Benefit Plans; ERISA Compliance. (a) Schedule 4.12(a) sets forth a complete list of all "employee benefit plans" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), bonus, pension, profit sharing, deferred compensation, incentive compensation, excess benefit, stock, stock option, severance, termination pay, change in control or other material employee benefit plans, programs or arrangements, including, but not limited to, those providing medical, dental, vision, disability, life insurance and vacation benefits (other than those required to be maintained by law), qualified or unqualified, funded or unfunded, foreign or domestic currently maintained, or contributed to, or required to be maintained or contributed to, by the Company or any other person or entity that, together with the Company, is treated as a single employer under Section 414 of the Internal Revenue Code of 1986, as amended (the "Code") (each a "Commonly Controlled Entity") for the benefit of any current or former employees, officers, directors or independent contractors of the Company or any Subsidiary and with respect to which the Company or any Subsidiary has any liability (collectively, the "Benefit Plans"). Except with respect to any "multiemployer plan" (as defined in Section 3(37) of ERISA), the Company has delivered or made available to Parent true, complete and correct copies of each Benefit Plan and related trust agreement and annuity contract and (to the extent applicable) a copy of each Benefit Plan's current summary plan description. In addition, to the extent applicable, the Company has provided or made available to Parent a copy of the most recent IRS determination letter issued, and copies of the two most recently filed IRS Forms 5500 together with all schedules, actuarial reports and accountants' statements for each Benefit Plan, including Form 5500, Schedule B for each Benefit Plan that is a "defined benefit plan" (as defined in Section 3(35) of ERISA), other than a multiemployer plan. (b) To the Company's knowledge, each Benefit Plan has been administered in accordance with its terms and in compliance with the applicable provisions of ERISA and the Code where the failure to so administer or comply would have a Material Adverse Effect. (c) All Benefit Plans (other than a multiemployer plan) intended to be qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Benefit Plans are qualified and exempt from Federal income taxes under Section 401(a) and 501(a), respectively, of the Code as amended at least through the statutory changes implemented under the Tax Reform Act of 1986, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification. (d) No Benefit Plan which is a "single-employer plan" (as defined in Section 4001(a)(15) of ERISA) and which is subject to Title IV of ERISA is, as of its most recent valuation date, unfunded by an amount which would have Material Adverse Effect based on actuarial assumptions indicated in the most recent actuarial valuation report. To the knowledge of the Company, neither the Company nor any of the Subsidiaries is aware of any facts or circumstances that would materially and adversely change the funded status of any such Benefit Plans. None of the Benefit Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), and there has been no application for a waiver of the minimum funding standards imposed by Section 412 of the Code with respect to any Benefit Plan. (e) To the Company's knowledge, no person or entity has incurred any liability under Title IV of ERISA or Section 412 of the Code during the time such person or entity was required to be treated as a single employer with the Company under Section 414 of the Code that would have a Material Adverse Effect. (f) During the last five years, to the Company's knowledge, there has been no "reportable event" (as that term is defined in Section 4043 of ERISA) which is reasonably likely to have a Material Adverse Effect with respect to any Benefit Plan that is a single employer plan subject to Title IV of ERISA. (g) With respect to any Benefit Plan that is an employee welfare benefit plan (as defined in Section 3(1) of ERISA), (i) to the best of the Company's knowledge, no such Benefit Plan provides benefits, including without limitation, death or medical benefits, except as set forth on Schedule 4.12(g), beyond termination of employment or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under a Benefit Plan qualified under Section 401(a) of the Code, and (ii) each such Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without liability that would have a Material Adverse Effect to the Company or any of its subsidiaries on or at any time after the consummation of the Offer. (h) Except as set forth on Schedule 4.12(h), no employee of the Company or any Commonly Controlled Entity will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit solely as a result of the transactions contemplated hereby. Without limiting the generality of the foregoing, no amount required to be paid or payable to or with respect to any employee of the Company or any Commonly Controlled Entity in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an "excess parachute payment" within the meaning of Section 280G of the Code. (i) Except as indicated on Schedule 4.12(i), at no time since December 31, 1990, have the Company or any Commonly Controlled Entity, been required to contribute to, or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA to any multiemployer pension plan, within the meaning of Section 3(37) of ERISA. All required contributions, withdrawal liability payments or other payments of any type that the Company or any Commonly Controlled Entity have been obligated to make to any multiemployer plan have been duly and timely made. Any withdrawal liability incurred with respect to any multiemployer plan has been fully paid as of the date hereof. Neither the Company nor any Commonly Controlled Entity has undertaken any course of action that could reasonably be expected to lead to a complete or partial withdrawal from any multiemployer plan that would reasonably be expected to result in a withdrawal liability that would have a Material Adverse Effect. Set forth next to each multiemployer plan listed on Schedule 4.12(i) is the amount of the withdrawal liability that would be incurred by the Company or any Commonly Controlled Entity with respect to such plan, under Section 4201 of ERISA, if the Company or any Commonly Controlled Entity were to completely withdraw from such multiemployer plan on the date hereof. (j) Except as listed on Schedule 4.12(j), neither the Company nor any Commonly Controlled Entity has any secondary liability resulting from a transaction described in ERISA Section 4204 that would, if the Company or Commonly Controlled Entity were to become primarily liable, reasonably be likely to have a Material Adverse Effect. (k) Except as disclosed in the SEC Documents or in Schedule 5.6(d), there exist no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between either of the Company or any Subsidiary and any current or former officer or director of either of the Company or any Subsidiary or for which either of the Company or any Subsidiary is liable.
