Common use of Existence of Plans Clause in Contracts

Existence of Plans. Neither the Company nor any of its ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of the Plans provides or provided post-retirement medical or health benefits other than as required by COBRA, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Section 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, nor any of its ERISA Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, nor any of its ERISA Affiliates has announced or otherwise made any commitment to create or amend any Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which the Surviving Corporation will be required to make any contributions or with respect to which the Surviving Corporation shall have any obligation or liability whatsoever other than any obligation or liability relating to any claim based on events arising on or before the Closing and any administrative expenses associated with terminating or maintaining any such Plan, whether on behalf of any of the current employees of the Company or on behalf of any other person, after the Closing, or (B) which the Surviving Corporation will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, or any of its ERISA Affiliates. The Company has made available to Broadcom true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, (II) the currently effective Summary Plan Description pertaining to each of the Plans, (III) all annual reports for each of the Plans (including all related schedules), (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent Internal Revenue Service determination letter, opinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (VI) for each unfunded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and in

Existence of Plans. Neither Except as disclosed in Section 2.14(a) of the Company Disclosure Schedule, (i) neither the Company, any Subsidiary nor any of its their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or paid to or on behalf of any employee payment for the provision or reimbursement of any employee benefit, including, without limitation, health and dental benefits, or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of the Plans provides or provided post-retirement medical or health benefits other than as required by COBRAbenefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Section Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, any Subsidiary nor any of its ERISA Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, any Subsidiary nor any of its ERISA Affiliates has announced or otherwise made any commitment to create or amend any Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which the Surviving Corporation New Focus will be required to make any contributions or with respect to which the Surviving Corporation New Focus shall have any obligation or liability whatsoever other than any obligation or liability relating to any claim based on events arising on or before the Closing and any administrative expenses associated with terminating or maintaining any such Planwhatsoever, whether on behalf of any of the current employees of the Company or any Subsidiary or on behalf of any other person, after the Closing, or (B) which New Focus, the Surviving Corporation or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, any Subsidiary or any of its their respective ERISA Affiliates. The Company has made available delivered, as applicable, to Broadcom New Focus true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description summary plan description pertaining to each of the Plans, (III) all annual reports for each of the Plans (including all related schedules), (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent Internal Revenue Service determination letter, opinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (VI) for each unfunded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and inin financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates.

Existence of Plans. Neither Section 4.13 and Section 4.12(a)(viii) of the Company nor any of its ERISA Affiliates maintains or sponsors Disclosure Letter lists each Plan (or ever maintained or sponsoredas defined below), or makes or is required to make contributions to, any Plans, (ii) none . None of the Plans (i) is or was a "multi-employer “multiemployer plan"”, as defined in Section 3(37) or 4001(a)(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) is or was subject to Section 412 of the Code or Section 302 or Title IV of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of the Plans provides or provided post-retirement medical medical, health or health other welfare benefits other than as required by COBRAapplicable law, and (viv) none of the Plans is or was a "“welfare benefit fund," ” as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Section Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither and the Company, its Subsidiaries, and ERISA Affiliates do not, and have never been required to, contribute to or provide benefits under any such Plan. In addition, neither (y) the Company nor to the Company’s knowledge any of its ERISA Affiliates is or was a party to any collective bargaining agreement, and (viiz) neither the Company, Company nor any of its ERISA Affiliates has announced or otherwise made any commitment to create or amend any Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which the Surviving Corporation will be required to make any contributions Parent or with respect to which the Surviving Corporation shall have any obligation or liability whatsoever other than any obligation or liability relating to any claim based on events arising on or before the Closing and any administrative expenses associated with terminating or maintaining any such Plan, whether on behalf of any of the current employees of the Company or on behalf of any other person, after the Closing, or (B) which the Surviving Corporation will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities material Liabilities in accordance with the Company’s normal accounting practices with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, any Subsidiary or any of its their respective ERISA Affiliates. The Company has made available to Broadcom Parent true and complete copies of: (Ii) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (IIii) the currently effective Summary Plan Description summary plan description pertaining to each of the Plans, (IIIiii) all the three (3) most recent annual reports of Form 5500 for each of the Plans (including all related schedules), (IV) the most recently filed PBGC Form 1 (if applicable), (Viv) the most recent Internal Revenue Service IRS determination letter, opinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documentsCode, and (VIv) for each unfunded Plan, financial statements consisting of (aA) the consolidated statement of assets and liabilities Liabilities of such Plan as of its most recent valuation date, and (bB) the statement of changes in fund balance and inin financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates. For purposes of this Agreement, “ERISA Affiliate” means any person that, together with the Company or any Subsidiary as of any relevant date was or is required to be treated as a single employer under Code Section 414 or ERISA. For purposes of this Section 4.13, “Plan” means (i) each of the “employee benefit plans” (as such term is defined in Section 3(3) of ERISA) of which any of the Company, any Subsidiary, or any ERISA Affiliate is or ever was a sponsor or participating employer or as to which the Company or any Subsidiary or any of their ERISA Affiliates makes or made contributions or is or was required to make contributions or under which the Company, any Subsidiary or any of their ERISA Affiliates has any obligation or Liability (contingent or otherwise), and (ii) any employment, severance or other agreement, arrangement or policy of any of the Company any Subsidiary or any of their ERISA Affiliates (whether written or oral) providing for health, life, vision or dental insurance coverage (including self-insured arrangements), workers’ compensation, disability benefits, supplemental unemployment benefits, vacation benefits or retirement benefits, fringe benefits, or for profit sharing, deferred compensation, bonuses, stock options, stock appreciation or other forms of incentive compensation, or post-retirement insurance, compensation or benefits.

