Common use of Plans; ERISA Clause in Contracts

Plans; ERISA. (a) Except as disclosed on Schedule 2.18, (i) neither the Company nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement, and (vii) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent 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 of the Company or either Company Subsidiary 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, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiary, the Company has delivered to Parent 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 such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and (VI) for each funded 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 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.

Plans; ERISA. (a) Except as disclosed on Schedule 2.18, (i) neither the Company nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement, and (vii) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, 17 there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent continues after the Closing, or (B) which Parent 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 of the Company or either Company Subsidiary 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, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiary, the Company has delivered to Parent 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 such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and (VI) for each funded 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 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.

Plans; ERISA. (a) Except as disclosed on Schedule 2.18, (i) neither none of the Company nor either Company Subsidiary Companies currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," ", as defined in Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Internal Revenue Code, (vi) neither none of the Company nor either Company Subsidiary Companies is a party to any collective bargaining agreement, and (vii) neither none of the Company nor either Company Subsidiary Companies has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent Buyer will be required to make any contributions or with respect to which Parent Buyer shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the any Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to such Plans that Parent Buyer continues after the Closing, or (B) which Parent Buyer 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 of the Company or either Company Subsidiary Companies 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, either any Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company SubsidiaryCompanies, the each Company has delivered to Parent Buyer 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 such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and (VI) for each funded 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 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.

Plans; ERISA. (a) Except as disclosed on Schedule 2.18, (i) neither All of the Plans of the Company nor either Company Subsidiary currently maintains or sponsors, or makes or is required to make contributions to, any Plans, (ii) none of such Company Plans is a "multi-employer plan," as defined in and its Subsidiaries are listed on Section 3(37) of ERISA, (iii) none of such Company Plans is a "defined benefit pension plan" within the meaning of Section 3(35) of ERISA, (iv) none of such Company Plans provides post-retirement medical or health benefits (other than COBRA continuation coverage as required by federal law or similar state insurance law), (v) none of such Company Plans is a "welfare benefit fund," as defined in Section 419(e2.14(a) of the Internal Revenue Code, or an organization described in Sections 501(c)(9) or 501(c)(20) Company Disclosure Schedule Copies of the Internal Revenue Code, (vi) neither the Company nor either Company Subsidiary is a party to any collective bargaining agreement, and (vii) neither the Company nor either Company Subsidiary has announced or otherwise made any commitment to create or amend any Plan, other than amendments to any qualified retirement plan as needed to retain such plan's qualified status. Notwithstanding any statement or indication in this Agreement to the contrary, there are no Plans (A) as to which Parent will be required to make any contributions or with respect to which Parent shall have any obligation or liability whatsoever, whether on behalf of any of the current employees of the Company or either Company Subsidiary or on behalf of any other person, after the Closing, except contributions or liabilities disclosed on the Companies' Financials with respect to all such Plans that Parent continues after have been provided to Parent. To the Closing, or (B) which Parent 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 of the Company or either Company Subsidiary 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, either Company Subsidiary or any of their respective ERISA Affiliates. With respect to each Plan currently maintained by the Company or either Company Subsidiaryextent applicable, the Company has delivered to Parent true Plans comply with the requirements of ERISA 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 such Plans, (III) all annual reports for each of such Plans (including all related schedules) filed with respect to the last three plan years for which a filing is due, (IV) the most recently filed PBGC Form 1 (if applicable), (V) the most recent IRS determination letter, opinion, notification or advisory letter (as the case may be) for each such Plan which is intended to constitute a qualified plan under Section 401 of the Internal Revenue Code, and any Plan intended to be qualified under Section 401(a) of the Internal Revenue Code and each trust intended to qualify under Section 501(a) of the Internal Revenue Code (VIi) has either obtained a favorable determination letter as to its qualified status from the IRS or still has a remaining period of time under applicable treasury regulations or IRS pronouncements in which to apply for each funded Plan, financial statements consisting of (a) the consolidated statement of assets such determination letter and liabilities of such Plan as of its most recent valuation dateto make any amendments necessary to obtain a favorable determination, and (bii) incorporates or has been amended to incorporate all provisions required to comply with the statement Tax Reform Act of changes 1986 and subsequent legislation (except to the extent such amendments may be made without penalty within applicable amendatory periods). The Company has furnished or made available to Parent copies of the most recent IRS determination letters and Forms 5500 for the three most current Plan years with respect to any such Plan. No Plan is covered by Title IV of ERISA or Section 412 of the Internal Revenue Code. Neither the Company, any of its Subsidiaries nor any of their Affiliates has been a contributing employer to any multiemployer plan as defined under Section 4001 of ERISA. Neither the Company, any of its Subsidiaries nor any officer or director of the Company or any of its Subsidiaries has incurred any Liability or penalty under Section 4971 through 4980E of the Code or Title 1 of ERISA. None of the Plans promises or provides retiree medical or other retiree welfare benefits to any person except as required by applicable Law, including but not limited to, the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended. Each Plan has been maintained and administered in fund balance all material respects in compliance with its terms and in financial position with the requirements prescribed by any and all Laws, including but not limited to ERISA and the Internal Revenue Code, which are applicable to such Plans. No Action or the statement of changes in net assets available Proceeding (excluding claims for benefits incurred in the ordinary course of Plan activities) has been brought, or to the best knowledge of the Company, is threatened, against or with respect to any such Plan. All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Plans have been made or accrued. Section 2.14(a) of the Company Disclosure Schedule includes a listing of the accrued vacation Liability of the Company as of September 30, 2001. All material reports, returns, forms and notices required to be filed with any Government or Regulatory Authority or furnished to participants or beneficiaries with respect to the Plans, by the Internal Revenue Code, ERISA or any other applicable Law, have been so filed and furnished. Neither the Company nor any of its Subsidiaries is under such Plan for a legal or contractual obligation to continue any of the most recently-ended plan year, which such financial statements shall fairly present Plans and may terminate any or all of the financial condition and the results of operations of such Plan Plans at any time in accordance with GAAP, consistently applied, as the terms of such datesthe Plans and applicable Law without incurring any Liability.