Common use of ERISA and Related Matters Clause in Contracts

ERISA and Related Matters. (a) Except as set forth in Section 5.14 of the Disclosure Schedule, Sellers (or their ERISA Affiliates, as the case may be) have no liability, with respect to the Business, whether direct, indirect, contingent or otherwise (i) for any violation of the health care requirements of Part 6 Title I of ERISA or Section 4980B of the Code, (ii) under Sections 502(i) or 502(l) of ERISA or Section 4975 of the Code, (iii) under Section 302 of ERISA or Section 412 of the Code or (iv) under Title IV of ERISA. (a) Section 5.14 of the Disclosure Schedule lists each of Sellers' Benefit Plans. Neither Sellers nor any of their ERISA Affiliates has ever maintained, contributed to, or had any liability whatsoever (whether direct, indirect, contingent or otherwise) with respect to any multiemployer plan (as such term is defined in Section 3(37) of ERISA). Each of the Sellers' Benefit Plans, which is intended to qualify under Section 401(a) of the Code, has received a favorable determination letter from the IRS, and no event has occurred that would cause any such plan to cease being so qualified. Except as set forth in Section 5.14 of the Disclosure Schedule, each of Sellers' Benefit Plans complies in form and has been administered in accordance with the requirements of ERISA and, where applicable, the Code. Sellers (or their ERISA Affiliates, as the case may be) have made all required contributions to each of the Sellers' Benefit Plans, including remittance of all participants' 401(k) contributions. "Sellers' Benefit Plans" shall include each deferred compensation, profit-sharing, retirement, pension, and each bonus or other incentive compensation, stock purchase, stock option, fringe benefit, and other equity compensation plan, program, agreement or arrangement; each severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning of Section 3(1) of ERISA); each profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of Section 3(2) of ERISA); each employment, consulting, retention, termination or severance agreement; and each other employee benefit plan, fund, program, agreement or arrangement, whether oral or written, formal or informal and whether or not subject to ERISA, in each case, that is sponsored, maintained or contributed to or required to be contributed to by Sellers or any of their ERISA Affiliates with respect to current or former employees of Parent or any of its Affiliates.

ERISA and Related Matters. (aA) Except as set forth in Section 5.14 of Neither the Disclosure Schedule, Sellers (or their Company nor any ERISA Affiliates, as the case may be) have no liability, with respect to the Business, whether direct, indirect, contingent or otherwise Affiliate (i) for maintains, contributes to or, to the Principal Stockholders= Knowledge, has any violation Liability under (or with respect to) any employee pension benefit plan (as defined in Section 3(2) of the health care requirements of Part 6 Title I of ERISA ERISA), whether or Section 4980B of the Codenot terminated, (ii) under Sections 502(i) has, to the Principal Stockholders= Knowledge, any obligation to contribute to (or, to the Principal Stockholders= Knowledge, any other Liability, including current or 502(l) of ERISA or Section 4975 of the Codepotential withdrawal Liability, (iii) under Section 302 of ERISA or Section 412 of the Code or (iv) under Title IV of ERISA. (a) Section 5.14 of the Disclosure Schedule lists each of Sellers' Benefit Plans. Neither Sellers nor any of their ERISA Affiliates has ever maintained, contributed to, or had any liability whatsoever (whether direct, indirect, contingent or otherwise) with respect to to) any "multiemployer plan plan" (as such term is defined in Section 3(37) of ERISA). Each of ) or (iii) has, to the Sellers' Benefit PlansPrincipal Stockholders= Knowledge, any obligation to contribute to (or any other Liability with respect to) any plan or arrangement, whether or not terminated, which is intended provides medical, health, life insurance or other welfare-type benefits for current or future terminated or retired employees (except for limited continued medical benefit coverage required to qualify be provided under Section 401(a) 4980B of the Code, has received a favorable determination letter from the IRS, and no event has occurred that would cause any such plan to cease being so qualified. ). (B) Except as set forth in Section 5.14 on Schedule 5.1.17, --------------- neither the Company nor any ERISA Affiliate maintains, contributes to or, to the Knowledge of the Disclosure ScheduleCompany and the Principal Stockholders, each of Sellers' Benefit Plans complies in form and has been administered in accordance with the requirements of ERISA and, where applicable, the Code. Sellers any Liability under (or their ERISA Affiliates, as the case may bewith respect to) have made all required contributions any plan or arrangement providing benefits to each of the Sellers' Benefit Planscurrent or former employees, including remittance of all participants' 401(k) contributions. "Sellers' Benefit Plans" shall include each any bonus plan, stock plan, plan for deferred compensation, profit-sharing, retirement, pension, and each bonus or