definiens: ( as such term is defined in Section 406 of ERISA or Section 4975 ofthe Code ) to which Section 406 of ERISA or Section 4975 of the Code applies and which could subject anyAcquired Corporation or any of their ERISA Affiliates, any Employee Plan or trustee, administrator or other third - party fiduciary and/or party - in - interest thereof to the tax or penalty on prohibited transactions imposed bySection 4975 of the Code, ( ii ) no suit, administrative proceeding, action or other litigation is pending, or to theknowledge of the Company is threatened, against or with respect to any such Employee Plan, any fiduciaries thereofwith respect to their duties to the Employee Plans or the assets of any of the trusts under any of the 35Employee Plans, including any audit or inquiry by the IRS, the DOL, the United States Pension Benefit GuarantyCorporation, or the United States Department of Health and Human Services, except as would not individually or inthe aggregate be reasonably likely to result in a Material Adverse Effect, ( iii ) with respect to each Employee Plan, allTax, annual reporting and other governmental filings required by ERISA and the Code have been timely filed withthe appropriate Governmental Body and all notices and disclosures required under applicable Legal Requirementshave been timely provided to participants, except as would not result in any material liability to any AcquiredCorporation, ( iv ) all contributions and payments to such Employee Plan are deductible under Code Sections 162 or404 and ( v ) no assets of any Employee Plan are subject to a material amount of Tax as unrelated business taxableincome under Section 511 of the Code