Common use of ERISA and Employee Benefit Plans Clause in Contracts

ERISA and Employee Benefit Plans. (a) There are no material employee benefit plans, arrangements, policies or commitments of any type (including, but not limited to, plans described in section 3(3) of ERISA) maintained by the Company or its Subsidiaries, or with respect to which the Company or its Subsidiaries has or could have any direct or indirect liability, other than those described in Schedule 5.21(a) of the Disclosure Schedules ("Benefit Plans"). (b) Accurate and complete copies of all plan text and agreements, the most recent annual report, the most recent annual and periodic accounting of plan assets, and the most recent actuarial valuation with respect to each Benefit Plan have been made available upon request to the Purchaser. (c) Except as provided in Schedule 5.21(c) of the Disclosure Schedules, no Benefit Plan is or, in the preceding five calendar years, has been subject to Title IV of ERISA or section 412 of the Code. With respect to each Benefit Plan subject to Section 412 of the Code or section 302 of ERISA: (i) such plan uses a funding method permissible under ERISA and the actuarial assumptions used in connection therewith are reasonable individually and in the aggregate; (ii) no such Benefit Plan has incurred an accumulated funding deficiency, whether or not waived; (iii) the fair market value of the assets of such Benefit Plan will exceed or equal the "projected benefit obligation" (as defined in Statement of Financial Accounting Standard No. 87) and the "amount of unfunded benefit liabilities," as defined in section 4001(a)(18) of ERISA is zero; (iv) no such Benefit Plan has been terminated, no filing of a notice of intent to terminate such a Benefit Plan has been made, and the Pension Benefit Guaranty Corporation has not initiated any proceeding to terminate any such Benefit Plan; and (v) no event has occurred and to the Company's Knowledge, there exists no condition or set of circumstances which presents a material risk that any such Benefit Plan has or is likely to experience a "partial termination" within the meaning of section 411(d)(3) of the Code. No Benefit Plan is a "multiple employer plan" within the meaning of the Code or ERISA. (d) With respect to each Benefit Plan, except as set forth in Schedule 5.21 of the Disclosure Schedules and to the extent that the failure to comply would not affect the condition of the Company in any material respect: (i) if it is intended to qualify under section 401(a) or 403(a) of the Code, such plan has received a favorable determination letter as to its qualification; (ii) such Benefit Plan has been maintained and administered at all times in compliance with its terms and applicable laws and regulations; and (iii) no event has occurred and there exists no circumstances under which the Company or its Subsidiaries could incur liability under ERISA, the Code or otherwise (other than routine claims for benefits) with respect to such plan. (e) Except as provided in Schedule 5.21(e) of the Disclosure Schedules, with respect to each Benefit Plan that is a "welfare plan" (as defined in ERISA section 3(1)): no such plan provides medical benefits with respect to current or former employees of the Company or its Subsidiaries beyond their termination of employment (other than as required under Code section 4980B). (f) Except as set forth in Schedule 5.21(f) of the Disclosure Schedules, the consummation of the transactions contemplated by this Agreement will not give rise to any liability or increase any existing liability under any Benefit Plan.