Appears in 3 contracts
Samples: Merger Agreement (Score Acquisition Corp), Merger Agreement (Talley Manufacturing & Technology Inc), Agreement and Plan of Merger (Talley Industries Inc)
Benefit Plans; ERISA Compliance. (a) Schedule 4.12(a) sets forth 4.18 contains a complete list of all "employee pension benefit plans" (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to in this Section 4.18 as "Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) (sometimes referred to in this Section 4.18 as "Welfare Plans") and all other Benefit Plans, as defined below, currently maintained in whole or in part, contributed to, or required to be contributed to by each of the Company and the Subsidiary for the benefit of any present or former officer, employee or director of each of the Company and the Subsidiary. For purposes of this Agreement, the term "Benefit Plan" shall mean any collective bargaining agreement or any bonus, pension, profit sharing, deferred compensation, incentive compensation, excess benefitstock ownership, stockstock purchase, stock option, phantom stock, retirement, vacation, severance, termination pay, change in control or other material employee benefit plans, programs or arrangements, including, but not limited to, those providing medical, dental, vision, disability, life insurance and vacation benefits death benefit, hospitalization, medical, dependent care, cafeteria, employee assistance, scholarship or other plan, program, arrangement or understanding (other than those required to be whether or not legally binding) maintained by law)in whole or in part, qualified or unqualified, funded or unfunded, foreign or domestic currently maintained, or contributed to, or required to be maintained or contributed to, to by each of the Company or any other person or entity that, together with and the Company, is treated as a single employer under Section 414 of the Internal Revenue Code of 1986, as amended (the "Code") (each a "Commonly Controlled Entity") Subsidiary for the benefit of any current present or former employeesofficer, officers, directors employee or independent contractors director of each of the Company or any the Subsidiary and with respect to which is not a Pension Plan or Welfare Plan. Each of the Company or any and the Subsidiary has any liability (collectively, the "Benefit Plans"). Except with respect delivered to any "multiemployer plan" (as defined in Section 3(37) of ERISA), the Company has delivered or made available to Parent SM&A true, complete and correct copies of (i) each Pension Plan, Welfare Plan and Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof) and related trust agreement and annuity contract and all amendments (none of which amendments will materially increase to costs of the extent applicableamended plan), (ii) a copy of the three annual reports on Form 5500 most recently filed with the Internal Revenue Service (the "IRS") with respect to each Benefit Plan's current summary plan description. In additionPension Plan or Welfare Plan (if any such report was required), to the extent applicable, the Company has provided or made available to Parent a copy of (iii) the most recent IRS determination letter issued, and copies of the two most recently filed IRS Forms 5500 together with all schedules, actuarial reports and accountants' statements request for each Benefit Plan, including Form 5500, Schedule B for each Benefit Pension Plan that is a "defined benefit plan" (as defined in Section 3(35) of ERISA), other than a multiemployer plan.
(b) To the Company's knowledge, each Benefit Plan has been administered in accordance with its terms and in compliance with the applicable provisions of ERISA and the Code where the failure to so administer or comply would have a Material Adverse Effect.
(c) All Benefit Plans (other than a multiemployer plan) intended to be qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that and all rulings or determinations concerning such Benefit Plans are qualified and exempt from Federal income taxes under Section 401(a) and 501(a), respectively, Pension Plan requested of the Code as amended at least through the statutory changes implemented under the Tax Reform Act of 1986, and no such determination letter has been revoked nor, IRS subsequent to the knowledge of the Company, has revocation been threatened, nor has any such Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification.
letter, (div) No Benefit Plan which is a "single-employer plan" (as defined in Section 4001(a)(15) of ERISA) and which is subject to Title IV of ERISA is, as of its most recent valuation date, unfunded by an amount which would have Material Adverse Effect based on actuarial assumptions indicated in the most recent actuarial valuation report. To report for each Pension Plan and Welfare Plan for which an actuarial report is required by ERISA, (v) the knowledge most recent summary plan description for each Pension Plan and Welfare Plan for which such summary plan description is required by ERISA and each summary of material modifications prepared, as required by ERISA, after the Companylast summary plan description, neither the Company nor any of the Subsidiaries is aware of any facts or circumstances that would materially and adversely change the funded status of any such Benefit Plans. None of the Benefit Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), and there has been no application for a waiver of the minimum funding standards imposed by Section 412 of the Code with respect vi) each trust agreement and/or group annuity contract relating to any Benefit Plan.
(e) To the Company's knowledge, no person or entity has incurred any liability under Title IV of ERISA or Section 412 of the Code during the time such person or entity was required to be treated as a single employer with the Company under Section 414 of the Code that would have a Material Adverse Effect.
(f) During the last five years, to the Company's knowledge, there has been no "reportable event" (as that term is defined in Section 4043 of ERISA) which is reasonably likely to have a Material Adverse Effect with respect to any Benefit Plan that is a single employer plan subject to Title IV of ERISA.
(g) With respect to any Benefit Plan that is an employee welfare benefit plan (as defined in Section 3(1) of ERISA), (i) to the best of the Company's knowledge, no such Benefit Plan provides benefits, including without limitation, death or medical benefits, except as set forth on Schedule 4.12(g), beyond termination of employment or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under a Benefit Plan qualified under Section 401(a) of the Code, and (iivii) each such Benefit Plan (including any such Plan covering retirees or all other former employees) may be amended or terminated without liability that would have a Material Adverse Effect to the Company or any of its subsidiaries on or at any time after the consummation of the Offer.
(h) Except as set forth on Schedule 4.12(h), no employee of the Company or any Commonly Controlled Entity will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit solely as a result of the transactions contemplated hereby. Without limiting the generality of the foregoing, no amount required to be paid or payable to or with respect to any employee of the Company or any Commonly Controlled Entity in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an "excess parachute payment" within the meaning of Section 280G of the Code.
(i) Except as indicated on Schedule 4.12(i), at no time since December 31, 1990, have the Company or any Commonly Controlled Entity, been required to contribute to, or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA to any multiemployer pension plan, within the meaning of Section 3(37) of ERISA. All required contributions, withdrawal liability payments or other payments of any type that the Company or any Commonly Controlled Entity have been obligated to make to any multiemployer plan have been duly and timely made. Any withdrawal liability incurred with respect to any multiemployer plan has been fully paid as of the date hereof. Neither the Company nor any Commonly Controlled Entity has undertaken any course of action that could information reasonably be expected to lead to a complete or partial withdrawal from any multiemployer plan that would reasonably be expected to result in a withdrawal liability that would have a Material Adverse Effect. Set forth next to each multiemployer plan listed on Schedule 4.12(i) is the amount of the withdrawal liability that would be incurred requested by the Company or any Commonly Controlled Entity with respect to such plan, under Section 4201 of ERISA, if the Company or any Commonly Controlled Entity were to completely withdraw from such multiemployer plan on the date hereof.
(j) Except as listed on Schedule 4.12(j), neither the Company nor any Commonly Controlled Entity has any secondary liability resulting from a transaction described in ERISA Section 4204 that would, if the Company or Commonly Controlled Entity were to become primarily liable, reasonably be likely to have a Material Adverse Effect.
