U.S. Plans. Each Plan is in compliance with all requirements of ERISA and the regulations and published interpretations thereunder except to the extent such non-compliance could not reasonably be expected to result in a Material Adverse Effect. No Reportable Event has occurred as to which Holdings, the Borrower, any Restricted Subsidiary or any ERISA Affiliate was required to file a report with the PBGC that alone or together with any other Reportable Event would reasonably be expected to result in a liability of such Borrower to the PBGC in an aggregate amount in excess of $50,000,000. The aggregate present value of all benefit liabilities under the Plans (based on the assumptions used to fund such Plans) did not, as of the last annual valuation dates applicable thereto, exceed the aggregate value of the assets of the Plans by more than 10% of Consolidated Net Worth. None of Holdings, the Borrower, any Restricted Subsidiary or any ERISA Affiliate has incurred any Withdrawal Liability that would reasonably be expected to result in a Material Adverse Effect. None of Holdings, the Borrower, any Restricted Subsidiary or any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization or has been terminated within the meaning of Title IV of ERISA, and none of Holdings, the Borrower or any Restricted Subsidiary has knowledge of any fact which would reasonably be expected to result in the reorganization or termination of a Multiemployer Plan where such reorganization or termination has resulted or would reasonably be expected to result, through increases in the contributions required to be made to such Plan or otherwise, in a Material Adverse Effect.
U.S. Plans. Each Plan is in compliance with all requirements of ERISA and the regulations and published interpretations thereunder except to the extent such non-compliance could not reasonably be expected to result in a Material Adverse Effect. No Reportable Event has occurred as to which any Borrower or any ERISA Affiliate was required to file a report with the PBGC that alone or together with any other Reportable Event would reasonably be expected to result in a liability of such Borrower to the PBGC in an aggregate amount in excess of $50,000,000. Neither such Borrower nor any ERISA Affiliate has incurred any Withdrawal Liability that would reasonably be expected to result in a Material Adverse Effect. Neither such Borrower nor any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization or has been terminated within the meaning of Title IV of ERISA, and no Responsible Officer of any Borrower has knowledge of any fact which would reasonably be expected to result in the reorganization or termination of a Multiemployer Plan where such reorganization or termination has resulted or would reasonably be expected to result, through increases in the contributions required to be made to such Plan or otherwise, in a Material Adverse Effect.
U.S. Plans. As of the date of this Agreement, neither the Borrower nor any ERISA Affiliate maintains, contributes to or has any liability in any way, directly or indirectly (whether contingent or otherwise), for any “multiemployer plan” (as defined under Section 3(37) or 4001(a)(3) of ERISA) (“Multiemployer Plan”), or any benefit plan covered by Title IV of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or that is subject to the minimum funding standards under Section 412 of the Code. Except as would not reasonably be expected to result in a Material Adverse Effect, individually or in the aggregate, each benefit plan (other than a Multiemployer Plan) that is maintained or contributed to by any Company or ERISA Affiliate and covered by Title IV of ERISA, is in compliance with all applicable requirements of ERISA and the Code. None of the following events has occurred or is reasonably expected to occur that would subject any Loan Party to any Tax, penalty or other liabilities, which Tax, penalty or other liabilities individually or in the aggregate would reasonably be expected to result in a Material Adverse Effect: (i) a complete or partial withdrawal (within the meanings of Section 4203 or 4205 of ERISA) by any Company or, to the knowledge of such Company, any ERISA Affiliate from a Multiemployer Plan, or (ii) notification received by any Company that a Multiemployer Plan is in “reorganization” (within the meaning of Sections 4245 or 4241 of ERISA). For purposes of the foregoing, “ERISA Affiliate” means any entity that, together with the Borrower, is treated as a single employer under Section 414(b), (c), (m), or (o) of the Code.
U.S. Plans. It and each of its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the regulations and published interpretations thereunder. No Reportable Event has occurred as to which such Borrower or any ERISA Affiliate was required to file a report with the PBGC that alone or together with any other Reportable Event would reasonably be expected to result in a liability of such Borrower to the PBGC in an aggregate amount in excess of $25,000,000. The aggregate present value of all benefit liabilities under the Plans (based on the assumptions used to fund such Plans) did not, as of the last annual valuation dates applicable thereto, exceed the aggregate value of the assets of the Plans by more than 10% of Consolidated Net Worth. Neither such Borrower nor any ERISA Affiliate has incurred any Withdrawal Liability that would reasonably be expected to result in a Material Adverse Effect. Neither such Borrower nor any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization or has been terminated within the meaning of Title IV of ERISA, and no Responsible Officer of any Borrower has knowledge of any fact which would reasonably be expected to result in the reorganization or termination of a Multiemployer Plan where such reorganization or termination has resulted or would reasonably be expected to result, through increases in the contributions required to be made to such Plan or otherwise, in a Material Adverse Effect.