Existence of Plans. (i) Neither the Company nor any of its ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of the Plans provides or provided post-retirement medical or health benefits other than as required by COBRA, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Section 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, nor any of its ERISA Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, Company nor any of its ERISA Affiliates has announced or otherwise made any commitment to create or amend any Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which the Surviving Corporation will be required to make any contributions or with respect to which the Surviving Corporation shall have any obligation or liability whatsoever other than any obligation or liability relating to any claim based on events arising on or before the Closing and any administrative expenses associated with terminating or maintaining any such Plan, whether on behalf of any of the current employees of the Company or on behalf of any other person, after the Closing, or (B) which the Surviving Corporation will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, or any of its ERISA Affiliates. The Company has made available to Broadcom true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, (II) the currently effective Summary Plan Description pertaining to each of the Plans, (III) all annual reports for each of the Plans (including all related schedules), (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent Internal Revenue Service determination letter, opinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (VI) for each unfunded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and inin financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates.

Existence of Plans. Neither Except as disclosed on Section 2.14 of the Company Disclosure Schedule, (i) neither the Company, any Subsidiary nor any of its their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of the Plans provides or provided post-retirement medical or health benefits other than as required by COBRAbenefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Section Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, any Subsidiary nor any of its their respective ERISA Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, any Subsidiary nor any of its their respective ERISA Affiliates Affiliate has announced or otherwise made any commitment to create or amend any Plan, except as may be required by changes in Law. Notwithstanding any statement or indication in this Agreement to the contrary, other than its obligation to provide required COBRA continuation coverage with respect to the Company's medical plan, there are no Plans (Aa) as to which the Surviving Corporation Parent will be required to make any contributions or with respect to which the Surviving Corporation Parent shall have any obligation or liability whatsoever other than any obligation or liability relating to any claim based on events arising on or before the Closing and any administrative expenses associated with terminating or maintaining any such Planwhatsoever, whether on behalf of any of the current employees of the Company or any Subsidiary or on behalf of any other person, after the Closing, or (Bb) which Parent, the Surviving Corporation or any Subsidiary will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, any Subsidiary or any of its their respective ERISA Affiliates. The Company has made available delivered to Broadcom Parent true and complete copies of: (Ii) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (IIii) the currently effective Summary Plan Description pertaining to each of the Plans, (IIIiii) all annual reports for each of the Plans (including all related schedules), (IViv) the most recently filed PBGC Form 1 (if applicable), (Vv) the most recent Internal Revenue Service determination letter, opinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (VIvi) for each unfunded Plan, financial statements consisting of (aA) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (bB) the statement of changes in fund balance and inin financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates.

Existence of Plans. Section 3.22(a) of the Company Disclosure Schedule contains a true and correct list of each Plan. Neither the Company nor any of its ERISA Affiliates maintains or sponsors (or ever maintained or sponsored)sponsors, or makes maintains, participates in, contributes to, or is required to make contributions participate in or contribute to, any Plansor has ever sponsored, maintained, participated in, contributed to, or has been required to participate in or contribute to (iii) none of the Plans is or was a "multi-employer “multiemployer plan", ,” as defined in Section 3(37) or 4001(a)(3) of ERISA, (ii) any pension plan as defined in Section 3(2) of ERISA that is subject to Section 412 of the Code or Section 302 or Title IV of ERISA, (iii) none of the Plans is any Plan, agreement or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of the Plans arrangement that provides or provided post-retirement medical medical, health or health other welfare benefits other than as required by COBRAapplicable law, and (viv) none of the Plans is or was a "any “welfare benefit fund," ” as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Section Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) and the Company and its ERISA Affiliates do not have any liability, whether actual or contingent, or obligation under any such Plan, fund or organization. In addition, neither the Company, Company nor any of its ERISA Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, nor any of its ERISA Affiliates has have announced or otherwise made any commitment to create or amend any Plan. Notwithstanding any statement or indication Except as disclosed in this Agreement to Section 3.22(a)(i) of the contraryCompany Disclosure Schedule, there are no Plans (A) as to which the Surviving Corporation will be required to make any contributions or with respect to which the Surviving Corporation shall have any obligation or liability whatsoever other than any obligation or liability relating to any claim based on events arising on or before the Closing and any administrative expenses associated with terminating or maintaining any such Plan, whether on behalf of any of the current employees of the Company or on behalf of any other person, after the Closing, or (B) which the Surviving Corporation will could not be able to terminate immediately after the Closing in accordance with their terms and ERISAERISA without material Liability to the Company. With respect to each of such PlansPlan, at the Closing there will be no unrecorded liabilities material Liabilities in accordance with the Company’s normal accounting practices with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, or any of its ERISA Affiliates. The Company has made available to Broadcom the Buyer true and complete copies of: (Ii) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (IIii) the currently effective Summary Plan Description summary plan description pertaining to each of the Plans, if any, (IIIiii) all the three (3) most recent annual reports of Form 5500 for each of the Plans (including all related schedules), (IV) the most recently filed PBGC Form 1 (if applicable)any, (Viv) the most recent Internal Revenue Service IRS determination letter, opinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 401(a) of the Internal Revenue Code and each amendment to each of the foregoing documentsCode, and (VIv) for each unfunded Plan, financial statements consisting of (aA) the consolidated statement of assets and liabilities Liabilities of such Plan as of its most recent valuation date, and (bB) the statement of changes in fund balance and inin financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which financial statements fairly present in all material respects the financial condition and the results of operations of such Plan in accordance with GAAP applied in accordance with past practice.