(k) Except as disclosed in the SEC Documents or in Schedule 5.6(d), there exist no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between either of the Company or any Subsidiary and any current or former officer or director of either of the Company or any Subsidiary or for which either of the Company or any Subsidiary is liable.SM&A.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Merger (Sm&a Corp)
Benefit Plans; ERISA Compliance. (a) Schedule 4.12(a) sets forth 2.17 contains a complete list of all "employee pension ------------- benefit plans" (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to in this Section 2.17 as "Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) (sometimes referred to in this Section 2.17 as "Welfare Plans") and all other Benefit Plans, as defined below, currently maintained in whole or in part, contributed to, or required to be contributed to by the Company for the benefit of any present or former officer, employee or director of the Company. For purposes of this Agreement, the term "Benefit Plan" shall mean any collective bargaining agreement or any bonus, pension, profit sharing, deferred compensation, incentive compensation, excess benefitstock ownership, stockstock purchase, stock option, phantom stock, retirement, vacation, severance, termination pay, change in control or other material employee benefit plans, programs or arrangements, including, but not limited to, those providing medical, dental, vision, disability, life insurance and vacation benefits death benefit, hospitalization, medical, dependent care, cafeteria, employee assistance, scholarship or other plan, program, arrangement or understanding (other than those required to be whether or not legally binding) maintained by law)in whole or in part, qualified or unqualified, funded or unfunded, foreign or domestic currently maintained, or contributed to, or required to be maintained or contributed to, to by the Company for the benefit of any present or former officer, employee or director of the Company which is not a Pension Plan or Welfare Plan. The Company has delivered to Purchaser true, complete and correct copies of (i) each Pension Plan, Welfare Plan and Benefit Plan (or, in the case of any other person or entity thatunwritten Benefit Plans, together descriptions thereof) and all amendments (none of which amendments will materially increase the costs of the plan), (ii) the three annual reports on Form 5500 most recently filed with the CompanyInternal Revenue Service ("IRS") with respect to each Pension Plan or Welfare Plan (if any such report was required), is treated as a single employer (iii) the most recent IRS determination letter request for each Pension Plan intended to be qualified under Section 414 401(a) of the Internal Revenue Code of 1986, as amended (the "Code") (each a "Commonly Controlled Entity") for the benefit of any current and all rulings or former employees, officers, directors or independent contractors determinations concerning such Pension Plan requested of the Company or any Subsidiary and with respect IRS subsequent to which the Company or any Subsidiary has any liability (collectively, the "Benefit Plans"). Except with respect to any "multiemployer plan" (as defined in Section 3(37) of ERISA), the Company has delivered or made available to Parent true, complete and correct copies of each Benefit Plan and related trust agreement and annuity contract and (to the extent applicable) a copy of each Benefit Plan's current summary plan description. In addition, to the extent applicable, the Company has provided or made available to Parent a copy of the most recent IRS determination letter issued, and copies of the two most recently filed IRS Forms 5500 together with all schedules, actuarial reports and accountants' statements for each Benefit Plan, including Form 5500, Schedule B for each Benefit Plan that is a "defined benefit plan" (as defined in Section 3(35) of ERISA), other than a multiemployer plan.
(b) To the Company's knowledge, each Benefit Plan has been administered in accordance with its terms and in compliance with the applicable provisions of ERISA and the Code where the failure to so administer or comply would have a Material Adverse Effect.
(c) All Benefit Plans (other than a multiemployer plan) intended to be qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Benefit Plans are qualified and exempt from Federal income taxes under Section 401(a) and 501(a), respectively, of the Code as amended at least through the statutory changes implemented under the Tax Reform Act of 1986, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification.
letter, (div) No Benefit Plan which is a "single-employer plan" (as defined in Section 4001(a)(15) of ERISA) and which is subject to Title IV of ERISA is, as of its most recent valuation date, unfunded by an amount which would have Material Adverse Effect based on actuarial assumptions indicated in the most recent actuarial valuation report. To report for each Pension Plan and Welfare Plan for which an actuarial report is required by ERISA, (v) the knowledge most recent summary plan description for each Pension Plan and Welfare Plan for which such summary plan description is required by ERISA and each summary of the Companymaterial modifications prepared, neither the Company nor any of the Subsidiaries is aware of any facts or circumstances that would materially and adversely change the funded status of any such Benefit Plans. None of the Benefit Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code)required by ERISA, and there has been no application for a waiver of the minimum funding standards imposed by Section 412 of the Code with respect to any Benefit Plan.
(e) To the Company's knowledge, no person or entity has incurred any liability under Title IV of ERISA or Section 412 of the Code during the time such person or entity was required to be treated as a single employer with the Company under Section 414 of the Code that would have a Material Adverse Effect.
(f) During after the last five yearssummary plan description, to the Company's knowledge, there has been no "reportable event" (as that term is defined in Section 4043 of ERISAvi) which is reasonably likely to have a Material Adverse Effect with respect each trust agreement and/or group annuity contract relating to any Benefit Plan that is a single employer plan subject to Title IV of ERISA.
(g) With respect to any Benefit Plan that is an employee welfare benefit plan (as defined in Section 3(1) of ERISA), (i) to the best of the Company's knowledge, no such Benefit Plan provides benefits, including without limitation, death or medical benefits, except as set forth on Schedule 4.12(g), beyond termination of employment or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under a Benefit Plan qualified under Section 401(a) of the Code, and (iivii) each such Benefit Plan (including any such Plan covering retirees or all other former employees) may be amended or terminated without liability that would have a Material Adverse Effect to the Company or any of its subsidiaries on or at any time after the consummation of the Offerinformation reasonably requested by Purchaser.
(h) Except as set forth on Schedule 4.12(h), no employee of the Company or any Commonly Controlled Entity will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit solely as a result of the transactions contemplated hereby. Without limiting the generality of the foregoing, no amount required to be paid or payable to or with respect to any employee of the Company or any Commonly Controlled Entity in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an "excess parachute payment" within the meaning of Section 280G of the Code.
(i) Except as indicated on Schedule 4.12(i), at no time since December 31, 1990, have the Company or any Commonly Controlled Entity, been required to contribute to, or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA to any multiemployer pension plan, within the meaning of Section 3(37) of ERISA. All required contributions, withdrawal liability payments or other payments of any type that the Company or any Commonly Controlled Entity have been obligated to make to any multiemployer plan have been duly and timely made. Any withdrawal liability incurred with respect to any multiemployer plan has been fully paid as of the date hereof. Neither the Company nor any Commonly Controlled Entity has undertaken any course of action that could reasonably be expected to lead to a complete or partial withdrawal from any multiemployer plan that would reasonably be expected to result in a withdrawal liability that would have a Material Adverse Effect. Set forth next to each multiemployer plan listed on Schedule 4.12(i) is the amount of the withdrawal liability that would be incurred by the Company or any Commonly Controlled Entity with respect to such plan, under Section 4201 of ERISA, if the Company or any Commonly Controlled Entity were to completely withdraw from such multiemployer plan on the date hereof.
(j) Except as listed on Schedule 4.12(j), neither the Company nor any Commonly Controlled Entity has any secondary liability resulting from a transaction described in ERISA Section 4204 that would, if the Company or Commonly Controlled Entity were to become primarily liable, reasonably be likely to have a Material Adverse Effect.
(k) Except as disclosed in the SEC Documents or in Schedule 5.6(d), there exist no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between either of the Company or any Subsidiary and any current or former officer or director of either of the Company or any Subsidiary or for which either of the Company or any Subsidiary is liable.