other incentive compensation, stock purchase, stock option, fringe benefit, and other equity compensation plan, program, agreement or arrangement; each severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program employee welfare benefit plan (within the meaning of as defined in Section 3(1) of ERISA); each profit-sharing, stock bonus ) or other "pension" plan, fund or program (within the meaning of Section 3(2) of ERISA); each employment, consulting, retention, termination or severance agreement; and each other employee benefit plan, fund, program, agreement or arrangement, whether oral or written, formal or informal and whether or not subject terminated (such plans and other arrangements are referred to as the "Plans"). With respect to the Plans, to the Knowledge of the Company and the Principal Stockholders, all required or recommended (in accordance with historical practices) payments, premiums, contributions, reimbursements or accruals for all periods ending prior to or as of the Closing shall have been made or properly accrued on the books and records of the Company. To the Knowledge of the Company and the Principal Stockholders, none of the Plans has any unfunded liabilities which are not reflected on the books and records of the Company. To the Knowledge of the Company and the Principal Stockholders, the Plans and all related trusts, insurance contracts and funds have been maintained, funded and administered in compliance with the applicable provisions of ERISA, in the Code and other applicable laws, and the Company and each case, that is sponsored, maintained or contributed to or required to be contributed to by Sellers or any ERISA Affiliate has complied with the requirements of their ERISA Affiliates with respect to current or former employees section 4980B of Parent or any of its Affiliatesthe Code.

ERISA and Related Matters. (a) Except as set forth in Section 5.14 of the Disclosure Schedule, Sellers (or their ERISA Affiliates, as the case may be) have no liability, with respect to the Business, whether direct, indirect, contingent or otherwise (i) for any violation of the health care requirements of Part 6 Title I of ERISA or Section 4980B of the Code, (ii) under Sections 502(i) or 502(l) of ERISA or Section 4975 of the Code, (iii) under Section 302 of ERISA or Section 412 of the Code or (iv) under Title IV of ERISA. (a) Section 5.14 of the Disclosure Schedule lists each of Sellers' ’ Benefit Plans. Neither Sellers nor any of their ERISA Affiliates has ever maintained, contributed to, or had any liability whatsoever (whether direct, indirect, contingent or otherwise) with respect to any multiemployer plan (as such term is defined in Section 3(37) of ERISA). Each of the Sellers' ’ Benefit Plans, which is intended to qualify under Section 401(a) of the Code, has received a favorable determination letter from the IRS, and no event has occurred that would cause any such plan to cease being so qualified. Except as set forth in Section 5.14 of the Disclosure Schedule, each of Sellers' ’ Benefit Plans complies in form and has been administered in accordance with the requirements of ERISA and, where applicable, the Code. Sellers (or their ERISA Affiliates, as the case may be) have made all required contributions to each of the Sellers' ’ Benefit Plans, including remittance of all participants' ’ 401(k) contributions. "“Sellers' ’ Benefit Plans" ” shall include each deferred compensation, profit-sharing, retirement, pension, and each bonus or other incentive compensation, stock purchase, stock option, fringe benefit, and other equity compensation plan, program, agreement or arrangement; each severance or termination pay, medical, surgical, hospitalization, life insurance and other "“welfare" ” plan, fund or program (within the meaning of Section 3(1) of ERISA); each profit-sharing, stock bonus or other "“pension" ” plan, fund or program (within the meaning of Section 3(2) of ERISA); each employment, consulting, retention, termination or severance agreement; and each other employee benefit plan, fund, program, agreement or arrangement, whether oral or written, formal or informal and whether or not subject to ERISA, in each case, that is sponsored, maintained or contributed to or required to be contributed to by Sellers or any of their ERISA Affiliates with respect to current or former employees of Parent or any of its Affiliates. (b) Sellers have delivered or made available to Buyer, with respect to each of Sellers’ Benefit Plans, correct and complete copies of (i) all plan documents and amendments, trust agreements and insurance contracts, (ii) the most recent IRS determination letter, (iii) the most recent Annual Report (Form 5500 Series) and accompanying schedules, as filed, (iv) the current and, to the extent available, the prior summary plan description, (v) the most recent financial statements and (vi) the most recent actuarial report. (c) There is no pending or, to the knowledge of Sellers, threatened claim that alleges any violation of ERISA or any other law (i) by or on behalf of any of Sellers’ Benefit Plans or (ii) by any employee of Sellers (or their Affiliates, as the case may be) or any plan participant or beneficiary against any such plan other than routine claims for benefits.

