any deferred compensation plan or any plan, fund, arrangement or practice, whether formal or informal, whether or not in writing, and whether or not legally binding, that is or may be an Employee Pension Benefit Plan "employee pension benefit plan" (as defined in Section 3(2) of ERISA) or any "multiemployer plan" (as defined in Section 3(37) or 4001(a)(3) of ERISA), that is subject to Section 412 nor has the Company nor any other current or former member of the Code and Section 302 Controlled Group withdrawn from any such multiemployer plan in a complete or partial withdrawal within the meaning of Title IV of ERISA. With respect to each such Employee plan, fund, arrangement or practice listed in Schedule 3.18(B)(c) ("Pension Benefit Plan"): (A) each Pension Plan maintained that is intended to be qualified under Section 401(a) or ever maintained by the Company, by either Subsidiary, or by any ERISA Affiliate: (i403(a) no unsatisfied liabilities to participants, the IRS, the United States Department of Labor, the PBGC, or to any other Person or entity have been incurred as a result of the termination of any Employee Pension Benefit Plan, (ii) no Employee Pension Benefit Plan, Code has received a favorable determination letter which is subject to currently effective, and no fact or circumstance exists or has existed at any time which would adversely affect the minimum funding requirements qualified status of Part 3 of Subtitle B of Title I of ERISA the Pension Plan or subject to Section 412 of any trust through which the Pension Plan is funded; (B) the Pension Plan is, and at all times has been, operated in compliance in all material respects with its governing documents (except as otherwise required by applicable law), ERISA, the Code, all regulations, rulings and announcements promulgated or issued under ERISA and the Code, and all other applicable law, including, without limitation, the reporting and disclosure requirements of ERISA; (C) the Pension Plan has incurred any not suffered an "accumulated funding deficiency" within the meaning of (as defined in Section 302 302(a)(2) of ERISA or Section 412 of the Code and there has been no waived funding deficiency within the meaning of Section 303 of ERISA or Section 412 412(a) of the Code, ) whether or not waived; (iiiD) all premiums to if the PBGC have been timely paid in full, and (iv) the PBGC has not instituted proceedings to terminate any such Pension Plan and no condition exists that presents a risk that such proceedings will be instituted or that would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Plan. Neither the Company nor the Subsidiaries currently sponsor, maintain, contribute to, or are required to contribute to an Employee Pension Benefit Plan is subject to Title IV of ERISA, the present value of all accrued benefits under the Pension Plan does not exceed the present value of the assets of such Pension Plan allocable to such accrued benefits, based upon reasonable actuarial assumptions utilized for the Pension Plan in its most recent actuarial valuation; (E) neither the Company nor any other member of the Controlled Group, nor the Pension Plan, nor, to the Company's and the Shareholders' knowledge, any "party in interest" (as defined in Section 3(14) of ERISA) or "disqualified person" (as defined in Section 4975 of the Code), nor, to the Company's and the Shareholders' knowledge, any fiduciary with respect to the Pension Plan, nor, to the Company's and the Shareholders' knowledge, any other party, has engaged in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) other than a transaction subject to statutory or administrative exemption; (F) if the Pension Plan is subject to Title IV of ERISA, it has not been subject to a "reportable event" (as defined in Section 4043(b) of ERISA), the reporting of which has not been waived by regulation; (G) no termination or partial termination of the Pension Plan within the meaning of Section 4042 of ERISA or Section 411(d)(3) of the Code has occurred, and no condition exists that would constitute grounds for the termination or partial termination of the Pension Plan; (H) all material contributions, premiums and benefit payments required to be made to or on behalf of the Pension Plan by law, contract or the terms of the Pension Plan have been made, and all expenses relating to contributions, premiums or benefit payments due or owing with respect to the Pension Plan have been properly accrued and reflected in the Company's financial statements as of the Closing Date; (I) except for the processing of routine claims in the ordinary course of administration, there is no pending, or to the Company's and the Shareholders' knowledge, anticipated or threatened litigation, arbitration, or claim by or against or otherwise involving the Pension Plan or any fiduciary thereof, nor is there any judgment, decree, injunction, rule or order of any court, governmental body, commission, agency or arbitrator, outstanding against or in favor of or otherwise involving the Pension Plan or any fiduciary thereof in respect of