Common use of Multiemployer Pension Plan Clause in Contracts

Multiemployer Pension Plan. (a) With respect to the Bay Area Paint Makers and Employers Pension Trust (the "Multiemployer Plan"), Buyer, on the one hand, and Dexter, on the other, intend to satisfy the requirements of Section 4204 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") to avoid a withdrawal by Dexter as a result of the transactions contemplated hereby from the Multiemployer Plan in respect of the Continued Employees covered by the Multiemployer Plan. In this regard, effective as of the Closing, Buyer shall become a successor employer contributing to the Multiemployer Plan on behalf of the Continued Employees participating therein pursuant to the terms of the applicable collective bargaining agreement and Buyer shall make contributions after the Closing Date to the Multiemployer Plan for substantially the same number of contribution base units (as defined in Section 4001 (a)(11) of ERISA) that Dexter had an obligation to contribute to the Multiemployer Plan. (b) With respect to the Multiemployer Plan, Buyer shall provide, as soon as practicable after the Closing Date, a bond issued by a corporate surety company that is an acceptable surety for purposes of Section 412 of ERISA with a five-year term commencing as of the first day of the first plan year of the Multiemployer Plan immediately following the Closing Date (the "Protected Period") or establish an escrow account or other arrangement with a bank or similar financial institution, with the same term, satisfactory to the trustees of the Multiemployer Plan, in an amount equal to the greater of (x) the average of Dexter's annual contributions to the Multiemployer Plan for the three plan years preceding the plan year in which the Closing Date occurs, or (y) Dexter's contributions to the Multiemployer Plan for the plan year preceding the plan year in which the Closing Date occurs. (c) If there is a partial or complete withdrawal (as such terms are defined in Sections 4205(a) and 4203(a) of ERISA, respectively) from the Multiemployer Plan by Buyer prior to the end of the Protected Period, Dexter shall, to the extent required by applicable law, rule or regulation, be secondarily liable for any withdrawal liability Dexter would have had to the Multiemployer Plan if Dexter and Buyer had not entered into the agreements contained in this Section 12.04(f) to the extent the liability of Buyer to the Multiemployer Plan as a result of either a complete or partial withdrawal therefrom is not paid by Buyer to the Multiemployer Plan in respect of such withdrawal. With respect to the Multiemployer Plan, if either Buyer, on the one hand, or Dexter, on the other, with the consent of the other party, requests the Pension Benefit Guaranty Corporation ("PBGC") to grant a variance or exemption from the requirements of Section 4204(a)(1)(B) or (C) of ERISA and such variance or exemption is granted or in the event an exemption from such requirements is available under applicable law, rule or regulation and the Multiemployer Plan confirms that such exemption is applicable, then subparagraphs (ii) and (iii), other than this sentence, shall be void and not enforceable. (d) Notwithstanding anything to the contrary set forth in subparagraphs (ii) and (iii) above, Buyer shall indemnify and hold harmless Dexter and the other members of the Dexter Group for all losses (including any secondary liability contemplated by subparagraph (c) above) which are incurred or become payable (A) as a result of the failure of Buyer to comply with the provisions of this Section 12.04(f) or (B) as a result of partial or complete withdrawal of Buyer from the Multiemployer Plan after the Closing Date. Either Buyer, on the one hand, or Dexter, on the other, shall promptly notify the other party of any demand for payment of withdrawal liability received by it from the Multiemployer Plan. (e) In the event that Dexter and Buyer determine that the amount of Dexter's withdrawal liability to the Multiemployer Plan as of the Closing Date would have been zero, had Dexter withdrawn in a complete withdrawal from the Plan on the Closing Date, the foregoing provisions of this Section 12.02(f) shall be deemed to be of no further force and effect with respect to the Multiemployer Plan, and both Dexter and Buyer's rights and duties thereunder with respect to the Multiemployer Plan shall terminate, except that Buyer shall be entitled to a return of any monies deposited in escrow by it pursuant to the foregoing. Buyer and Dexter agree that they will make, execute and deliver to each other and to the Multiemployer Plan and the PBGC, without payment of any kind whatsoever, all documents and instruments which are reasonably required to effectuate the terms and conditions of this Article and to comply with the provisions of Section 4204 of ERISA and applicable PBGC Regulations thereunder.