U.S. Plans. Effective as of the Closing Date, Newco or a Subsidiary thereof shall assume each “employee pension benefit plan” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974 (“ERISA”)) and each “employee welfare benefit plan” (as defined in Section 3(1) of ERISA) maintained by the Company and all other employment, severance and benefit plans, contracts or arrangements covering Newco Employees, including those plans, contracts and arrangements listed on Section 8.2(a) of the Disclosure Schedule (regardless of whether they are funded or unfunded), other than any plans, contracts or arrangements relating to equity-based compensation (the “Assumed U.S. Benefit Plans”) and, for the avoidance of doubt, excluding any plans, contracts or arrangements substantially for the benefit of Newco Employees who are located outside of the United States. The Company and Newco shall take all such action as may be necessary or appropriate in order to establish Newco as successor to the Company as to all rights, duties, liabilities and obligations under or with respect to each of the Assumed U.S. Benefit Plans, including obtaining the written release of the Company and IHCI from such rights, duties, liabilities and obligations under or with respect to the Assumed U.S. Benefit Plans. Effective as of the Closing Date, all active participants other than Newco Employees shall cease to participate actively in such plans. Newco shall succeed the Company as the sponsor of the Assumed U.S. Benefit Plans, and agrees to indemnify and hold the Company Indemnitees harmless from and against all Indemnifiable Losses assessed against, resulting from, imposed upon or incurred by the Company with respect to the Assumed U.S. Benefit Plans, other than any Indemnifiable Losses with respect to Retained Employees.
U.S. Plans. Schedule 3.9(a) of this Agreement sets forth a complete and correct list of all “employee benefit plans”, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), maintained by Company to which Company has any obligation or liability, contingent or otherwise; and all bonus or other incentive compensation, deferred compensation, salary continuation, disability, stock award, stock option, stock purchase, severance, parachute, medical, vision, dental or other health plan, life insurance plan, flexible spending account, cafeteria plan, vacation or other material employee benefit policies or arrangements which Company maintains or to which Company has any obligation or liability (contingent or otherwise) (collectively referred to as the “Company Plans” and individually as a “Company Plan”).
(i) None of the Company Plans is a multiemployer plan or a multiple employer plan. Company has not present liability due to a complete or partial withdrawal from a multiemployer plan or multiple employer plan or due to the termination or reorganization of a multiple employer plan, and no events have occurred and no circumstances exist that could reasonably be expected to result in any such liability to Company.
(ii) None of the Company Plans is a single employer plan and Company has no outstanding liability under Section 4062 of ERISA to the Pension Benefit Guaranty Corporation or to a trustee appointed under Section 4042 of ERISA, and no events have occurred and no circumstances exist that could reasonably be expected to result in any such liability to Company.
(iii) Each Company Plan intended to qualify under Section 401(a) of the Code, and the trust maintained pursuant thereto, has been determined to be so qualified and exempt from taxation under Section 501(a) of the Code, and nothing has occurred with respect to the operation of any such Company Plan that could reasonably be expected to adversely affect such qualification or tax-exempt status.
(iv) All contributions (including all employer contributions and employee contributions) required to have been made by Company under the Company Plans or by law to any funds or trusts established thereunder or in connection therewith have been made by the due date thereof (including any valid extension), and all contributions for any period ending on or before the Closing Date which become due (including any valid extension) will have been paid by the Closing Date.
(v) There has been...
U.S. Plans. Effective as of the Closing Date, the participation of Current Employees in the Axxxxx Profit Sharing Trust (the “Axxxxx 401(k) Plan”) with respect to future contributions from and after the Closing Date shall cease and such employees shall have the distribution, rollover and other rights afforded under the terms of the Axxxxx 401(k) Plan to terminated employees; provided, however, that eligible Current US Employees who participate in the Axxxxx 401(k) Plan and who were employed by the Sellers on September 30, 2007, shall receive an allocation of the employer profit sharing contribution, if any, for the plan year that ends on such date, notwithstanding that the contribution funding date may be later than the Closing Date. Any such allocation shall be determined in accordance with the terms of the Axxxxx 401(k)
U.S. Plans. Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, none of Inco, its Restricted Subsidiaries, the Subsidiary Borrowers and their respective ERISA Affiliates (i) has any Accumulated Funding Deficiency, whether or not waived, (ii) has failed to make any required contribution or payment to any U.S. Pension Plan, or made any amendment to any U.S. Pension Plan, which has resulted or could reasonably be expected to result, in the imposition of a lien or the posting of a bond or other security under Section 302(f) of ERISA or Section 401(a)(29) of the Code, (iii) has incurred, or is reasonably likely to incur, any liability under Title IV of ERISA (other than a liability to the PBGC for premiums under Section 4007 of ERISA), (iv) has failed to comply with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan or is in material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to any Multiemployer Plan) or (v) has violated any provision of ERISA.
U.S. Plans. None of the Borrowers or their respective Subsidiaries or ERISA Affiliates maintain or contribute to, or have any liability or contingent liability with respect to, any Title IV Plan or any Multiemployer Plan. Except as would not reasonably be expected to result in Liabilities to the Credit Parties in excess of $100,000 in the aggregate, (w) each Benefit Plan, and each trust thereunder, intended to qualify for tax exempt status under Section 401 or 501 of the Code so qualifies, (x) each Benefit Plan is in compliance with applicable provisions of ERISA, the Code and other Requirements of Law, (y) there are no existing or pending (or to the knowledge of any Credit Party, threatened) claims (other than routine claims for benefits in the normal course), sanctions, actions, lawsuits or other proceedings or investigation involving any Benefit Plan to which any Credit Party incurs or otherwise has or could reasonably be expected to have an obligation or any Liability and (z) no ERISA Event is reasonably expected to occur. On the Closing Date, no ERISA Event has occurred in connection with which obligations and Liabilities (contingent or otherwise) to the Credit Parties in excess of $100,000 in the aggregate remain outstanding.
U.S. Plans. (A) For purposes of this Agreement, the following terms have the definitions given below:
