definiens: within the meaning ofSection 4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under Section 408 of ERISA, hasoccurred with respect to any Company Employee Plan . Each Company Employee Plan ( other than any Company EmployeePlan to be terminated prior to the Effective Time in accordance with this Agreement ) can be amended, terminated or otherwisediscontinued after the Closing in accordance with its terms, without liability to Parent, any of the Alamo Corporations or anyCompany Affiliate ( other than any liability for ordinary administration expenses ) . There are no audits or inquiries pending or, to the knowledge of the Company, threatened by the IRS, the DOL or any other Governmental Body with respect to anyCompany Employee Plan or any fiduciary thereof . None of the Alamo Corporations, and no Company Affiliate, has everincurred : ( i ) any material penalty or tax with respect to any Company Employee Plan under Section 502(i ) of ERISA orSections 4975 through 4980 of the Code ; or ( ii ) any material penalty or Tax under applicable Legal Requirements . Each ofthe Alamo Corporations and Company Affiliates has made all contributions and other payments required by and due under theterms of each Company Employee Plan and each Company Employee Agreement . Neither the terms nor the performance ofany Company Employee Agreement or Company Employee Plan would reasonably be expected to result in gross incomeinclusion after the Effective Time pursuant to Section 409A(a)(1)(A ) of the Code