ERISA and Employee Benefit Plans. (a) There are no material employee benefit plans, arrangements, policies or commitments of any type (including, but not limited to, plans described as defined in section 3(3Section 3(2) of ERISA) , maintained by the Company or its Subsidiariesany Subsidiary, or with respect to which the Company or its Subsidiaries any Subsidiary has or could have any direct or indirect material liability, other than those described in Schedule 5.21(a) of the Disclosure Schedules SCHEDULE 5.22 ("Benefit PlansBENEFIT PLANS"). (b) Accurate and complete copies of all plan Benefit Plan text and agreements, the most recent annual report, the most recent annual and periodic accounting of plan Benefit Plan assets, and the most recent actuarial valuation with respect to each Benefit Plan have been delivered or made available upon request to the Purchaser. (c) Except as provided in Schedule 5.21(c) of the Disclosure Schedules, no No Benefit Plan is or, in the preceding five calendar years, has been subject to Title IV of ERISA or section 412 of the Code. With respect to each Benefit Plan subject to Section 412 of the Code or section 302 of ERISA: (i) such plan uses a funding method permissible under ERISA and the actuarial assumptions used in connection therewith are reasonable individually and in the aggregate; (ii) no such Benefit Plan has incurred an accumulated funding deficiency, whether or not waived; (iii) the fair market value of the assets of such Benefit Plan will exceed or equal the "projected benefit obligation" (Except as defined in Statement of Financial Accounting Standard No. 87) and the "amount of unfunded benefit liabilities," as defined in section 4001(a)(18) of ERISA is zero; (iv) no such Benefit Plan has been terminatedset forth on SCHEDULE 5.22, no filing of a notice of intent to terminate such a Benefit Plan has been made, and the Pension Benefit Guaranty Corporation has not initiated any proceeding to terminate any such Benefit Plan; and (v) no event has occurred and to the Company's Knowledge, there exists no condition or set of circumstances which presents a material risk that any such Benefit Plan has or is likely to experience a "partial termination" within the meaning of section 411(d)(3) of the Code. No Benefit Plan is a "multiple employer planMULTIPLE EMPLOYER PLAN" within the meaning of the Code or ERISA. With respect to any Benefit Plan that is a "multi-employer plan," as such term is defined in Section 3(37) of ERISA, (i) neither the Company nor any Subsidiary, nor any entity which is treated as a single employer with any of them pursuant to Section 414(b), (c), (m) or (o) of the Code (an "ERISA AFFILIATE") has, since the date on which the Company or any Subsidiary first began contributing to any multi-employer plan, made or suffered a "COMPLETE WITHDRAWAL" or a "PARTIAL WITHDRAWAL," as such terms are respectively defined in Sections 4203 and 4205 of ERISA, (ii) no event has occurred that presents a material risk of a partial withdrawal, (iii) neither the Company, nor any Subsidiary, nor any ERISA Affiliate has any contingent liability under Section 4204 of ERISA, and (iv) there would be no withdrawal liability of the Company, any Subsidiary and any ERISA Affiliates, computed as if a complete withdrawal by each such entity had occurred under each such Benefit Plan on the date hereof if each such entity ceased contributions thereto. (d) With respect to each Benefit Plan, except as set forth in Schedule 5.21 of the Disclosure Schedules and to the extent that the failure to comply would not affect the condition of the Company in any material respect: (i) if it is intended to qualify under section 401(a) or of 403(a) of the Code, the Company has no knowledge of any circumstance that could be reasonably expected to result in such plan has received a favorable determination letter as Benefit Plan's failure to its qualificationbe so qualified; (ii) such Benefit Plan has been maintained and administered at all times in substantial compliance with its terms and applicable laws and regulations; and (iii) no event has occurred and there exists no circumstances under which the Company or its Subsidiaries any Subsidiary could be reasonably expected to incur material liability under ERISA, the Code or otherwise (other than routine claims for benefits) with respect to such Benefit Plan or with respect to any other entity's employee benefit plan; and (iv) all contributions and premiums due with respect to such Benefit Plan have been made on a timely basis. (e) Except as provided in Schedule 5.21(e) of the Disclosure Schedules, with With respect to each Benefit Plan that is a "welfare plan" (as defined in ERISA section 3(1)): ) which is maintained or contributed to by the Company or any Subsidiary or with respect to which the Company or any Subsidiary has or could have any direct or indirect liability as of the Closing Date: (i) no such plan provides medical or death benefits with respect to current or former employees of the Company or its Subsidiaries any Subsidiary beyond their termination of employment (other than as required to avoid an excise tax under Code section 4980B).; and (ii) the Company and each Subsidiary has substantially complied with the requirements of Code section 4980B. (f) Except as set forth in Schedule 5.21(f) of the Disclosure Schedules, the The consummation of the transactions contemplated by this Agreement and the other Transaction Documents will not give rise not: (i) entitle any individual to severance or termination pay; (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any liability individual; or increase any existing liability (iii) result in the payment that will be taken into account in determining whether there is an "excess parachute payment" under any Benefit PlanCode section 280G(b)(1).