ERISA and Related Matters. (a) Except as set forth in Section 5.14 of the Disclosure Schedule, Sellers (or their ERISA Affiliates, as the case may be) have no liability, with respect to the Business, whether direct, indirect, contingent or otherwise (i) for any violation of the health care requirements of Part 6 Title I of ERISA or Section 4980B of the Code, (ii) under Sections 502(i) or 502(l) of ERISA or Section 4975 of the Code, (iii) under Section 302 of ERISA or Section 412 of the Code or (iv) under Title IV of ERISA. (a) Section 5.14 3.12(a) of the Disclosure Schedule lists each of Sellers' Benefit Plans. Neither Sellers nor any of their ERISA Affiliates has ever maintainedall deferred compensation, contributed topension, or had any liability whatsoever (whether directprofit-sharing, indirectand retirement plans, contingent or otherwise) with respect to any multiemployer plan and all bonus, welfare, severance pay, and other "employee benefit plans" (as such term is defined in Section 3(373(3) of ERISA). Each , fringe benefit or stock option plans, including individual contracts, employee agreements, programs, or arrangements, or any other material compensation commitment, payroll practice or method of contribution or compensation, whether formal or informal, providing the benefits, whether or not written, which have been participated in, or maintained by the Company or with respect to which contributions have been made or obligations assumed by the Company in respect of the Sellers' Company (including health, life insurance, and other benefit plans maintained for former employees or retirees) at any time between January 1, 1998 and the date hereof. Said plans or other arrangements are sometimes individually referred to in this Agreement as a "Company Benefit Plan" and sometimes collectively referred to in this Agreement as the "Company Benefit Plans." Copies of all Company Benefit Plans and related documents, including those setting out the Company's personnel policies and procedures, and including any insurance contracts, trust agreements, or other arrangements under which is intended benefits are provided, as currently in effect, and descriptions of any such plan which are not written have been made available to qualify the Buyer. (b) Except as disclosed in Section 3.12(b) to the Disclosure Schedule: Since January 1, 1998, (i) The Company and each ERISA Affiliate has fulfilled its obligations, to the extent applicable, under the minimum funding requirements of Section 401(a) 302 of ERISA and Section 412 of the Code, has received a favorable determination letter from the IRS, and no event has occurred that would cause any such plan with respect to cease being so qualified. Except each "employee benefit plan" (as set forth defined in Section 5.14 3(3) of the Disclosure ScheduleERISA) to which those minimum funding requirements are applicable. The Company Benefit Plan is in substantial compliance with, each of Sellers' Benefit Plans complies in form and has been administered in all material respects in accordance with their written terms and consistent with, the requirements presently applicable provisions of ERISA and, where applicableERISA, the Code, and state Law including but not limited to the satisfaction of all applicable reporting and disclosure requirements under the Code, ERISA, and state Law. Sellers For purposes of this Agreement "ERISA Affiliate" shall mean each person (or their ERISA Affiliatesas defined in Section 3(9) of ERISA) which together with the Company, as the case may be) have made all required contributions would be deemed to each be a member of the Sellers' Benefit Plans, including remittance of all participants' 401(k) contributions. same "Sellers' Benefit Planscontrolled group," shall include each deferred compensation, profit-sharing, retirement, pension, and each bonus or other incentive compensation, stock purchase, stock option, fringe benefit, and other equity compensation plan, program, agreement or arrangement; each severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning of Section 3(1414(b), (c), (m) or (o) of ERISA); each profit-sharing, stock bonus or other "pension" plan, fund or program (within the meaning of Section 3(2) of ERISA); each employment, consulting, retention, termination or severance agreement; and each other employee benefit plan, fund, program, agreement or arrangement, whether oral or written, formal or informal and whether or not subject to ERISA, in each case, that is sponsored, maintained or contributed to or required to be contributed to by Sellers or any of their ERISA Affiliates with respect to current or former employees of Parent or any of its AffiliatesCode.

