definiens: ( as such term is defined in Section 406 of ERISA orSection 4975 of the Code ) to which Section 406 of ERISA or Section 4975 of the Code applies and which couldsubject any Acquired Corporation or any of their ERISA Affiliates, any Employee Plan or trustee, administrator orother third - party fiduciary and/or party - in - interest thereof to a material tax or penalty on prohibited transactionsimposed by Section 4975 of the Code, ( ii ) no suit, administrative proceeding, action or other litigation has beenbrought, or to the knowledge of the Company is threatened, against or with respect to any such Employee Plan, anyfiduciaries thereof with respect to their duties to the Employee Plans or the assets of any of the trusts under any ofthe Employee 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 with theappropriate Governmental Body and all notices and disclosures required under applicable Legal Requirements havebeen timely provided to participants, except as would not result in any material liability to any Acquired Corporation,(iv ) all contributions and payments to such Employee Plan are deductible under Code Sections 162 or 404, and ( v ) noassets of any Employee Plan are subject to a material amount of Tax as unrelated business taxable income underSection 511 of the Code