affiliates
immediately after Closing, such affiliates specifically to include the Companies
after their purchase by Purchaser.
"Multi-Employer Plan" means each Employee Plan that is a multi-employer plan, as
defined in section 3(37) of ERISA.
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"PBGC" means the Pension Benefit Guaranty Company.
"Profit Sharing Plan" means the Companies' Profit-Sharing Plan and Trust.
"Title IV Plan" means an Employee Plan, other than any Multi-Employer Plan,
subject to Title IV of ERISA.
8.2
EMPLOYEE MATTERS.
The Sellers hereby represent and warrant to Purchaser as of the date hereof and
the Closing Date:
(A)
SCHEDULE 8.2(A) HERETO PROVIDES A LIST OF EACH
EMPLOYEE PLAN AND EACH BENEFIT ARRANGEMENT AND TRUE, CORRECT AND COMPLETE COPIES
OF EACH OF THE EMPLOYEE PLANS AND BENEFIT ARRANGEMENTS, RELATED TRUSTS, AND ALL
AMENDMENTS THERETO HAVE BEEN FURNISHED TO PURCHASER.
THERE HAS ALSO BEEN
FURNISHED TO PURCHASER, WITH RESPECT TO EACH EMPLOYEE PLAN REQUIRED TO FILE SUCH
REPORT AND DESCRIPTION, THE MOST RECENT REPORT ON FORM 5500 AND THE SUMMARY PLAN
DESCRIPTION.
NO EMPLOYEE PLAN IS A TITLE IV PLAN OR A MULTI-EMPLOYER PLAN.
NO
EMPLOYEE PLAN IS FUNDED BY A TRUST THAT IS INTENDED TO BE EXEMPT FROM FEDERAL
INCOME TAXATION PURSUANT TO SECTION 501(C)(9) OF THE CODE.
THE PROFIT SHARING
PLAN IS THE ONLY EMPLOYEE PLAN THAT IS INTENDED TO BE QUALIFIED UNDER SECTION
401(A) OF THE CODE.
(B)
EXCEPT AS OTHERWISE REPORTED IN SECTION 8.3(A)
BELOW:
1.
THE COMPANIES AND THE ERISA AFFILIATES HAVE PERFORMED ALL
OBLIGATIONS, WHETHER ARISING BY OPERATION OF LAW OR BY CONTRACT, REQUIRED TO BE
PERFORMED BY THEM IN CONNECTION WITH THE EMPLOYEE PLANS AND THE BENEFIT
ARRANGEMENTS, AND, TO THE BEST KNOWLEDGE OF THE COMPANIES THERE HAVE BEEN NO
DEFAULTS OR VIOLATIONS BY ANY OTHER PARTY TO THE EMPLOYEE PLANS OR BENEFIT
ARRANGEMENTS;
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2.
EACH EMPLOYEE PLAN AND EACH BENEFIT ARRANGEMENT HAS BEEN
ADMINISTERED AND OPERATED IN COMPLIANCE WITH ITS GOVERNING DOCUMENTS AND
APPLICABLE LAW (INCLUDING, WHERE APPLICABLE, ERISA AND THE CODE);
3.
TO THE KNOWLEDGE OF THE COMPANIES THE PROFIT SHARING PLAN
SATISFIES THE REQUIREMENTS OF SECTION 401 OF THE CODE;
4.
THERE ARE NO ACTIONS, SUITS OR CLAIMS PENDING (OTHER THAN ROUTINE
CLAIMS FOR BENEFITS) OR THREATENED AGAINST, OR WITH RESPECT TO, ANY OF THE
EMPLOYEE PLANS OR BENEFIT ARRANGEMENTS OR THEIR ASSETS, AND THERE IS NO MATTER
PENDING WITH RESPECT TO ANY OF THE EMPLOYEE PLANS OR BENEFIT ARRANGEMENTS BEFORE
ANY GOVERNMENTAL AGENCY OR AUTHORITY;
5.
ALL CONTRIBUTIONS REQUIRED TO BE MADE TO THE EMPLOYEE PLANS AND
BENEFIT ARRANGEMENTS PURSUANT TO THEIR TERMS AND PROVISIONS HAVE BEEN MADE
TIMELY;
6.
THERE HAS BEEN NO TERMINATION OR PARTIAL TERMINATION OF THE
PROFIT SHARING PLAN WITHIN THE MEANING OF SECTION 411(D)(3) OF THE CODE;
7.
NO ACT, OMISSION OR TRANSACTION HAS OCCURRED WHICH WOULD RESULT
IN IMPOSITION ON THE COMPANIES OR ANY ERISA AFFILIATE OF (A) BREACH OF FIDUCIARY
DUTY LIABILITY DAMAGES UNDER SECTION 409 OF ERISA; (B) A CIVIL PENALTY ASSESSED
PURSUANT TO SUBSECTIONS (C), (I) OR (1) OF SECTION 502 OF ERISA; OR (C) A