355 of the Code (i) in the two (2) years prior to the date of this
Agreement, or (ii) in a distribution that could otherwise constitute part of a
"plan" or "series of related transactions" (within the meaning of
Section 355(e) of the Code) in conjunction with the transactions contemplated
hereunder.
The Company will not be required to include any item of income in,
or exclude any item of deduction from, taxable income for any period (or portion
thereof) ending after the Closing Date as a result of any change in method of
accounting for a taxable period ending on or prior to the Closing Date.
SECTION 6.11.
Employee Benefits Plans; ERISA.
(A)
EACH COMPANY PLAN IS LISTED IN
SCHEDULE 6.11 OF THE COMPANY DISCLOSURE LETTER.
NEITHER THE COMPANY NOR ANY
COMPANY SUBSIDIARY HAS ANY OBLIGATION TO CREATE ANY ADDITIONAL COMPANY PLAN OR
TO AMEND ANY COMPANY PLAN SO AS TO INCREASE BENEFITS THEREUNDER, EXCEPT AS
REQUIRED UNDER THE TERMS OF THE COMPANY PLANS, UNDER EXISTING COLLECTIVE
BARGAINING AGREEMENTS OR TO COMPLY WITH APPLICABLE LAW.
THERE ARE NO
RESTRICTIONS ON THE RIGHTS OF COMPANY OR ANY COMPANY SUBSIDIARY TO AMEND OR
TERMINATE ANY COMPANY PLAN WITHOUT INCURRING ANY LIABILITY THEREUNDER (OTHER
THAN ORDINARY ADMINISTRATIVE EXPENSES).
(B)
THE COMPANY HAS FURNISHED TO PARENT A
COMPLETE AND ACCURATE COPY OF EACH COMPANY PLAN AND A COMPLETE AND ACCURATE COPY
OF EACH MATERIAL DOCUMENT PREPARED IN CONNECTION WITH EACH SUCH COMPANY PLAN,
INCLUDING, WITHOUT LIMITATION AND WHERE APPLICABLE, A COPY OF (I) EACH TRUST OR
OTHER FUNDING ARRANGEMENT, (II) EACH SUMMARY PLAN DESCRIPTION AND SUMMARY OF
MATERIAL MODIFICATIONS, (III) THE THREE (3) MOST RECENTLY FILED INTERNAL REVENUE
SERVICE FORM 5500S AND RELATED SCHEDULES, (IV) ALL INTERNAL REVENUE SERVICE
DETERMINATION LETTERS FOR EACH SUCH COMPANY PLAN, (V) THE THREE (3) MOST
RECENTLY PREPARED ACTUARIAL REPORTS AND FINANCIAL STATEMENTS IN CONNECTION WITH
EACH SUCH COMPANY PLAN, AND (VI) ANY OTHER RELATED DOCUMENTS AS PARENT HAS
REASONABLY REQUESTED.
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(C)
NEITHER THE COMPANY NOR ANY CURRENT OR
FORMER MEMBER OF THE COMPANY'S "CONTROLLED GROUP," WITHIN THE MEANING OF
SECTION 4001(A)(14) OF ERISA, MAINTAINS OR CONTRIBUTES TO OR HAD AN OBLIGATION
TO CONTRIBUTE TO, OR WITHIN THE FIVE (5) YEARS PRECEDING THE EFFECTIVE TIME HAS
MAINTAINED OR CONTRIBUTED TO OR HAD AN OBLIGATION TO CONTRIBUTE TO, AN EMPLOYEE
PENSION BENEFIT PLAN SUBJECT TO TITLE IV OF ERISA.
IN CONNECTION WITH THE
CONSUMMATION OF THE MERGER, NO PAYMENTS OF MONEY OR OTHER PROPERTY, ACCELERATION
OF BENEFITS, OR PROVISIONS OF OTHER RIGHTS HAVE OR WILL BE MADE HEREUNDER, UNDER
ANY AGREEMENT CONTEMPLATED HEREIN, OR UNDER THE COMPANY PLANS OR ANY OTHER PLAN,
ARRANGEMENT OR AGREEMENT TO WHICH THE COMPANY OR ANY COMPANY SUBSIDIARY IS A
PARTY THAT WOULD BE REASONABLY LIKELY TO RESULT IN IMPOSITION OF THE SANCTIONS
IMPOSED UNDER SECTIONS 280G AND 4999 OF THE CODE, DETERMINED WITHOUT REGARD TO
WHETHER SUCH PAYMENT IS REASONABLE COMPENSATION FOR SERVICES PERFORMED OR TO BE
PERFORMED IN THE FUTURE, AND WHETHER OR NOT SOME OTHER SUBSEQUENT ACTION OR
EVENT WOULD