Appears in 1 contract
Benefit Plans; ERISA Compliance. (a) The Disclosure Schedule 4.12(a) sets forth contains a complete list of all "employee pension benefit plans" (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to in this ----- Section 4.18 as "Pension Plans"), "employee welfare benefit plans" (as ------------ ------------- defined in Section 3(1) of ERISA) (sometimes referred to in this Section ------- 4.18 as "Welfare Plans") and all other Benefit Plans, as defined below, ---- ------------- currently maintained in whole or in part, contributed to, or required to be contributed to by the Company for the benefit of any present or former officer, employee or director of the Company. For purposes of this Agreement, the term "Benefit Plan" shall mean any collective bargaining ------------ agreement or any bonus, pension, profit sharing, deferred compensation, incentive compensation, excess benefitstock ownership, stockstock purchase, stock option, phantom stock, retirement, vacation, severance, termination pay, change in control or other material employee benefit plans, programs or arrangements, including, but not limited to, those providing medical, dental, vision, disability, life insurance and vacation benefits death benefit, hospitalization, medical, dependent care, cafeteria, employee assistance, scholarship or other plan, program, arrangement or understanding (other than those required to be whether or not legally binding) maintained by law)in whole or in part, qualified or unqualified, funded or unfunded, foreign or domestic currently maintained, or contributed to, or required to be maintained or contributed to, to by the Company or any other person or entity that, together with the Company, is treated as a single employer under Section 414 of the Internal Revenue Code of 1986, as amended (the "Code") (each a "Commonly Controlled Entity") for the benefit of any current present or former employeesofficer, officers, directors employee or independent contractors director of the Company which is not a Pension Plan or any Subsidiary and with respect to which the Company or any Subsidiary has any liability (collectively, the "Benefit Plans")Welfare Plan. Except with respect to any "multiemployer plan" (as defined in Section 3(37) of ERISA), the The Company has delivered or made available to Parent SM&A true, complete and correct copies of (i) each Pension Plan, Welfare Plan and Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof) and related trust agreement and annuity contract and all amendments, (ii) the three annual reports on Form 5500 most recently filed with the Internal Revenue Service (the "IRS") with --- respect to the extent applicableeach Pension Plan or Welfare Plan (if any such report was required), (iii) a copy of each Benefit Plan's current summary plan description. In addition, to the extent applicable, the Company has provided or made available to Parent a copy of the most recent IRS determination letter issued, and copies of the two most recently filed IRS Forms 5500 together with all schedules, actuarial reports and accountants' statements request for each Benefit Plan, including Form 5500, Schedule B for each Benefit Pension Plan that is a "defined benefit plan" (as defined in Section 3(35) of ERISA), other than a multiemployer plan.
(b) To the Company's knowledge, each Benefit Plan has been administered in accordance with its terms and in compliance with the applicable provisions of ERISA and the Code where the failure to so administer or comply would have a Material Adverse Effect.
(c) All Benefit Plans (other than a multiemployer plan) intended to be qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that and all rulings or determinations concerning such Benefit Plans are qualified and exempt from Federal income taxes under Section 401(a) and 501(a), respectively, Pension Plan requested of the Code as amended at least through the statutory changes implemented under the Tax Reform Act of 1986, and no such determination letter has been revoked nor, IRS subsequent to the knowledge of the Company, has revocation been threatened, nor has any such Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification.
letter, (div) No Benefit Plan which is a "single-employer plan" (as defined in Section 4001(a)(15) of ERISA) and which is subject to Title IV of ERISA is, as of its most recent valuation date, unfunded by an amount which would have Material Adverse Effect based on actuarial assumptions indicated in the most recent actuarial valuation report. To report for each Pension Plan and Welfare Plan for which an actuarial report is required by ERISA, (v) the knowledge most recent summary plan description for each Pension Plan and Welfare Plan for which such summary plan description is required by ERISA and each summary of material modifications prepared, as required by ERISA, after the Companylast summary plan description, neither the Company nor any of the Subsidiaries is aware of any facts or circumstances that would materially and adversely change the funded status of any such Benefit Plans. None of the Benefit Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), and there has been no application for a waiver of the minimum funding standards imposed by Section 412 of the Code with respect vi) each trust agreement and/or group annuity contract relating to any Benefit Plan.
(e) To the Company's knowledge, no person or entity has incurred any liability under Title IV of ERISA or Section 412 of the Code during the time such person or entity was required to be treated as a single employer with the Company under Section 414 of the Code that would have a Material Adverse Effect.
(f) During the last five years, to the Company's knowledge, there has been no "reportable event" (as that term is defined in Section 4043 of ERISA) which is reasonably likely to have a Material Adverse Effect with respect to any Benefit Plan that is a single employer plan subject to Title IV of ERISA.
(g) With respect to any Benefit Plan that is an employee welfare benefit plan (as defined in Section 3(1) of ERISA), (i) to the best of the Company's knowledge, no such Benefit Plan provides benefits, including without limitation, death or medical benefits, except as set forth on Schedule 4.12(g), beyond termination of employment or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under a Benefit Plan qualified under Section 401(a) of the Code, and (iivii) each such Benefit Plan (including any such Plan covering retirees or all other former employees) may be amended or terminated without liability that would have a Material Adverse Effect to the Company or any of its subsidiaries on or at any time after the consummation of the Offer.
(h) Except as set forth on Schedule 4.12(h), no employee of the Company or any Commonly Controlled Entity will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit solely as a result of the transactions contemplated hereby. Without limiting the generality of the foregoing, no amount required to be paid or payable to or with respect to any employee of the Company or any Commonly Controlled Entity in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an "excess parachute payment" within the meaning of Section 280G of the Code.
(i) Except as indicated on Schedule 4.12(i), at no time since December 31, 1990, have the Company or any Commonly Controlled Entity, been required to contribute to, or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA to any multiemployer pension plan, within the meaning of Section 3(37) of ERISA. All required contributions, withdrawal liability payments or other payments of any type that the Company or any Commonly Controlled Entity have been obligated to make to any multiemployer plan have been duly and timely made. Any withdrawal liability incurred with respect to any multiemployer plan has been fully paid as of the date hereof. Neither the Company nor any Commonly Controlled Entity has undertaken any course of action that could information reasonably be expected to lead to a complete or partial withdrawal from any multiemployer plan that would reasonably be expected to result in a withdrawal liability that would have a Material Adverse Effect. Set forth next to each multiemployer plan listed on Schedule 4.12(i) is the amount of the withdrawal liability that would be incurred requested by the Company or any Commonly Controlled Entity with respect to such plan, under Section 4201 of ERISA, if the Company or any Commonly Controlled Entity were to completely withdraw from such multiemployer plan on the date hereof.
(j) Except as listed on Schedule 4.12(j), neither the Company nor any Commonly Controlled Entity has any secondary liability resulting from a transaction described in ERISA Section 4204 that would, if the Company or Commonly Controlled Entity were to become primarily liable, reasonably be likely to have a Material Adverse Effect.
