Common use of Pension and Employee Benefits Clause in Contracts

Pension and Employee Benefits. (i) Section 3.1(q)(i) of the Auxilium Disclosure Letter sets forth a true, complete and correct list of each material Auxilium Plan. (ii) With respect to each material Auxilium Plan, Auxilium has provided or otherwise made available to Endo (A) a true and complete copy of each Auxilium Plan, including any amendments thereto and all material supporting documents; (B) latest annual report, if any; (C) copies of all material communications received in the last three years with applicable Governmental Authorities; (D) each trust or other funding arrangement; (E) each summary plan description (if applicable); and (F) where applicable, the most recent financial statements and actuarial or other valuation reports prepared with respect thereto. (iii) The consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event, (A) entitle any current or former employee, director, officer, independent contractor or other service provider of Auxilium to termination or severance pay (or a material increase thereof), (B) accelerate the time of funding (through a grantor trust or otherwise), payment or vesting, or increase the amount of compensation or benefit due any such employee, director, officer, independent contractor or other service provider, or (C) cause amounts payable under the Auxilium Plans to fail to be deductible for U.S. federal income tax purposes by virtue of Section 280G of the Code. No employee or individual consultant or independent contractor has a contractual entitlement to a gross-up or additional payment by reason of the tax required by Section 409A or 4999 of the Code being imposed upon such person (it being understood that a breach of contract claim shall not be considered a contractual entitlement for purposes of this clause (iii)). (iv) Each Auxilium Plan has been established, registered, qualified, funded, invested, operated and administered in all material respects in accordance with its terms and applicable Law (including Section 409A of the Code). There are no pending or, to the knowledge of Auxilium, threatened material actions, suits, disputes or claims by or on behalf of any Auxilium Plan, by any employee or beneficiary covered under any such Auxilium Plan, as applicable, or otherwise involving any such Auxilium Plan (other than routine claims for benefits). (v) No Auxilium Plan provides welfare or post-retirement benefits, including, without limitation, death or medical benefits (whether or not insured), beyond retirement or termination of service to employees or former employees or to the beneficiaries or dependents of such employees, other than coverage mandated solely by applicable Law or at the expense of the participant or the participant’s beneficiary or for a limited period of time following a termination of employment pursuant to an Employment Agreement. (vi) Neither Auxilium, nor any Person that is a member of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group,” with Auxilium, in each case as defined in Section 414(b), (c), (m) or (o) of the Code sponsors, contributes to or has any liability under, or in the past six (6) years sponsored, contributed to or had liability under, a plan subject to Title IV or Section 302 of the U.S. Employee Retirement Income Security Act of 1974, as amended. (vii) Each Auxilium Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of Auxilium, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Auxilium Plan. (viii) All contributions, premiums or Taxes required to be made or paid by Auxilium or any of its Subsidiaries, as the case may be, under or in connection with the Auxilium Plans have been made in a timely fashion in accordance with Laws and the terms of the applicable Auxilium Plan.

Pension and Employee Benefits. (i) Section 3.1(q)(i) of the Auxilium Pozen Disclosure Letter sets forth a true, complete and correct list of each material Auxilium Pozen Plan. (ii) With respect to each material Auxilium Pozen Plan, Auxilium Pozen has provided or otherwise made available to Endo Parent and Tribute (A) a true and complete copy of each Auxilium Pozen Plan, including any amendments thereto and all material supporting documents; (B) latest annual report, if any; (C) copies of all material communications received in the last three (3) years with applicable Governmental Authorities; (D) each trust or other funding arrangement; (E) each summary plan description (if applicable); and (F) where applicable, the most recent financial statements and actuarial or other valuation reports prepared with respect thereto. (iii) The consummation of the transactions contemplated by this Agreement will not, either alone or in combination with another event, (A) entitle any current or former employee, director, officer, independent contractor or other service provider of Auxilium Pozen or any Pozen Subsidiary to termination or severance pay (or a material increase thereof), (B) accelerate the time of funding (through a grantor trust or otherwise), payment or vesting, or increase the amount of compensation or benefit due any such employee, director, officer, independent contractor or other service providerprovider of Pozen or any Pozen Subsidiary, or (C) cause amounts payable under the Auxilium Pozen Plans or Pozen Employment Agreements to fail to be deductible for U.S. federal income tax purposes by virtue of Section 280G of the Code. No employee or individual consultant or independent contractor has a contractual entitlement to a gross-up or additional payment by reason of the tax tax, penalties or interest required by Section 409A or 4999 of the Code being imposed upon such person (it being understood that a breach of contract claim shall not be considered a contractual entitlement for purposes of this clause (iii))person. (iv) Each Auxilium Pozen Plan has been established, registered, qualified, funded, invested, maintained, operated and administered in all material respects in accordance with its terms and applicable Law (including Section 409A of the Code). There are no pending or, to the knowledge of AuxiliumPozen, threatened material actions, suits, disputes or claims by or on behalf of any Auxilium Pozen Plan, by any employee or beneficiary covered under any such Auxilium Pozen Plan, as applicable, or otherwise involving any such Auxilium Pozen Plan (other than routine claims for benefits). (v) No Auxilium Pozen Plan provides welfare or post-retirement benefits, including, without limitation, death or medical benefits (whether or not insured), beyond retirement or termination of service to employees or former employees or to the beneficiaries or dependents of such employees, other than coverage mandated solely by applicable Law or at the expense of the participant or the participant’s beneficiary or for a limited period of time following a termination of employment pursuant to an Employment Agreementbeneficiary. (vi) Neither AuxiliumPozen, nor any Person that is a member Pozen Subsidiary or any of a “controlled group of corporations” with, or is under “common control” with, or is a member of the same “affiliated service group,” with Auxilium, in each case as defined in Section 414(b), (c), (m) or (o) of the Code sponsorstheir ERISA Affiliates, contributes to or has any liability under, or in the past six (6) years sponsored, contributed to or had liability under, under (A) a plan subject to Section 412 of the Code or Title IV or Section 302 of ERISA, (B) any “multiemployer plan” as defined in Sections 3(37)(A) or 4001(a)(3) of ERISA, (C) any plan that is subject to Section 413(c) of the U.S. Employee Retirement Income Security Act Code or Sections 4063, 4064 or 4066 of 1974, as amendedERISA or (D) any multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA. (vii) Each Auxilium Pozen Plan that is intended to be qualified under Section 401(a) of the Code has obtained a current favorable determination letter (or opinion letter, if applicable) as to its qualified status under the Code, and, to the knowledge of AuxiliumPozen, there are no existing circumstances or any events that have occurred that would reasonably be expected to affect materially and adversely the qualified status of any such Auxilium Pozen Plan. (viii) All contributions, premiums or Taxes required to be made or paid by Auxilium Pozen or any of its Subsidiaries, as the case may be, under or in connection with the Auxilium Pozen Plans have been made in a timely fashion in accordance with Laws and the terms of the applicable Auxilium Pozen Plan. (ix) Pozen and each Pozen Subsidiary has, for purposes of each Pozen Plan, correctly classified all individuals performing services for either or both of them as common law employees, independent contractors or agents, as applicable. (x) None of Pozen, any of its Subsidiaries or any other persons with respect to whom Pozen or any Pozen Subsidiary would have an obligation to indemnify has engaged in a prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) that could result in a material liability to Pozen or any Pozen Subsidiary.