the Pension Plan; (J) if the Pension Plan is subject to Title IV of ERISA, all premiums due to the Pension Benefit Guaranty Corporation ("PBGC") for plan termination insurance have been paid in full on a timely basis, and a variable rate premium was not due as of the most recent premium due date; (K) neither the Company nor any other member of the Controlled Group has incurred or expects to incur, either directly or indirectly, any liability under Title IV of ERISA, including, without limitation, any withdrawal liability within the meaning of Title IV of ERISA with respect to any multiemployer plan (as defined in Section 4001(a)(3) of ERISA), but excluding liability for premiums to the PBGC; (L) the Pension Plan may be amended or terminated by Parent or the Surviving Corporation on or at any time after the Closing Date without material liability to any person; and (M) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder will not result in any material obligation or liability, individually or in the aggregate, of the Company or any other member of the Controlled Group, or of Parent or Sub to the Pension Plan or to any employee, former employee or other person. Neither the Company nor any other member of the Controlled Group maintains an "employee stock ownership plan" (as defined in Section 4975(e)(7) of the Code) or a tax credit employee stock ownership plan (within the meaning of Section 409(a) of the Code). Neither the Company nor any other member of the Controlled Group has any "leased employees" (as defined in Section 414(n) of the Code) who must be taken into account for the requirements of Section 414(n)(3) of the Code. Nothing in this Section 3.18(B) applies to the Employee Programs (as hereinafter defined in Section 3.18(C).

Employee Pension Benefit Plans. Except as set forth disclosed in SCHEDULE 3.103.18(C)(III) hereto, none neither the Company nor any other member of the Company, the SubsidiariesControlled Group directly or indirectly maintains, or any Person required is a party to be aggregated with the Company and the Subsidiaries under Section 414(b), (c), (m)or contributes to, or (o) of the Code ("ERISA AFFILIATE")is obligated to maintain, maintains be a party to or contribute to, or has ever maintained or been a party to or contributed to, any deferred compensation plan or any plan, fund, arrangement or practice, whether formal or informal, whether or not in writing, and whether or not legally binding, that is or may be an Employee Pension Benefit Plan "employee pension benefit plan" (as defined in Section 3(2) of ERISA) other than a "Multiemployer Plan" (a "multiemployer plan", that as defined in Section 3(37) or 4001(a)(3) of ERISA, which is subject to an "employee pension benefit plan", as defined in Section 412 3(2) of ERISA). Neither any Seller, the Company nor any other current or former member of the Code and Section 302 of ERISA. With respect to each such Employee Pension Benefit Plan maintained Controlled Group sponsors or ever maintained by the Company, by either Subsidiarycontributes to, or by has ever sponsored or contributed to, any ERISA Affiliate: (i) no unsatisfied liabilities to participants"employee pension benefit plan", the IRS, the United States Department of Labor, the PBGC, or to any other Person or entity have been incurred as than a result of the termination of any Employee Pension Benefit Plan, (ii) no Employee Pension Benefit Multiemployer Plan, which is or was subject to the minimum funding requirements Title IV of Part 3 of Subtitle B of Title I of ERISA or subject to Section 412 of the CodeERISA, has incurred any "accumulated funding deficiency" within the meaning of Section 302 of ERISA or Section 412 of the Code. With respect to each plan, fund, arrangement or practice listed in SCHEDULE 3.18(C)(III) ("Pension Plan"), except as disclosed in SCHEDULE 3.18(C)(III) hereto: (A) to the extent required the Pension Plan is, and at all times has been, qualified under Section 401(a) or 403(a) of the Code and there any trust through which the Pension Plan is funded is exempt from federal income tax under Section 501(a) of the Code, and no fact or circumstance exists which would adversely affect the qualified status of the Pension Plan or any trust; (B) the Pension Plan is, and at all times has been, operated in all respects in material compliance with its governing documents (except as otherwise required by applicable law), ERISA, the Code, all regulations, rulings and announcements promulgated or issued under ERISA and the Code, and all other applicable law, including, without limitation, the reporting and disclosure requirements of ERISA; (C) a favorable determination letter under Section 401 or 403(a) of the Code has been issued by the Internal Revenue Service with respect to the Pension Plan and all amendments thereto, and there exists no waived funding deficiency fact or circumstance which would adversely affect such qualification; (D) neither the Company nor any other member of the Controlled Group, nor the Pension Plan, nor, to Sellers' Knowledge, any "party