ERISA and Related Matters. (a) Disclosure Schedule ss. 2.9(a) lists all deferred compensation, pension, profit-sharing and retirement plans, and all bonus, welfare, severance pay and other "employee benefit plans" (as defined in Section 3(3) of ERISA), fringe benefit or stock option plans, including individual contracts, employee agreements, programs or arrangements, providing the same or similar benefits, whether or not written, participated in or maintained by each Company or with respect to which contributions are made or obligations assumed by each Company in respect of each Company (including health, life insurance and other benefit plans maintained for former employees or retirees), at any time between January 1, 1999 and the Closing Date. Said plans or other arrangements are sometimes collectively referred to in this Agreement as "Benefit Plans." Copies of all Benefit Plans and related documents, including those setting out each Company' personnel policies and procedures, and including any insurance contracts, trust agreements or other arrangements under which benefits are provided, as currently in effect, and descriptions of any such plan which are not written have been delivered to Buyer. Each Company has also delivered to Buyer a copy of the Summary Plan Description, if any, for each of its Benefit Plans, as well as copies of any other summaries or descriptions of any such Benefit Plans which have been provided to employees or other beneficiaries during the current and previous three (3) calendar years. (b) Except as set forth in on Disclosure Schedule ss. 2.9(b) hereto, each Company has fulfilled its obligations, to the extent applicable, under the minimum funding requirements of Section 5.14 302 of ERISA and Section 412 of the Disclosure Schedule, Sellers (or their ERISA Affiliates, as the case may be) have no liabilityCode, with respect to each "employee benefit plan" (as defined in Section 3(3) of ERISA) appearing in Disclosure Schedule ss. 2.9(b). Each Benefit Plan is in compliance in all material respects with, and has been administered in all material respects consistent with, the Businesspresently applicable provisions of ERISA, whether direct, indirect, contingent or otherwise (i) for any violation the Code and state law including but not limited to the satisfaction of the health care all applicable reporting and disclosure requirements of Part 6 Title I of ERISA or Section 4980B of under the Code, (ii) under Sections 502(i) ERISA and state law; each Company has made all payments to all Benefit Plans as required by the terms of each such plan in accordance, if applicable, with the actuarial and funding assumptions in effect as for the most recent actuarial valuation of such plans. Except as disclosed on Disclosure Schedule ss. 2.9(b), all actuarial valuations and reports relating to said plans required by law or 502(lthe terms of the plan have been prepared and a copy of the most recent actuarial valuation and report for each pension plan, as defined in Section 3(2) of ERISA, has been provided to Buyer, if applicable, and each Company has filed or caused to be filed with the IRS annual reports on Form 5500 for each Benefit Plan attributable to them for all years and periods for which such reports were required and within the time period required by 15 ERISA and the Code, and copies of such reports for the past three years have been provided to Buyer. Except as disclosed on Disclosure Schedule ss. 2.9(b), each Company has funded or will fund each Benefit Plan in which its employees participate or is otherwise attributable to it in accordance with its terms through Closing including the payment of applicable premiums on any insurance contract funding a Benefit Plan for coverage provided through Closing. To the extent that any annual contribution for the current year is not yet required for any Benefit Plan as of the Closing Date, each Company shall make a pro rata contribution to said plan for the period ended at the Closing Date or said contribution has been accrued on the books of each Company. (c) Except as set forth on Disclosure Schedule ss. 2.9(c) hereto, no "prohibited transaction," as defined in Section 406 of ERISA and Section 4975 of the Code, (iii) under Section 302 has occurred in respect of any such Benefit Plan, and no civil or criminal action brought pursuant to Part 5 of Title I or ERISA is pending or Section 412 is threatened in writing or orally against any fiduciary of the Code or (iv) under Title IV of ERISAany such plan which, in either case, would have a Material Adverse Effect. (ad) Section 5.14 of the Except as set forth on Disclosure Schedule lists ss. 2.9(d) hereto, the IRS has issued a letter for each of Sellers' Benefit Plans. Neither Sellers nor any of their ERISA Affiliates has ever maintainedemployee pension benefit plan, contributed to, or had any liability whatsoever (whether direct, indirect, contingent or otherwise) with respect to any multiemployer plan (as such term is defined in Section 3(373(2) of ERISAERISA listed on Disclosure