ERISA and Employee Benefit Plans. (a) There are no Each Employee Benefit Plan has been maintained, funded and administered in compliance in all material employee benefit plansrespects with its terms and the applicable provisions of ERISA, arrangementsthe Code and other Applicable Laws, policies or commitments of any type (including, but not limited towithout limitation, plans described in section 3(3) of ERISA) maintained by the Company or its Subsidiaries, or with respect to which the Company or its Subsidiaries has or could have any direct or indirect liability, other than those described in Schedule 5.21(acontinuation coverage and notice requirements under Section 4980B(f) of the Disclosure Schedules ("Code and Part 6 of Title I of ERISA. Each Employee Benefit Plans")Plan that is intended to be tax-qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to its tax-qualified status and the tax-exempt status of its accompanying trust established under Section 501(a) of the Code, and, since the issuance of any such determination or opinion letter, no events have occurred nor any circumstances exist that in either such case would reasonably be expected to adversely affect the tax-qualified status of any such Employee Benefit Plan. (b) Accurate and complete copies Neither the Company nor any of all plan text and agreementsits ERISA Affiliates has ever maintained, the most recent annual report, the most recent annual and periodic accounting of plan assets, and the most recent actuarial valuation with respect sponsored or been required to each Benefit Plan have been made available upon request contribute to the Purchaser. any (ci) Except “defined benefit plan” (as provided defined in Schedule 5.21(cSection 3(35) of the Disclosure SchedulesERISA), no Benefit Plan (ii) “employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is or, in the preceding five calendar years, has been subject to Title IV of ERISA or section Sections 412 or 430 of the Code. With respect to each Benefit Plan subject to Section 412 of the Code , or section 302 of ERISA: (i) such plan uses a funding method permissible under ERISA and the actuarial assumptions used in connection therewith are reasonable individually and in the aggregate; (ii) no such Benefit Plan has incurred an accumulated funding deficiency, whether or not waived; (iii) the fair market value of the assets of such Benefit Plan will exceed or equal the "projected benefit obligation" “multiemployer plan” (as defined in Statement of Financial Accounting Standard No. 87Section 3(37) and the "amount of unfunded benefit liabilities," as defined in section 4001(a)(18or 4001(a)(3) of ERISA is zero; ERISA). (ivc) no such Benefit Plan The Company has been terminated, no filing of a notice of intent neither promised nor has any obligation to terminate such a Benefit Plan has been made, provide post-employment health and the Pension Benefit Guaranty Corporation has not initiated any proceeding to terminate any such Benefit Plan; and (v) no event has occurred and to the Company's Knowledge, there exists no condition or set of circumstances which presents a material risk that any such Benefit Plan has or is likely to experience a "partial termination" within the meaning of section 411(d)(3welfare benefits other than making continuation coverage available as required under Section 4980B(f) of the CodeCode and Part 6 of Title I of ERISA. No All required contributions and premium payments for all periods ending prior to or as of the Closing Date with respect to any Employee Benefit Plan is a "multiple employer plan" within the meaning will be made or properly accrued for as of the Code or ERISAClosing Date. (d) With respect to each Benefit Plan, except as set forth in Schedule 5.21 Neither the execution of the Disclosure Schedules and to the extent that the failure to comply would not affect the condition of the Company in any material respect: (i) if it is intended to qualify under section 401(a) or 403(a) of the Code, such plan has received a favorable determination letter as to its qualification; (ii) such Benefit Plan has been maintained and administered at all times in compliance with its terms and applicable laws and regulations; and (iii) no event has occurred and there exists no circumstances under which the Company or its Subsidiaries could incur liability under ERISA, the Code or otherwise (other than routine claims for benefits) with respect to such plan. (e) Except as provided in Schedule 5.21(e) of the Disclosure Schedules, with respect to each Benefit Plan that is a "welfare plan" (as defined in ERISA section 3(1)): no such plan provides medical benefits with respect to current or former employees of the Company or its Subsidiaries beyond their termination of employment (other than as required under Code section 4980B). (f) Except as set forth in Schedule 5.21(f) of the Disclosure Schedules, this Agreement nor the consummation of the transactions contemplated by this Agreement herein will (i) entitle any employee to severance pay (to which such employee would not give rise otherwise be entitled to absent the consummation of the transactions contemplated herein) or any increase in severance pay upon any termination of employment after the date hereof, (ii) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other obligation pursuant to, any Employee Benefit Plan, or (iii) result in payments which would not be deductible under Section 280G of the Code. (e) Each Employee Benefit Plan that is a “nonqualified deferred compensation plan” subject to Section 409A of the Code to which the Company is a party either complies with, can be amended to comply with, or is exempt from the requirements of Section 409A(a)(2), (3), and (4) of the Code and any U.S. Department of Treasury or IRS guidance issued thereunder, and no amounts deferred under any such plan (after giving effect to any liability plan amendment permitted under an available IRS correction program) is or increase any existing liability has been subject to the interest and additional tax set forth under any Benefit PlanSection 409A(a)(1)(B) of the Code.

