RESOLUTION SYSTEM OR THE DEPARTMENT OF LABOR DELINQUENT FILER
PROGRAM) MADE BY SELLER WITH RESPECT TO ANY SELLER PLAN, HAVE BEEN SUPPLIED OR
MADE AVAILABLE TO BUYER.
EXCEPT AS SET FORTH IN SCHEDULE 3.9(A), NEITHER SELLER
NOR ANY OF ITS SUBSIDIARIES HAS MADE ANY PLAN OR COMMITMENT TO CREATE ANY
ADDITIONAL SELLER PLAN OR MODIFY OR CHANGE ANY EXISTING SELLER PLAN THAT WOULD
INCREASE THE COMPENSATION OR BENEFITS PROVIDED TO ANY CONSULTANT OF THE
PURCHASED BUSINESS OR PURCHASED BUSINESS EMPLOYEE OR THE SPOUSES, BENEFICIARIES
OR OTHER DEPENDENTS THEREOF.
(B)
PLAN COMPLIANCE.
EXCEPT AS SET FORTH IN SCHEDULE 3.9(B), WITH
RESPECT TO EACH SELLER PLAN: (I) SUCH SELLER PLAN HAS BEEN OPERATED AND
ADMINISTERED IN COMPLIANCE WITH ITS TERMS AND ALL APPLICABLE LAWS AND
REGULATIONS (INCLUDING BUT NOT LIMITED TO ERISA, THE CODE AND ANY APPLICABLE
FOREIGN LAWS); (II) THERE ARE NO PENDING OR, TO THE KNOWLEDGE OF SELLER,
THREATENED
18
CLAIMS AGAINST, BY OR ON BEHALF OF SUCH SELLER PLAN OR THE ASSETS, FIDUCIARIES
OR ADMINISTRATORS THEREOF (OTHER THAN ROUTINE CLAIMS FOR BENEFITS); (III) NO
ENCUMBRANCE HAS BEEN IMPOSED ON ANY SELLER PLAN UNDER THE CODE, ERISA OR ANY
COMPARABLE FOREIGN LAW; AND (IV) ALL CONTRIBUTIONS (INCLUDING ALL EMPLOYER
CONTRIBUTIONS AND EMPLOYEE SALARY REDUCTION CONTRIBUTIONS), PREMIUMS AND
EXPENSES TO OR IN RESPECT OF SUCH SELLER PLAN HAVE BEEN TIMELY PAID IN FULL OR,
TO THE EXTENT NOT YET DUE, HAVE BEEN ADEQUATELY ACCRUED ON SELLER'S CONSOLIDATED
FINANCIAL STATEMENTS.
(C)
CERTAIN PENSION PLANS. NO SELLER PLAN IS, AND NEITHER SELLER, ITS
SUBSIDIARIES NOR ANY ERISA AFFILIATE THEREOF CONTRIBUTES TO, HAS CONTRIBUTED TO
OR HAS ANY LIABILITY OR OBLIGATION, WHETHER ACTUAL OR CONTINGENT, WITH RESPECT
TO ANY EMPLOYEE BENEFIT PLAN THAT IS (I) A "MULTIEMPLOYER PLAN" (WITHIN THE
MEANING OF SECTION 3(37) OF ERISA), (II) A "MULTIPLE EMPLOYER PLAN" (WITHIN THE
MEANING OF SECTION 413(C) OF THE CODE), (III) A SINGLE EMPLOYER PLAN OR OTHER
PENSION PLAN SUBJECT TO TITLE IV OR SECTION 302 OF ERISA OR SECTION 412 OF THE
CODE, OR (IV) ANY FOREIGN PLAN THAT PROVIDES DEFINED BENEFITS.
(D)
POST-TERMINATION BENEFITS.
EXCEPT AS SET FORTH IN SCHEDULE
3.9(D), NEITHER SELLER NOR ANY OF ITS SUBSIDIARIES HAS ANY OBLIGATION TO PROVIDE
HEALTH, ACCIDENT, DISABILITY, LIFE INSURANCE OR DEATH BENEFITS WITH RESPECT TO
ANY CONSULTANT OF THE PURCHASED BUSINESS OR PURCHASED BUSINESS EMPLOYEE, BEYOND
THE TERMINATION OF EMPLOYMENT OR SERVICE OF SUCH EMPLOYEES, CONSULTANTS,
DIRECTORS OR RETIREES, WHETHER UNDER A SELLER PLAN OR OTHERWISE, OTHER THAN AS
REQUIRED UNDER SECTION 4980B OF THE CODE OR OTHER APPLICABLE LEGAL REQUIREMENT.
THERE HAS BEEN NO WRITTEN OR, TO THE KNOWLEDGE OF SELLER, OTHER COMMUNICATION TO
ANY CONSULTANT OF THE PURCHASED BUSINESS OR PURCHASED BUSINESS EMPLOYEE THAT
WOULD REASONABLY BE EXPECTED TO PROMISE OR GUARANTEE ANY SUCH HEALTH, ACCIDENT,
DISABILITY, LIFE INSURANCE OR DEATH BENEFITS.
(E)
ACCELERATED PAYMENTS.
EXCEPT AS SET FORTH IN SCHEDULE 3.9(E),
NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT, NOR THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY, EITHER ALONE OR IN COMBINATION WITH
ANOTHER EVENT (WHETHER CONTINGENT OR OTHERWISE)