Schedule ss. 2.9(d). Each of the Sellers' Benefit Plans, which determining that such plan is intended to qualify a qualified plan under Section 401(a) of the Code and is exempt from United States Federal Income Tax under Section 501(a) of the Code, and there has received a favorable been no occurrence since the date of any such determination letter from which has adversely affected such qualification. Neither Company maintains a plan or arrangement intended to qualify under Section 501(c)(9) of the IRSCode. (e) Except as set forth on Disclosure Schedule ss. 2.9(e) hereto, each Benefit Plan that provides medical benefits has been operated in material compliance with all requirements of Section 4980B(f) of the Code and no event Sections 601 through 608 of ERISA relating to continuation of coverage under certain circumstances in which coverage would otherwise cease. All former employees of each Company or other persons entitled to such continuation of coverage through relationship to said former employees are listed on Disclosure Schedule ss. 2.9(e). (f) Except as set forth on Disclosure Schedule ss. 2.9(f) hereof, neither Company nor any entity that is treated as a single employer with either Company pursuant to Section 414(b), (c), (m) or (o) of the Code: (i) currently maintains or contributes to any Benefit Plan that is subject to Title IV of ERISA, nor (ii) has occurred that would cause previously maintained or contributed to any such plan that has resulted in any material liability or potential material liability for either Company under said Title IV such that any such liability would have a Material Adverse Effect. There shall not be as of Closing any outstanding unpaid minimum funding waiver within the meaning of Section 4.12(d) of the Code. (g) Attached hereto as a part of Disclosure Schedule ss. 2.9(g) is a 4-year contribution history indicating the dollar amount contributed and the level of contribution as a percentage of compensation of covered participants for each profit sharing plan, stock bonus plan or other retirement plan to cease being so qualifiedwhich either Company makes discretionary contributions. (h) Except as set forth on Disclosure Schedule ss. 2.9(h) hereof, neither Company has ever established nor ever maintained (and does not currently maintain) any Benefit Plan, plans or programs that provide post-retirement medical benefits (other than benefits described in Section 2.9(e) hereof and those which are required by law), post employment benefits, death benefits or other post retirement welfare benefits. (i) Neither Company nor any employer referred to in Section 2.9(f) above, maintains, nor has contributed within the past five years to, any multiemployer plan within the meaning of Sections 3(37) or 4001(a)(3) of ERISA. No such employer currently has any liability to make withdrawal liability payments to any multiemployer plan. There is no pending dispute between any such employer and any multiemployer plan concerning payment of contributions or payment of withdrawal liability payments. (j) All Benefit Plans have been operated and administered in accordance with their respective terms in all material respects and no materially inconsistent representation or interpretation has been made to any plan participant. Except as set forth on Disclosure Schedule ss. 2.9(j), no lawsuit or complaint (including, to the knowledge of the Company, any dispute that might result in a lawsuit or complaint against, by, or relating to any Benefit Plan or any fiduciary, as defined in Section 5.14 of the Disclosure Schedule, each of Sellers' Benefit Plans complies in form and has been administered in accordance with the requirements of ERISA and, where applicable, the Code. Sellers (or their ERISA Affiliates, as the case may be) have made all required contributions to each of the Sellers' Benefit Plans, including remittance of all participants' 401(k) contributions. "Sellers' Benefit Plans" shall include each deferred compensation, profit-sharing, retirement, pension, and each bonus or other incentive compensation, stock purchase, stock option, fringe benefit, and other equity compensation plan, program, agreement or arrangement; each severance or termination pay, medical, surgical, hospitalization, life insurance and other "welfare" plan, fund or program (within the meaning of Section 3(13(21) of ERISA); each profit-sharing, stock bonus ) other than claims in the ordinary course of a Benefit Plan has been filed or other "pension" plan, fund or program (within to the meaning knowledge of Section 3(2) of ERISA); each employment, consulting, retention, termination or severance agreement; and each other employee benefit plan, fund, program, agreement or arrangement, whether oral or written, formal or informal and whether or not subject to ERISA, in each case, that the Company is sponsored, maintained or contributed to or required to be contributed to by Sellers or any of their ERISA Affiliates pending with respect to current or former employees of Parent or any of its Affiliatesa Benefit Plan.