ERISA and Employee Benefit Plans. (a) There are no material employee benefit plans, arrangements, policies or commitments of any type (including, but not limited to, plans described as defined in section 3(3Section 3(2) of ERISA) , maintained by the Company or its Subsidiariesany Subsidiary, or with respect to which the Company or its Subsidiaries any Subsidiary has or could have any direct or indirect material liability, other than those described in Schedule 5.21(a) of the Disclosure Schedules 5.22 ("Benefit Plans"). (b) Accurate and complete copies of all plan Benefit Plan text and agreements, the most recent annual report, the most recent annual and periodic accounting of plan Benefit Plan assets, and the most recent actuarial valuation with respect to each Benefit Plan have been delivered or made available upon request to the Purchaser. (c) Except as provided in Schedule 5.21(c) of the Disclosure Schedules, no No Benefit Plan is or, in the preceding five calendar years, has been subject to Title IV of ERISA or section 412 of the Code. With respect to each Benefit Plan subject to Section 412 of the Code or section 302 of ERISA: (i) such plan uses a funding method permissible under ERISA and the actuarial assumptions used in connection therewith are reasonable individually and in the aggregate; (ii) no such Benefit Plan has incurred an accumulated funding deficiency, whether or not waived; (iii) the fair market value of the assets of such Benefit Plan will exceed or equal the "projected benefit obligation" (Except as defined in Statement of Financial Accounting Standard No. 87) and the "amount of unfunded benefit liabilities," as defined in section 4001(a)(18) of ERISA is zero; (iv) no such Benefit Plan has been terminatedset forth on Schedule 5.22, no filing of a notice of intent to terminate such a Benefit Plan has been made, and the Pension Benefit Guaranty Corporation has not initiated any proceeding to terminate any such Benefit Plan; and (v) no event has occurred and to the Company's Knowledge, there exists no condition or set of circumstances which presents a material risk that any such Benefit Plan has or is likely to experience a "partial termination" within the meaning of section 411(d)(3) of the Code. No Benefit Plan is a "multiple employer plan" within the meaning of the Code or ERISA. With respect to any Benefit Plan that is a "multi-employer plan," as such term is defined in Section 3(37) of ERISA, (i) neither the Company nor any Subsidiary, nor any entity which is treated as a single employer with any of them pursuant to Section 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") has, since the date on which the Company or any Subsidiary first began contributing to any multi-employer plan, made or suffered a "complete withdrawal" or a "partial withdrawal," as such terms are respectively defined in Sections 4203 and 4205 of ERISA, (ii) no event has occurred that presents a material risk of a partial withdrawal, (iii) neither the Company, nor any Subsidiary, nor any ERISA Affiliate has any contingent liability under Section 4204 of ERISA, and (iv) there would be no withdrawal liability of the Company, any Subsidiary and any ERISA Affiliates, computed as if a complete withdrawal by each such entity had occurred under each such Benefit Plan on the date hereof if each such entity ceased contributions thereto. (d) With respect to each Benefit Plan, except as set forth in Schedule 5.21 of the Disclosure Schedules and to the extent that the failure to comply would not affect the condition of the Company in any material respect: (i) if it is intended to qualify under section 401(a) or of 403(a) of the Code, the Company has no knowledge of any circumstance that could be reasonably expected to result in such plan has received a favorable determination letter as Benefit Plan's failure to its qualificationbe so qualified; (ii) such Benefit Plan has been maintained and administered at all times in substantial compliance with its terms and applicable laws and regulations; and (iii) no event has occurred and there exists no circumstances under which the Company or its Subsidiaries any Subsidiary could be reasonably expected to incur material liability under ERISA, the Code or otherwise (other than routine claims for benefits) with respect to such Benefit Plan or with respect to any other entity's employee benefit plan; and (iv) all contributions and premiums due with respect to such Benefit Plan have been made on a timely basis. (e) Except as provided in Schedule 5.21(e) of the Disclosure Schedules, with With respect to each Benefit Plan that is a "welfare plan" (as defined in ERISA section 3(1)): ) which is maintained or contributed to by the Company or any Subsidiary or with respect to which the Company or any Subsidiary has or could have any direct or indirect liability as of the Closing Date: (i) no such plan provides medical or death benefits with respect to current or former employees of the Company or its Subsidiaries any Subsidiary beyond their termination of employment (other than as required to avoid an excise tax under Code section 4980B).; and (ii) the Company and each Subsidiary has substantially complied with the requirements of Code section 4980B. (f) Except as set forth in Schedule 5.21(f) of the Disclosure Schedules, the The consummation of the transactions contemplated by this Agreement and the other Transaction Documents will not give rise not: (i) entitle any individual to severance or termination pay; (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any liability individual; or increase any existing liability (iii) result in the payment that will be taken into account in determining whether there is an "excess parachute payment" under any Benefit PlanCode section 280G(b)(1).

