IN PART, BY
REFERENCE TO THE TAX BASIS OF THE ACQUIRED ASSETS (OR ANY OTHER PROPERTY) IN THE
HANDS OF THE TRANSFEROR OR (B) ACQUIRED THE STOCK OF ANY CORPORATION THAT IS OR
WAS A QUALIFIED SUBCHAPTER S SUBSIDIARY.
(ix)
The Subsidiary is not in breach or default, and there is no basis
for any claim of breach or default, under the Swiss Tax Agreement and there
exists no event or condition which (whether with or without notice, lapse of
time, or both) could constitute a breach or default thereunder, give rise to a
right to assess or impose additional Taxes on the Subsidiary, retroactively or
otherwise, or give rise to any Encumbrance on its property or assets, except as
specified on Schedule 3.8(c)(ix).
(X)
THERE IS NO ACTION, SUIT, TAXING AUTHORITY PROCEEDING, AUDIT, OR
INVESTIGATION NOW IN PROGRESS, PENDING OR, TO THE SELLER'S KNOWLEDGE, THREATENED
AGAINST OR WITH RESPECT TO THE COMPANY, SUBSIDIARY OR AFFILIATE WITH RESPECT TO
ANY TAX.
(XI)
THE COMPANY, SUBSIDIARY OR AFFILIATE DO NOT REASONABLY EXPECT ANY
TAXING AUTHORITY TO CLAIM OR ASSESS ANY ADDITIONAL TAX AGAINST THEM FOR ANY
PERIOD ENDING ON OR PRIOR TO THE CLOSING DATE, AND TO THE SELLER'S KNOWLEDGE,
THERE IS NO BASIS FOR ANY SUCH CLAIM OR ASSESSMENT.
(XII)
NEITHER THE COMPANY, SUBSIDIARY OR AFFILIATE HAS DISTRIBUTED
STOCK OF ANOTHER PERSON, OR HAD ITS STOCK DISTRIBUTED BY ANOTHER PERSON, IN A
TRANSACTION THAT PURPORTED OR WAS INTENDED TO BE GOVERNED IN WHOLE OR IN PART BY
IRC SECTION 355 OR SECTION 361.
(XIII)
NEITHER THE COMPANY, SUBSIDIARY OR AFFILIATE HAS BEEN A MEMBER OF
AN AFFILIATED OR SIMILAR GROUP FILING A CONSOLIDATED, COMBINED, UNITARY OR
SIMILAR INCOME TAX RETURN OTHER THAN THE CONSOLIDATED GROUP OF WHICH THE COMPANY
IS THE COMMON PARENT OR HAS ANY LIABILITY FOR THE TAXES OF ANY PERSON (OTHER
THAN THE COMPANY AND SUBSIDIARY) UNDER TREAS. REG. §1.1502-6 (OR ANY SIMILAR
PROVISION OF STATE, LOCAL OR FOREIGN LAW), AS A TRANSFEREE OR SUCCESSOR, BY
AGREEMENT, OR OTHERWISE.
3.9.
EMPLOYEE BENEFITS.
(A)
SCHEDULE 3.9 (A) IS A COMPLETE LIST OF EACH "BENEFIT PLAN" (WITHIN
THE MEANING OF SECTION 3(3) OF ERISA) AND EACH OTHER EMPLOYEE BENEFIT PLAN,
AGREEMENT, POLICY, TRUST FUND OR ARRANGEMENT (WHETHER WRITTEN OR UNWRITTEN,
INSURED OR SELF-INSURED) MAINTAINED OR CONTRIBUTED TO (OR WITH RESPECT TO WHICH
ANY OBLIGATION TO CONTRIBUTE HAS BEEN UNDERTAKEN) BY THE COMPANY OR SUBSIDIARY
ON BEHALF OF ANY EMPLOYEE OR OTHER SERVICE PROVIDER OF THE COMPANY OR SUBSIDIARY
(WHETHER CURRENT, FORMER, OR RETIRED) OR THEIR BENEFICIARIES OR WITH RESPECT TO
WHICH THE COMPANY OR SUBSIDIARY HAS OR MAY HAVE ANY OBLIGATION OR LIABILITY
(CONTINGENT OR OTHERWISE) (EACH "BENEFIT PLAN"). WITH RESPECT TO EACH BENEFIT
PLAN, SELLER HAS DELIVERED TO PURCHASER (1) CURRENT, ACCURATE AND COMPLETE
COPIES OF EACH SUCH BENEFIT PLAN AND ALL CONTRACTS RELATING THERETO (INCLUDING
WITHOUT LIMITATION ALL TRUST AGREEMENTS, INSURANCE OR ANNUITY CONTRACTS,
INVESTMENT MANAGEMENT AGREEMENTS, RECORD KEEPING AGREEMENTS AND OTHER MATERIAL
DOCUMENTS OR INSTRUMENTS RELATING THERETO), AND IN THE CASE OF ANY BENEFIT PLAN
THAT