(k) Except as disclosed in the SEC Documents or in Schedule 5.6(d), there exist no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between either of the Company or any Subsidiary and any current or former officer or director of either of the Company or any Subsidiary or for which either of the Company or any Subsidiary is liable.SM&A.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sm&a Corp)
Benefit Plans; ERISA Compliance. (a) Schedule 4.12(a) sets forth 4.19 contains a complete list of all "employee pension benefit plans" (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to in this Section 4.19 as "Pension Plans"), "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) (sometimes referred to in this Section 4.19 as "Welfare Plans") and all other Benefit Plans, as defined below, currently maintained in whole or in part, contributed to, or required to be contributed to by each of the Company and Subsidiary for the benefit of any present or former officer, employee or director of each of the Company and Subsidiary. For purposes of this Agreement, the term "Benefit Plan" shall mean any collective bargaining agreement or any bonus, pension, profit sharing, deferred compensation, incentive compensation, excess benefitstock ownership, stockstock purchase, stock option, phantom stock, retirement, vacation, severance, termination pay, change in control or other material employee benefit plans, programs or arrangements, including, but not limited to, those providing medical, dental, vision, disability, life insurance and vacation benefits death benefit, hospitalization, medical, dependant care, cafeteria, employee assistance, scholarship or other plan, program, arrangement or understanding (other than those required to be whether or not legally binding) maintained by law)in whole or in part, qualified or unqualified, funded or unfunded, foreign or domestic currently maintained, or contributed to, or required to be maintained or contributed to, to by each of the Company or any other person or entity that, together with the Company, is treated as a single employer under Section 414 of the Internal Revenue Code of 1986, as amended (the "Code") (each a "Commonly Controlled Entity") and Subsidiary for the benefit of any current present or former employeesofficer, officers, directors employee or independent contractors director of each of the Company or any Subsidiary and with respect to which is not a Pension Plan or Welfare Plan. Each of the Company or any and Subsidiary has any liability (collectively, the "Benefit Plans"). Except with respect delivered to any "multiemployer plan" (as defined in Section 3(37) of ERISA), the Company has delivered or made available to Parent SM&A true, complete and correct copies of (i) each Pension Plan, Welfare Plan and Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof) and related trust agreement and annuity contract and all amendments (none of which amendments will materially increase the costs of the amended plan), (ii) the three annual reports on Form 5500 most recently filed with the Internal Revenue Service ("IRS") with respect to the extent applicableeach Pension Plan or Welfare Plan (if any such report was required), (iii) a copy of each Benefit Plan's current summary plan description. In addition, to the extent applicable, the Company has provided or made available to Parent a copy of the most recent IRS determination letter issued, and copies of the two most recently filed IRS Forms 5500 together with all schedules, actuarial reports and accountants' statements request for each Benefit Plan, including Form 5500, Schedule B for each Benefit Pension Plan that is a "defined benefit plan" (as defined in Section 3(35) of ERISA), other than a multiemployer plan.
(b) To the Company's knowledge, each Benefit Plan has been administered in accordance with its terms and in compliance with the applicable provisions of ERISA and the Code where the failure to so administer or comply would have a Material Adverse Effect.
(c) All Benefit Plans (other than a multiemployer plan) intended to be qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that and all rulings or determinations concerning such Benefit Plans are qualified and exempt from Federal income taxes under Section 401(a) and 501(a), respectively, Pension Plan requested of the Code as amended at least through the statutory changes implemented under the Tax Reform Act of 1986, and no such determination letter has been revoked nor, IRS subsequent to the knowledge of the Company, has revocation been threatened, nor has any such Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification.
letter, (div) No Benefit Plan which is a "single-employer plan" (as defined in Section 4001(a)(15) of ERISA) and which is subject to Title IV of ERISA is, as of its most recent valuation date, unfunded by an amount which would have Material Adverse Effect based on actuarial assumptions indicated in the most recent actuarial valuation report. To report for each Pension Plan and Welfare Plan for which an actuarial report is required by ERISA, (v) the knowledge most recent summary plan description for each Pension Plan and Welfare Plan for which such summary plan description is required by ERISA and each summary of material modifications prepared, as required by ERISA, after the Companylast summary plan description, neither the Company nor any of the Subsidiaries is aware of any facts or circumstances that would materially and adversely change the funded status of any such Benefit Plans. None of the Benefit Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), and there has been no application for a waiver of the minimum funding standards imposed by Section 412 of the Code with respect vi) each trust agreement and/or group annuity contract relating to any Benefit Plan.
(e) To the Company's knowledge, no person or entity has incurred any liability under Title IV of ERISA or Section 412 of the Code during the time such person or entity was required to be treated as a single employer with the Company under Section 414 of the Code that would have a Material Adverse Effect.
(f) During the last five years, to the Company's knowledge, there has been no "reportable event" (as that term is defined in Section 4043 of ERISA) which is reasonably likely to have a Material Adverse Effect with respect to any Benefit Plan that is a single employer plan subject to Title IV of ERISA.
(g) With respect to any Benefit Plan that is an employee welfare benefit plan (as defined in Section 3(1) of ERISA), (i) to the best of the Company's knowledge, no such Benefit Plan provides benefits, including without limitation, death or medical benefits, except as set forth on Schedule 4.12(g), beyond termination of employment or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under a Benefit Plan qualified under Section 401(a) of the Code, and (iivii) each such Benefit Plan (including any such Plan covering retirees or all other former employees) may be amended or terminated without liability that would have a Material Adverse Effect to the Company or any of its subsidiaries on or at any time after the consummation of the Offer.
(h) Except as set forth on Schedule 4.12(h), no employee of the Company or any Commonly Controlled Entity will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit solely as a result of the transactions contemplated hereby. Without limiting the generality of the foregoing, no amount required to be paid or payable to or with respect to any employee of the Company or any Commonly Controlled Entity in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an "excess parachute payment" within the meaning of Section 280G of the Code.
(i) Except as indicated on Schedule 4.12(i), at no time since December 31, 1990, have the Company or any Commonly Controlled Entity, been required to contribute to, or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA to any multiemployer pension plan, within the meaning of Section 3(37) of ERISA. All required contributions, withdrawal liability payments or other payments of any type that the Company or any Commonly Controlled Entity have been obligated to make to any multiemployer plan have been duly and timely made. Any withdrawal liability incurred with respect to any multiemployer plan has been fully paid as of the date hereof. Neither the Company nor any Commonly Controlled Entity has undertaken any course of action that could information reasonably be expected to lead to a complete or partial withdrawal from any multiemployer plan that would reasonably be expected to result in a withdrawal liability that would have a Material Adverse Effect. Set forth next to each multiemployer plan listed on Schedule 4.12(i) is the amount of the withdrawal liability that would be incurred requested by the Company or any Commonly Controlled Entity with respect to such plan, under Section 4201 of ERISA, if the Company or any Commonly Controlled Entity were to completely withdraw from such multiemployer plan on the date hereof.