ERISA and Employee Benefit Plans. (a) There are no material employee benefit plans, arrangements, policies or commitments of any type (including, but not limited to, plans described in section 3(3) of ERISA) maintained by the Company or any of its Subsidiaries, or with respect to which the Company or any of its Subsidiaries has or could have any direct or indirect liability, other than those described in Schedule 5.21(a) of the Disclosure Schedules 5.22 ("Benefit Plans"). (b) Accurate and complete copies of all plan text and agreements, the most recent annual report, the most recent annual and periodic accounting of plan assets, and the most recent actuarial valuation with respect to each Benefit Plan have been made available upon request to the Purchaser. (c) Except as provided in Schedule 5.21(c) of the Disclosure Schedules, no No Benefit Plan is or, in the preceding five calendar years, has been subject to Title IV of ERISA or section 412 of the Code. With respect to each Benefit Plan subject to Section 412 of the Code or section 302 of ERISA: (i) such plan uses a funding method permissible under ERISA and the actuarial assumptions used in connection therewith are reasonable individually and in the aggregate; (ii) no such Benefit Plan has incurred an accumulated funding deficiency, whether or not waived; (iii) the fair market value of the assets of such Benefit Plan will exceed or equal the "projected benefit obligation" (as defined in Statement of Financial Accounting Standard No. 87) and the "amount of unfunded benefit liabilities," as defined in section 4001(a)(18) of ERISA is zero; (iv) no such Benefit Plan has been terminated, no filing of a notice of intent to terminate such a Benefit Plan has been made, and the Pension Benefit Guaranty Corporation has not initiated any proceeding to terminate any such Benefit Plan; and (v) no event has occurred and to the Company's Knowledge, there exists no condition or set of circumstances which presents a material risk that any such Benefit Plan has or is likely to experience a "partial termination" within the meaning of section 411(d)(3) of the Code. No Benefit Plan is a "multiple employer plan" within the meaning of the Code or ERISA. (d) With respect to each Benefit Plan, except as set forth in Schedule 5.21 of the Disclosure Schedules and to the extent that the failure to comply would not affect the condition of the Company in any material respect5.22: (i) if it is intended to qualify under section 401(a) or 403(a) of the Code, such plan has received a favorable determination letter as to its qualificationso qualifies; (ii) such Benefit Plan has been maintained and administered at all times in compliance in all material respects with its terms and applicable laws and regulations; and (iii) no event has occurred and there exists no circumstances under which the Company or any of its Subsidiaries could incur material liability under ERISA, the Code or otherwise (other than routine claims for benefits) with respect to such plan or with respect to any other entity's employee benefit plan; and (iv) all material contributions and premiums due with respect to such plan have been made on a timely basis. (e) Except as provided in Schedule 5.21(e) of the Disclosure Schedules, with With respect to each Benefit Plan that is a "welfare plan" (as defined in ERISA section 3(1)): (i) no such plan provides medical or death benefits with respect to current or former employees of the Company or any of its Subsidiaries beyond their termination of employment (other than as required to avoid an excise tax under Code section 4980B).; and (ii) except as set forth on Schedule 5.22, the Company and each of its Subsidiaries has complied with the requirements of Code section 4980B. (f) Except as set forth in on Schedule 5.21(f) of the Disclosure Schedules5.22, the consummation of the transactions contemplated by this Agreement will not give rise not: (i) entitle any individual to severance or termination pay; (ii) accelerate the time of payment or vesting, or increase the amount of compensation due to any liability individual; or increase any existing liability (iii) result in a payment or other benefit that will constitute an "excess parachute payment" under any Benefit PlanCode section 280G(b)(1).