Multiemployer Pension Plan. (ai) With respect Seller and Purchaser intend that the Transactions shall not result in complete or partial withdrawal by Seller or any of its subsidiaries (including the Transferred Entity) from any Business Benefit Plan that is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (an “MEPP”) and Seller and Purchaser shall reasonably cooperate to prevent the imposition of a withdrawal liability by any MEPP in connection with the Transactions, and, effective as of the Closing Date, Purchaser shall assume Seller’s obligations to make contributions to the Bay Area Paint Makers and Employers Pension Trust (the "Multiemployer Plan"), Buyer, on the one hand, and Dexter, on the other, intend to satisfy MEPP in accordance with the requirements of Section 4204 of ERISA. (ii) Seller and Purchaser agree that, unless the Employee Retirement Income Security Act PBGC waives the requirements of 1974Section 4204(a)(1)(B) of ERISA, as amended ("ERISA") to avoid a withdrawal by Dexter as a result of the transactions contemplated hereby if Purchaser withdraws from the Multiemployer Plan in an MEPP with respect of the Continued Employees covered by the Multiemployer Plan. In this regard, effective as of the Closing, Buyer shall become a successor employer contributing to the Multiemployer Plan on behalf of Transferred Employees within the Continued Employees participating therein pursuant to the terms of the applicable collective bargaining agreement and Buyer shall make contributions first five plan years beginning after the Closing Date and does not pay its liability to such MEPP on account of such withdrawal, Seller shall be secondarily liable to such plan for any withdrawal liability that Purchaser would have had to the Multiemployer Plan for substantially plan with respect to the same number Transferred Employees in the absence of contribution base units (as defined in Section 4001 (a)(114204(a) of ERISA) that Dexter had an obligation to contribute to the Multiemployer Plan. (b) With respect to the Multiemployer Plan, Buyer shall provide, as soon as practicable after the Closing Date, a bond issued by a corporate surety company that is an acceptable surety for purposes of Section 412 of ERISA with a five-year term commencing as of the first day of the first plan year of the Multiemployer Plan immediately following the Closing Date (the "Protected Period") or establish an escrow account or other arrangement with a bank or similar financial institution, with the same term, satisfactory to the trustees of the Multiemployer Plan, in an amount equal to the greater of (x) the average of Dexter's annual contributions to the Multiemployer Plan for the three plan years preceding the plan year in which the Closing Date occurs, or (y) Dexter's contributions to the Multiemployer Plan for the plan year preceding the plan year in which the Closing Date occurs. (c) If there is a partial or complete withdrawal (as such terms are defined in Sections 4205(a) and 4203(a) of ERISA, respectively) from the Multiemployer Plan by Buyer prior to the end of the Protected Period, Dexter shall, to the extent required by applicable lawERISA. Notwithstanding the provisions of the preceding sentence and Section 4204 of ERISA, rule it is expressly agreed that if Seller or regulationany of its subsidiaries, be secondarily liable for incurs any secondary withdrawal liability Dexter would have had to under the Multiemployer Plan if Dexter preceding sentence, Purchaser shall indemnify and Buyer had not entered into the agreements contained in this Section 12.04(f) to the extent the liability hold them harmless from any and all losses incurred by Seller or any of Buyer to the Multiemployer Plan as a result of either a complete or partial withdrawal therefrom is not paid its subsidiaries by Buyer to the Multiemployer Plan in respect reason of such withdrawal. With respect secondary liability. (iii) Purchaser may seek, pursuant to the Multiemployer PlanPBGC Regulations §§ 4204.11, if either Buyer4204.12 and 4204.13, on the one hand, or Dexter, on the other, with the consent of the other party, requests the Pension Benefit Guaranty Corporation ("PBGC") to grant a variance or exemption from the requirements bond/escrow requirement of Section 4204(a)(1)(B) or (C) of ERISA and ERISA. Seller shall cooperate with Purchaser in connection with Purchaser’s request for such variance or exemption is granted or in the event an exemption from such requirements is available under applicable lawvariance, rule or regulation and the Multiemployer Plan confirms that such exemption is applicable, then subparagraphs (ii) and (iii), other than this sentence, which cooperation shall be void and not enforceable. (d) Notwithstanding anything to the contrary set forth in subparagraphs (ii) and (iii) above, Buyer shall indemnify and hold harmless Dexter and the other members of the Dexter Group for all losses (including any secondary liability contemplated by subparagraph (c) above) which are incurred or become payable include: (A) if so requested by Purchaser, timely and jointly with Purchaser, notifying the MEPP in writing, as a result contemplated by PBGC Regulation § 4204.11, of the failure of Buyer to comply with the provisions of this Section 12.04(f) or (B) as a result of partial or complete withdrawal of Buyer from the Multiemployer Plan after the Closing Date. Either Buyer, on the one hand, or Dexter, on the other, shall promptly notify the other party of any demand for payment of withdrawal liability received by it from the Multiemployer Plan. (e) In the event that Dexter and Buyer determine their intention that the amount of Dexter's withdrawal liability to the Multiemployer Plan as of the Closing Date would have been zero, had Dexter withdrawn in a complete withdrawal from the Plan on the Closing Date, the foregoing provisions of this Section 12.02(f) shall Transactions be deemed to be of no further force and effect with respect to the Multiemployer Plan, and both Dexter and Buyer's rights and duties thereunder with respect to the Multiemployer Plan shall terminate, except that Buyer shall be entitled to a return of any monies deposited in escrow covered by it pursuant to the foregoing. Buyer and Dexter agree that they will make, execute and deliver to each other and to the Multiemployer Plan and the PBGC, without payment of any kind whatsoever, all documents and instruments which are reasonably required to effectuate the terms and conditions of this Article and to comply with the provisions of Section 4204 of ERISA and applicable (B) providing Purchaser or the MEPP with such information that is reasonably available to Seller and that Purchaser or the MEPP reasonably requests in connection with such request for such variance. If the MEPP determines that Purchaser’s request does not qualify for a variance of the bond/escrow requirement, Purchaser shall provide the bond or escrow required under Section 4204(a)(1)(B) within the time period set forth in PBGC Regulation § 4204.11(d), provided that the foregoing shall not be deemed to restrict the ability of Purchaser to seek a variance or exemption pursuant to PBGC Regulations thereunder§§ 4204.21 and 4204.22.

Multiemployer Pension Plan. (a) With respect to the Bay Area Paint Makers and Employers Major League Baseball Players Pension Trust Plan (the "Multiemployer “MEPPA Plan"”), Buyer, on the one hand, and Dexter, on the other, intend parties hereto agree to satisfy the requirements of comply with Section 4204 of the Employee Retirement Income Security Act of 1974, ERISA as amended follows: ("ERISA"i) to avoid a withdrawal by Dexter as a result of the transactions contemplated hereby from the Multiemployer Plan in respect of the Continued Employees covered by the Multiemployer Plan. In this regard, effective as of the Closing, Buyer shall become a successor employer contributing to the Multiemployer Plan on behalf of the Continued Employees participating therein pursuant to the terms of the applicable collective bargaining agreement and Buyer shall make contributions after the Closing Date (subject to its right to withdraw), the Purchasers shall continue to contribute to the Multiemployer MEPPA Plan for with respect to the operations associated with the Purchased Assets in at least substantially the same number of contribution base units (as defined in Section 4001 (a)(11) of ERISA) that Dexter for which Seller had an obligation to contribute to the Multiemployer Plan. MEPPA Plan (b) With respect to within the Multiemployer Plan, Buyer shall provide, as soon as practicable after the Closing Date, a bond issued by a corporate surety company that is an acceptable surety for purposes meaning of Section 412 of ERISA with a five-year term commencing as of the first day of the first plan year of the Multiemployer Plan immediately following the Closing Date (the "Protected Period") or establish an escrow account or other arrangement with a bank or similar financial institution, with the same term, satisfactory to the trustees of the Multiemployer Plan, in an amount equal to the greater of (x) the average of Dexter's annual contributions to the Multiemployer Plan for the three plan years preceding the plan year in which the Closing Date occurs, or (y) Dexter's contributions to the Multiemployer Plan for the plan year preceding the plan year in which the Closing Date occurs. (c) If there is a partial or complete withdrawal (as such terms are defined in Sections 4205(a) and 4203(a4204(a)(1)(A) of ERISA, respectively) from the Multiemployer Plan by Buyer prior to the end extent necessary to comply with Section 4204 of the Protected Period, Dexter shall, ERISA; (ii) to the extent required by applicable lawERISA Section 4204(A)(1)(B) and the regulations issued thereunder, rule or regulation, be secondarily liable for any withdrawal