(j) Except as listed on Schedule 4.12(j), neither the Company nor any Commonly Controlled Entity has any secondary liability resulting from a transaction described in ERISA Section 4204 that would, if the Company or Commonly Controlled Entity were to become primarily liable, reasonably be likely to have a Material Adverse Effect.
(k) Except as disclosed in the SEC Documents or in Schedule 5.6(d), there exist no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between either of the Company or any Subsidiary and any current or former officer or director of either of the Company or any Subsidiary or for which either of the Company or any Subsidiary is liable.SM&A.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Merger (Steven Myers & Associates Inc)
Benefit Plans; ERISA Compliance. (a) Schedule 4.12(a) sets forth 3.18 contains a complete list of all "“employee pension benefit plans" ” (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)) (sometimes referred to in this Section 3.18 as “Pension Plans”), bonus, pension, profit sharing, deferred compensation, incentive compensation, excess benefit, stock, stock option, severance, termination pay, change in control or other material employee benefit plans, programs or arrangements, including, but not limited to, those providing medical, dental, vision, disability, life insurance and vacation benefits (other than those required to be maintained by law), qualified or unqualified, funded or unfunded, foreign or domestic currently maintained, or contributed to, or required to be maintained or contributed to, by the Company or any other person or entity that, together with the Company, is treated as a single employer under Section 414 of the Internal Revenue Code of 1986, as amended (the "Code") (each a "Commonly Controlled Entity") for the benefit of any current or former employees, officers, directors or independent contractors of the Company or any Subsidiary and with respect to which the Company or any Subsidiary has any liability (collectively, the "Benefit Plans"). Except with respect to any "multiemployer plan" (as defined in Section 3(37) of ERISA), the Company has delivered or made available to Parent true, complete and correct copies of each Benefit Plan and related trust agreement and annuity contract and (to the extent applicable) a copy of each Benefit Plan's current summary plan description. In addition, to the extent applicable, the Company has provided or made available to Parent a copy of the most recent IRS determination letter issued, and copies of the two most recently filed IRS Forms 5500 together with all schedules, actuarial reports and accountants' statements for each Benefit Plan, including Form 5500, Schedule B for each Benefit Plan that is a "defined benefit plan" (as defined in Section 3(35) of ERISA), other than a multiemployer plan.
(b) To the Company's knowledge, each Benefit Plan has been administered in accordance with its terms and in compliance with the applicable provisions of ERISA and the Code where the failure to so administer or comply would have a Material Adverse Effect.
(c) All Benefit Plans (other than a multiemployer plan) intended to be qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Benefit Plans are qualified and exempt from Federal income taxes under Section 401(a) and 501(a), respectively, of the Code as amended at least through the statutory changes implemented under the Tax Reform Act of 1986, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Benefit Plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification.
(d) No Benefit Plan which is a "single-employer plan" (as defined in Section 4001(a)(15) of ERISA) and which is subject to Title IV of ERISA is, as of its most recent valuation date, unfunded by an amount which would have Material Adverse Effect based on actuarial assumptions indicated in the most recent actuarial valuation report. To the knowledge of the Company, neither the Company nor any of the Subsidiaries is aware of any facts or circumstances that would materially and adversely change the funded status of any such Benefit Plans. None of the Benefit Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), and there has been no application for a waiver of the minimum funding standards imposed by Section 412 of the Code with respect to any Benefit Plan.
(e) To the Company's knowledge, no person or entity has incurred any liability under Title IV of ERISA or Section 412 of the Code during the time such person or entity was required to be treated as a single employer with the Company under Section 414 of the Code that would have a Material Adverse Effect.
(f) During the last five years, to the Company's knowledge, there has been no "reportable event" (as that term is defined in Section 4043 of ERISA) which is reasonably likely to have a Material Adverse Effect with respect to any Benefit Plan that is a single employer plan subject to Title IV of ERISA.
(g) With respect to any Benefit Plan that is an “employee welfare benefit plan plans” (as defined in Section 3(1) of ERISA)) (sometimes referred to in this Section 3.18 as “Welfare Plans”) and all other Benefit Plans, as defined below, currently maintained in whole or in part, contributed to, or required to be contributed to by the Companies for the benefit of any of their respective present or former officers, employees or directors. The Sellers have delivered to Buyer true, complete and correct copies of (a) the Pension Plans, Welfare Plans and Benefit Plans (or, in the case of any unwritten Benefit Plans, descriptions thereof) of the Companies, (ib) all material correspondence for the last three (3) years prior to the best Closing Date with the IRS or the United States Department of the Company's knowledgeLabor relating to plan qualification, no filing of required forms, pending, contemplated or announced plan audits with respect to any such Pension Plan, Welfare Plan or Benefit Plan, if any, and (c) all other information reasonably requested by Buyer.
(b) No Company maintains any Pension Plan or Benefit Plan provides benefits, including without limitation, death or medical benefits, except as set forth on Schedule 4.12(g), beyond termination of employment or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under intended to be a Benefit Plan tax qualified under plan described Section 401(a) of the Code, and no such plan is or has been subject to the minimum funding rules of Code Section 412 or ERISA Section 302, or the plan termination insurance provisions of Title IV of ERISA.
(c) Each of the Pension Plans, Welfare Plans and Benefit Plans sponsored by, and each of the benefit plans formerly sponsored by, the Companies: (i) has been in material compliance with all reporting and disclosure requirements of (A) Part 1 or Subtitle B of Title I of ERISA, if applicable, or (B) other applicable law, (ii) has had the appropriate required Form 5500 (or equivalent annual report) filed timely with the appropriate governmental entity for each such Benefit Plan year of its existence, (including iii) has at all times complied with the bonding requirements of (A) Section 412 of ERISA, if applicable, or (B) other applicable law, (iv) has no issue pending (other than the payment of benefits in the normal course) nor any such Plan covering retirees or other former employees) may be amended or terminated without liability that would have a Material Adverse Effect issue resolved adversely to the any Company or any of its their respective subsidiaries on which may subject such Company or at any time after of their respective subsidiaries to the payment of any material penalty, interest, tax or other obligation, nor is there any basis for any imposition of any such liability, and (v) has been maintained in all respects in material compliance with the applicable requirements of ERISA, the Code and other applicable law not otherwise covered hereunder so as not to give rise to any material liabilities to any Company.
(d) There are no voluntary employee benefit associations maintained by any Company and intended to be exempt from federal income tax under Section 501(c)(9) of the Code.
(e) Neither the execution of this Agreement nor the consummation of the Offer.