Existence of Plans. Neither Except as disclosed in Section 2.14(a) of the Company Disclosure Schedule, (i) neither the Company nor any of its ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of the Plans provides or provided post-retirement medical or health benefits other than as required by COBRAbenefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Section Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, Company nor any of its ERISA Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, Company nor any of its ERISA Affiliates Affiliate has announced or otherwise made any commitment to create or amend any Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which the Surviving Corporation Broadcom will be required to make any contributions or with respect to which the Surviving Corporation Broadcom shall have any obligation or liability whatsoever other than any obligation or liability relating to any claim based on events arising on or before the Closing and any administrative expenses associated with terminating or maintaining any such Planwhatsoever, whether on behalf of any of the current employees of the Company or any Subsidiary or on behalf of any other person, after the Closing, or (B) which Broadcom, the Surviving Corporation will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, Company or any of its ERISA Affiliates. The Company has made available delivered to Broadcom true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of the Plans, (III) all annual reports for each of the Plans (including all related schedules), (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent Internal Revenue Service determination letter, opinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (VI) for each unfunded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and inin financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly present the financial condition and the results of operations of such Plan in accordance with GAAP, consistently applied, as of such dates.

Existence of Plans. Neither Except as disclosed in Section 2.14(a) of the Company Disclosure Schedule, (i) neither the Company, any Subsidiary nor any of its their respective ERISA Affiliates maintains or sponsors (or ever maintained or sponsored), or makes or is required to make contributions to, any Plans, (ii) none of the Plans is or was a "multi-employer plan", as defined in Section 3(37) of ERISA, (iii) none of the Plans is or was a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of the Plans provides or provided post-retirement medical or health benefits other than as required by COBRAbenefits, (v) none of the Plans is or was a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Section Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company, Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates is or was a party to any collective bargaining agreement, and (vii) neither the Company, Company nor any of its Subsidiaries nor any of their respective ERISA Affiliates has announced or otherwise made any commitment to create or amend any Plan. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which the Surviving Corporation Broadcom will be required to make any contributions or with respect to which the Surviving Corporation Broadcom shall have any obligation or liability whatsoever other than any obligation or liability relating to any claim based on events arising on or before the Closing and any administrative expenses associated with terminating or maintaining any such Planwhatsoever, whether on behalf of any of the current employees of the Company or any Subsidiary or on behalf of any other person, after the Closing, or (B) which Broadcom, the Surviving Corporation and their respective Subsidiaries will not be able to terminate immediately after the Closing in accordance with their terms and ERISA. With respect to each of such Plans, at the Closing there will be no unrecorded liabilities with respect to the establishment, implementation, operation, administration or termination of any such Plan, or the termination of the participation in any such Plan by the Company, Company or any of its Subsidiaries or any of their respective ERISA Affiliates. The Company has made available delivered to Broadcom true and complete copies of: (I) each of the Plans and any related funding agreements thereto (including insurance contracts) including all amendments, all of which are legally valid and binding and in full force and effect and there are no defaults thereunder, (II) the currently effective Summary Plan Description pertaining to each of the Plans, (III) all annual reports for each of the Plans (including all related schedules), (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent Internal Revenue Service determination letter, opinion, notification or advisory letter (as the case may be) for each Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code and each amendment to each of the foregoing documents, and (VI) for each unfunded Plan, financial statements consisting of (a) the consolidated statement of assets and liabilities of such Plan as of its most recent valuation date, and (b) the statement of changes in fund balance and inin financial position or the statement of changes in net assets available for benefits under such Plan for the most recently-ended plan year, which such financial statements shall fairly