AS "PLANS").
NONE OF THE SUBJECT COMPANIES IS SUBJECT TO ANY LEGAL,
CONTRACTUAL, EQUITABLE OR OTHER OBLIGATION TO ENTER INTO ANY NEW PLAN OR TO
MODIFY OR CHANGE ANY EXISTING PLAN.
(B)
WITH RESPECT TO EACH PLAN, THE SUBJECT COMPANIES HAVE PROVIDED TO
BUYER A TRUE AND CORRECT COPY OF EACH OF THE FOLLOWING, AS APPLICABLE:
(I)
THE CURRENT PLAN DOCUMENT (INCLUDING ALL AMENDMENTS ADOPTED SINCE
THE MOST RECENT RESTATEMENT) AND ITS MOST RECENTLY PREPARED SUMMARY PLAN
DESCRIPTION AND ALL SUMMARIES OF MATERIAL MODIFICATIONS PREPARED SINCE THE MOST
RECENT SUMMARY PLAN DESCRIPTION, AND ALL MATERIAL EMPLOYEE COMMUNICATIONS
RELATING TO SUCH PLAN;
(II)
ANNUAL REPORTS OR INFORMATION RETURNS, INCLUDING FINANCIAL
STATEMENTS, FOR THE LAST THREE YEARS;
(III)
ALL CONTRACTS RELATING TO ANY PLAN WITH RESPECT TO WHICH ANY
SUBJECT COMPANY MAY HAVE ANY LIABILITY, INCLUDING, WITHOUT LIMITATION, EACH
RELATED TRUST AGREEMENT, INSURANCE CONTRACT, SERVICE PROVIDER CONTRACT,
SUBSCRIPTION OR PARTICIPATION AGREEMENT, OR INVESTMENT MANAGEMENT AGREEMENT
(INCLUDING ALL AMENDMENTS TO EACH SUCH DOCUMENT); AND
(IV)
THE MOST RECENT IRS DETERMINATION LETTER OR OTHER OPINION LETTER
WITH RESPECT TO THE QUALIFIED STATUS OF SUCH PLAN UNDER CODE SECTION 401(A) OR
THE EXEMPT STATUS OF A RELATED TRUST UNDER CODE SECTION 501(A) OR 501(C)(9).
(C)
EACH PLAN INTENDED TO BE QUALIFIED UNDER SECTION 401(A) OF THE
CODE IS AND HAS BEEN SO QUALIFIED IN FORM.
EACH PLAN IS AND HAS BEEN MAINTAINED
AND OPERATED IN MATERIAL COMPLIANCE WITH ITS TERMS AND THE PROVISIONS OF ALL
APPLICABLE LAWS, RULES AND REGULATIONS, INCLUDING, WITHOUT LIMITATION, ERISA AND
THE CODE.
OTHER THAN CLAIMS FOR BENEFITS IN THE ORDINARY COURSE, THERE IS NO
CLAIM PENDING, OR, TO THE KNOWLEDGE OF SELLERS, THREATENED, INVOLVING ANY PLAN
BY ANY PERSON AGAINST SUCH PLAN, FIDUCIARIES OR ADMINISTRATORS OF SUCH PLAN, ANY
OF THE SUBJECT COMPANIES OR THE SELLERS.
NO PLAN IS SUBJECT TO ONGOING AUDIT,
INVESTIGATION OR OTHER ADMINISTRATIVE PROCEEDING OF THE INTERNAL REVENUE
SERVICE, THE DEPARTMENT OF LABOR OR ANY OTHER GOVERNMENTAL AGENCY, AND NO PLAN
IS THE SUBJECT OF ANY PENDING APPLICATION FOR ADMINISTRATIVE RELIEF UNDER ANY
VOLUNTARY COMPLIANCE PROGRAM OF THE INTERNAL REVENUE SERVICE, THE DEPARTMENT OF
LABOR OR ANY OTHER GOVERNMENTAL ENTITY.
THERE HAS BEEN NO TRANSACTION THAT IS
PROHIBITED UNDER SECTION 4975 OF THE CODE OR SECTION 406 OF ERISA AND NOT EXEMPT
UNDER SECTION 4975 OF THE CODE OR SECTION 408 OF ERISA, RESPECTIVELY, IN
RELATION TO ANY PLANS.
EACH
27
PLAN WHICH MAY BE SUBJECT TO SECTION 409A OF THE CODE IS EITHER EXEMPT FROM
SECTION 409A OF THE CODE UNDER CURRENT IRS GUIDANCE OR HAS BEEN OPERATED IN GOOD
FAITH COMPLIANCE WITH SECTION 409A OF THE CODE AND THE IRS GUIDANCE ISSUED
THEREUNDER.
TO THE KNOWLEDGE OF SELLERS, NO PLAN IS SUBJECT TO SECTION 409A OF
THE CODE.
(D)
NEITHER ANY OF THE SUBJECT COMPANIES NOR ANY ERISA AFFILIATE HAS
EVER SPONSORED OR MAINTAINED AN "EMPLOYEE PENSION BENEFIT PLAN" SUBJECT TO
TITLE IV OF ERISA OR THE MINIMUM FUNDING REQUIREMENTS OF SECTION 412 OF THE
CODE.
NEITHER ANY OF THE SUBJECT COMPANIES NOR