liability Dexter would have had Purchasers shall timely provide to the Multiemployer MEPPA Plan if Dexter a bond, letter of credit or amount in escrow in such form and Buyer had not entered into the agreements contained in this Section 12.04(f) amount as is acceptable to the extent the liability of Buyer MEPPA Plan that conforms to the Multiemployer Plan as a result of either a complete or partial withdrawal therefrom is not paid by Buyer to the Multiemployer Plan in respect of such withdrawal. With respect to the Multiemployer Plan, if either Buyer, on the one hand, or Dexter, on the other, with the consent of the other party, requests the Pension Benefit Guaranty Corporation ("PBGC") to grant a variance or exemption from all the requirements of Section 4204(a)(1)(B) of ERISA; provided, that to the extent reasonably requested by Purchasers, Seller will cooperate with Purchasers in preparing and submitting a request for waiver of such bond obligation to the PBGC pursuant to Pension Benefit Guaranty Corporation Regulation Section 4204.21 and 4204.22; (iii) If Purchasers withdraw from the MEPPA Plan in a complete withdrawal, or a partial withdrawal with respect to the operations associated with the Purchased Assets, from the MEPPA Plan during the first five (C5) of ERISA plan years commencing with the first plan year that begins after the Closing, (i) Purchasers shall pay any withdrawal liability to the MEPPA Plan and such variance or exemption is granted or in the event an exemption from such requirements is available under applicable law, rule or regulation and the Multiemployer Plan confirms that such exemption is applicable, then subparagraphs (ii) to the extent required by ERISA Section 4204(a)(1)(C) and (iii)the regulations issued thereunder, other than this sentence, Seller shall be void and not enforceable. (d) Notwithstanding anything secondarily liable to the contrary set forth in subparagraphs (ii) MEPPA Plan for any withdrawal liability if the liability of Purchasers with respect to the MEPPA Plan is not paid. If the liability of Purchasers with respect to the MEPPA Plan is not paid, Purchasers shall notify Seller and (iii) aboveits ERISA Affiliates as soon as practicable following Purchasers’ withdrawal from the MEPPA Plan, Buyer shall and Purchasers agree to indemnify and hold harmless Dexter Seller and its ERISA Affiliates for, from, and against any such withdrawal liability that arises due to Purchasers’ withdrawal as described in this Section 8.2(h) and to which Seller and its ERISA Affiliates become secondarily liable to the other members MEPPA Plan; (iv) To the extent required by Section 4204(a)(3)(A) of ERISA, if, all, or substantially all, of the Dexter Group assets of Seller or its ERISA Affiliates are distributed, or if Seller and its ERISA Affiliates are liquidated before the end of the five (5) plan year period commencing with the first plan year that begins after Closing, then Seller and its ERISA Affiliates shall provide to the MEPPA Plan a bond or amount in escrow equal to the present value of the withdrawal liability such entities would have to the MEPPA Plan but for all losses this Section and compliance with Section 4204 of ERISA; and (including any secondary liability contemplated by subparagraph (cv) If only a portion of the assets of Seller and its ERISA Affiliates are distributed during the period described in Section 8.2(h)(iv) above) which are incurred , Seller and its ERISA Affiliates shall provide a bond or become payable (A) as a result of the failure of Buyer to comply with the provisions of this Section 12.04(f) or (B) as a result of partial or complete withdrawal of Buyer from the Multiemployer Plan after the Closing Date. Either Buyer, on the one hand, or Dexter, on the other, shall promptly notify the other party of any demand for payment of withdrawal liability received by it from the Multiemployer Plan. (e) In the event that Dexter and Buyer determine that the an amount of Dexter's withdrawal liability to the Multiemployer Plan as of the Closing Date would have been zero, had Dexter withdrawn in a complete withdrawal from the Plan on the Closing Date, the foregoing provisions of this Section 12.02(f) shall be deemed to be of no further force and effect with respect to the Multiemployer Plan, and both Dexter and Buyer's rights and duties thereunder with respect to the Multiemployer Plan shall terminate, except that Buyer shall be entitled to a return of any monies deposited in escrow as required by it pursuant to the foregoing. Buyer and Dexter agree that they will make, execute and deliver to each other and to the Multiemployer Plan and the PBGC, without payment of any kind whatsoever, all documents and instruments which are reasonably required to effectuate the terms and conditions of this Article and to comply with the provisions of Section 4204 of ERISA and applicable PBGC Regulations the regulations thereunder.