in interest" (as defined in Section 3(14) of ERISA) or "disqualified person" (as defined in Section 4975 of the Code), nor any fiduciary with respect to the Pension Plan, nor any other party, has engaged in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) other than a transaction subject to statutory or administrative exemption; (E) to Sellers' Knowledge, no termination or partial termination of the Pension Plan within the meaning of Section 303 4042 of ERISA or Section 412 411(d)(3) of the CodeCode has occurred, (iii) all premiums to the PBGC have been timely paid in full, and (iv) the PBGC has not instituted proceedings to terminate any such Plan and no condition exists that presents a risk that such proceedings will be instituted or that would constitute grounds under Section 4042 of ERISA for the termination ofor partial termination of the Pension Plan; (F) all contributions, premiums and claim payments required to be made to or on behalf of the Pension Plan by law, contract or the terms of the Pension Plan have been made, and all expenses relating to contributions, premiums or claim payments due or owing with respect to the Pension Plan have been properly accrued and reflected in the Company's financial statements as of the Closing Date; (G) except for the processing of routine claims in the ordinary course of administration, there is no pending, anticipated or, to Sellers' Knowledge, threatened litigation, arbitration, or claim by or against or otherwise involving the appointment Pension Plan or any fiduciary thereof, nor is there any judgment, decree, injunction, rule or order of a trustee any court, governmental body, commission, agency or arbitrator, outstanding against or in favor of or otherwise involving the Pension Plan or any fiduciary thereof in respect of the Pension Plan; (H) to administerSellers' Knowledge, the Pension Plan may be amended or terminated by Buyer on or at any time after the Closing Date and shall, upon any such Planamendment or termination, give rise to no additional benefit obligations other than those which had accrued as of the effective date of the amendment or termination; and (I) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder will not result in any obligation or liability of the Company or any other member of the Controlled Group, or of Buyer to the Pension Plan or to any employee, former employee or other person. Neither the Company nor any other member of the Subsidiaries currently sponsorControlled Group maintains an "employee stock ownership plan" (as defined in Section 4975(e)(7) of the Code) or a tax credit employee stock ownership plan (within the meaning of Section 409(a) of the Code). Except as described in SCHEDULE 3.18(C)(III), maintain, contribute to, or are required to contribute to an Employee Pension Benefit Plan subject to Title IV neither the Company nor any other member of ERISAthe Controlled Group has any "leased employees" (as defined in Section 414(n) of the Code) who must be taken into account for the requirements of Section 414(n)(3) of the Code.

Employee Pension Benefit Plans. Except as set forth in SCHEDULE 3.10Schedule 3.10(b), none of neither the Company, the Subsidiaries, Company or any Person required to be aggregated with the Company and the Subsidiaries under Section 414(b), (c), (m), or (o) of the Code ("“ERISA AFFILIATE"Affiliate”), maintains or has ever maintained an Employee Pension Benefit Plan as defined in Section 3(2) of ERISA, that is subject to Section 412 of the Code and Section 302 of ERISA. With respect to each such Employee Pension Benefit Plan maintained or ever maintained by the Company, by either Subsidiary, Company or by any ERISA Affiliate: (i) no unsatisfied liabilities to participants, the IRS, the United States Department of Labor, the PBGC, or to any other Person or entity have been incurred as a result of the termination of any Employee Pension Benefit Plan, (ii) no Employee Pension Benefit Plan, which is subject to the minimum funding requirements of Part 3 of Subtitle B of Title I of ERISA or subject to Section 412 of the Code, has incurred any "“accumulated funding deficiency" ” within the meaning of Section 302 of ERISA or Section 412 of the Code and there has been no waived funding deficiency within the meaning of Section 303 of ERISA or Section 412 of the Code, (iii) all premiums to the PBGC have been timely paid in full, and (iv) the PBGC has not instituted proceedings Proceedings to terminate any such Benefit Plan and no condition exists that presents a risk that such proceedings Proceedings will be instituted or that would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Benefit Plan. Neither Except as set forth in Schedule 3.10(b) hereto, which includes the pension benefit plans subject to Title IV of ERISA: Power and Affiliated Companies Retirement Plan A (Plan Number 001) and Plan B (Plan Number 003), the Company nor the Subsidiaries does not currently sponsor, maintain, contribute to, or are is required to contribute to an Employee Pension Benefit Plan subject to Title IV of ERISA.