(h) Except as set forth on Schedule 4.12(h)transactions contemplated by this Agreement will give rise to, no employee or trigger, any change of the Company or any Commonly Controlled Entity will become entitled to any retirementcontrol, severance or other similar provisions in any Pension Plan, Welfare Plan or Benefit Plan sponsored by any Company. The consummation of any transaction contemplated by this Agreement will not result in any: (i) payment (whether of severance pay or otherwise) becoming due from the Companies to any of their respective officers, employees, former employees or directors or to the trustee under any “rabbi trust” or similar arrangement; (ii) benefit or enhanced or accelerated benefit solely as a result under any Benefit Plan of the transactions contemplated hereby. Without limiting the generality Companies being established or becoming accelerated, vested or payable; or (iii) payment or series of the foregoingpayments by any Company, no amount required to be paid directly or payable to or with respect indirectly, to any employee of the Company or any Commonly Controlled Entity in connection with the transactions contemplated hereby (either solely as person that would constitute a result thereof or as a result of such transactions in conjunction with any other event) will be an "excess “parachute payment" ” within the meaning of Section 280G of the Code.
(f) No Company provides any material post-retirement medical, health, disability or death protection coverage or contribute to or maintain any employee welfare benefit plan which provides for medical, health, disability or death benefit coverage following termination of employment by any officer, director or employee except as is required by Section 4980B(f) of the Code or other applicable statute, nor has any Company made any representations, agreements, covenants or commitments to provide that coverage.
(g) With respect to any Welfare Plan of the Companies, (i) Except each such Welfare Plan that is a group health plan, as indicated such term is defined in Section 5000(b)(1) of the Code, complies in all material respects with any applicable requirements of Part 6 of Title I of ERISA and Section 4980B(f) of the Code and (ii) each such Welfare Plan (including any such plan covering retirees or other former employees) may be amended or terminated with respect to health benefits without material liability to any Company on Schedule 4.12(ior at any time after the Closing Date.
(h) All contributions required by law or by a collective bargaining or other agreement to be made under any Pension Plan, Welfare Plan or Benefit Plan of any Company with respect to all periods through the Closing Date, including a pro rata share of contributions due for the current plan year, will have been made by such date or provided for by adequate reserves by such Company. No changes in contribution rates or benefit levels have been implemented or negotiated (but not yet implemented), at no time since December 31, 1990, have the Company or any Commonly Controlled Entity, been required to contribute to, or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA to any multiemployer pension plan, within the meaning of Section 3(37) of ERISA. All required contributions, withdrawal liability payments or other payments of any type that the Company or any Commonly Controlled Entity have been obligated to make to any multiemployer plan have been duly and timely made. Any withdrawal liability incurred with respect to any multiemployer plan Pension Plan, Welfare Plan or Benefit Plan of any Company since the date on which the information provided in the attached Schedule 3.18 has been fully paid as of the date hereof. Neither the Company nor any Commonly Controlled Entity has undertaken any course of action that could reasonably be expected provided, and no such changes are scheduled to lead to a complete or partial withdrawal from any multiemployer plan that would reasonably be expected to result in a withdrawal liability that would have a Material Adverse Effect. Set forth next to each multiemployer plan listed on Schedule 4.12(i) is the amount of the withdrawal liability that would be incurred by the Company or any Commonly Controlled Entity with respect to such plan, under Section 4201 of ERISA, if the Company or any Commonly Controlled Entity were to completely withdraw from such multiemployer plan on the date hereofoccur.
(ji) Except No Company has, nor will any Company have, any liability or obligation for taxes, penalties, contributions, losses, claims, damages, judgments, settlement costs, expenses, costs, or any other liability or liabilities of any nature whatsoever arising out of or in any manner relating to any Pension Plan, Welfare Plan or Benefit Plan (including but not limited to employee benefit plans such as listed on Schedule 4.12(jforeign plans which are not subject to ERISA), neither that has been, or is, contributed to by any entity, whether or not incorporated, which is deemed to be under common control (as defined in Section 414 of the Company nor any Commonly Controlled Entity has any secondary liability resulting from a transaction described in ERISA Section 4204 that would, if the Company or Commonly Controlled Entity were to become primarily liable, reasonably be likely to have a Material Adverse Effect.
(k) Except as disclosed in the SEC Documents or in Schedule 5.6(dCode), there exist no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between either of the Company or with any Subsidiary and any current or former officer or director of either of the Company or any Subsidiary or for which either of the Company or any Subsidiary is liablesuch Company.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Wca Waste Corp)
Benefit Plans; ERISA Compliance. (ai) Schedule 4.12(a4.1(o) sets forth contains a complete list of all "employee benefit plans" collective bargaining agreements or any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock, stock appreciation right, retirement, vacation, severance, death benefit, hospitalization, medical, worker’s compensation, disability, supplementary unemployment benefits, or other plan, arrangement or understanding (whether or not legally binding) or any employment agreement providing compensation or benefits to any current or former employee, officer, director or independent contractor of the Company or any of its ERISA Affiliates (as defined below) or any beneficiary thereof or entered into, maintained or contributed to, as the case may be, by the Company or any of its ERISA Affiliates (collectively, “Benefit Plans”), including “employee pension benefit plans” (defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("“ERISA"”)), bonus, pension, profit sharing, deferred compensation, incentive compensation, excess benefit, stock, stock option, severance, termination pay, change “employee welfare benefit plans” (defined in control or Section 3(l) of ERISA) and all other material “employee benefit plans, programs or arrangements, including, but not limited to, those providing medical, dental, vision, disability, life insurance and vacation benefits (other than those required to be maintained by law), qualified or unqualified, funded or unfunded, foreign or domestic currently maintained, or contributed to, or required to be maintained or contributed to, by the Company or any other person or entity that, together with the Company, is treated as a single employer under Section 414 of the Internal Revenue Code of 1986, as amended (the "Code") (each a "Commonly Controlled Entity") for the benefit of any current or former employees, officers, directors or independent contractors of the Company or any Subsidiary and with respect to which the Company or any Subsidiary has any liability (collectively, the "Benefit Plans"). Except with respect to any "multiemployer plan" ” (as defined in Section 3(373(3) of ERISA). With respect to each Benefit Plan, on or prior to the Acceptance Date, the Company has shall have delivered or made available to Parent a true, correct and complete copy of: (A) each writing constituting a part of such Benefit Plan, including without limitation all plan documents, benefit schedules, trust agreements, administrative service agreements (including group annuity contracts, group insurance contracts and correct copies of each Benefit Plan and related trust agreement and annuity contract and (policies pertaining to fiduciary liability insurance covering the extent applicable) a copy of fiduciaries for each Benefit Plan's ) and insurance contracts and other funding vehicles; (B) the three most recent Annual Reports (Form 5500 Series) and accompanying schedules, if any; (C) the current summary plan description. In addition, to if any, together with the extent applicablesummary of material modifications thereto, the Company has provided or made available to Parent a copy of any required under ERISA; (D) the most recent IRS determination annual financial report, if any; (E) the most recent determination, opinion, notification or advisory letter issuedfrom the United States Internal Revenue Service, if any; (F) the most recent annual actuarial valuations, if any; (G) if the Benefit Plan is funded, the most recent annual and copies periodic accounting of Benefit Plan assets; (H) all communications material to any current of former employee, officer, director or independent contractor relating to any Benefit Plan and any proposed Benefit Plans, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events which would result in any material liability to the two Company; (I) the three (3) most recently filed IRS Forms 5500 together with all schedules, actuarial reports and accountants' statements recent plan years discrimination tests for each Benefit Plan; and (J) all registration statements, including annual reports (Form 5500, Schedule B for each Benefit Plan that is a "defined benefit plan" (as defined in Section 3(35) of ERISA), other than a multiemployer plan.
(b) To the Company's knowledge, each Benefit Plan has been administered in accordance with its terms 11-K and in compliance with the applicable provisions of ERISA and the Code where the failure to so administer or comply would have a Material Adverse Effect.
(c) All Benefit Plans (other than a multiemployer plan) intended to be qualified under Section 401(a) of the Code have been the subject of determination letters from the Internal Revenue Service to the effect that such Benefit Plans are qualified and exempt from Federal income taxes under Section 401(aall attachments thereto) and 501(a), respectively, of the Code as amended at least through the statutory changes implemented under the Tax Reform Act of 1986, and no such determination letter has been revoked nor, to the knowledge of the Company, has revocation been threatened, nor has any such Benefit Plan been amended since the date of its most recent determination letter or application therefor prospectuses prepared in any respect that would adversely affect its qualification.
(d) No Benefit Plan which is a "single-employer plan" (as defined in Section 4001(a)(15) of ERISA) and which is subject to Title IV of ERISA is, as of its most recent valuation date, unfunded by an amount which would have Material Adverse Effect based on actuarial assumptions indicated in the most recent actuarial valuation report. To the knowledge of the Company, neither the Company nor any of the Subsidiaries is aware of any facts or circumstances that would materially and adversely change the funded status of any such Benefit Plans. None of the Benefit Plans has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA or Section 412 of the Code), and there has been no application for a waiver of the minimum funding standards imposed by Section 412 of the Code connection with respect to any each Benefit Plan.
(e) To the Company's knowledge, no person or entity has incurred any liability under Title IV of ERISA or Section 412 of the Code during the time such person or entity was required to be treated as a single employer with the Company under Section 414 of the Code that would have a Material Adverse Effect.
(f) During the last five years, to the Company's knowledge, there has been no "reportable event" (as that term is defined in Section 4043 of ERISA) which is reasonably likely to have a Material Adverse Effect with respect to any Benefit Plan that is a single employer plan subject to Title IV of ERISA.
(g) With respect to any Benefit Plan that is an employee welfare benefit plan (as defined in Section 3(1) of ERISA), (i) to the best of the Company's knowledge, no such Benefit Plan provides benefits, including without limitation, death or medical benefits, except as set forth on Schedule 4.12(g), beyond termination of employment or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under a Benefit Plan qualified under Section 401(a) of the Code, and (ii) each such Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without liability that would have a Material Adverse Effect to the Company or any of its subsidiaries on or at any time after the consummation of the Offer.
(h) Except as set forth on Schedule 4.12(h), no employee of the Company or any Commonly Controlled Entity will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit solely as a result of the transactions contemplated hereby. Without limiting the generality of the foregoing, no amount required to be paid or payable to or with respect to any employee of the Company or any Commonly Controlled Entity in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an "excess parachute payment" within the meaning of Section 280G of the Code.
(i) Except as indicated on Schedule 4.12(i), at no time since December 31, 1990, have the Company or any Commonly Controlled Entity, been required to contribute to, or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA to any multiemployer pension plan, within the meaning of Section 3(37) of ERISA. All required contributions, withdrawal liability payments or other payments of any type that the Company or any Commonly Controlled Entity have been obligated to make to any multiemployer plan have been duly and timely made. Any withdrawal liability incurred with respect to any multiemployer plan has been fully paid as of the date hereof. Neither the Company nor any Commonly Controlled Entity has undertaken any course of action that could reasonably be expected to lead to a complete or partial withdrawal from any multiemployer plan that would reasonably be expected to result in a withdrawal liability that would have a Material Adverse Effect. Set forth next to each multiemployer plan listed on Schedule 4.12(i) is the amount of the withdrawal liability that would be incurred by the Company or any Commonly Controlled Entity with respect to such plan, under Section 4201 of ERISA, if the Company or any Commonly Controlled Entity were to completely withdraw from such multiemployer plan on the date hereof.
(j) Except as listed on Schedule 4.12(j), neither the Company nor any Commonly Controlled Entity has any secondary liability resulting from a transaction described in ERISA Section 4204 that would, if the Company or Commonly Controlled Entity were to become primarily liable, reasonably be likely to have a Material Adverse Effect.
(k) Except as disclosed in the SEC Documents or in Schedule 5.6(d), there exist no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between either of the Company or any Subsidiary and any current or former officer or director of either of the Company or any Subsidiary or for which either of the Company or any Subsidiary is liable.
Appears in 1 contract
Benefit Plans; ERISA Compliance. (a) There has not been any adoption or material amendment by Company of any collective bargaining agreement or any bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock option, phantom stock retirement, vacation, severance, disability, death benefit, hospitalization, medical, dependant care, cafeteria, employee assistance, scholarship or other plan, program, arrangement or understand (whether or not legally binding) maintained in whole or in part, contributed to, or required to be contributed to by Company for the benefit of any present or former officer, employee or director of Company (collectively, and including all amendments thereto, for purposes of this Section 5.20, "Benefit Plans"), other than those listed on Schedule 4.12(a5.20.
(b) sets forth Schedule 5.20 contains a complete list of all "employee pension benefit plans" (as defined in Section 3(33(2) of the Employee Employment Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to in this Section 5.20 as "Pension Plans"), bonus, pension, profit sharing, deferred compensation, incentive compensation, excess benefit, stock, stock option, severance, termination pay, change in control or other material "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) (sometimes referred to in this Section 5.20 as "Welfare Plans") and all other Benefit Plans currently maintained in whole or in part, programs or arrangements, including, but not limited to, those providing medical, dental, vision, disability, life insurance and vacation benefits (other than those required to be maintained by law), qualified or unqualified, funded or unfunded, foreign or domestic currently maintained, or contributed to, or required to be maintained or contributed to, to by the Company or any other person or entity that, together with the Company, is treated as a single employer under Section 414 of the Internal Revenue Code of 1986, as amended (the "Code") (each a "Commonly Controlled Entity") for the benefit of any current present or former employeesofficer, officers, directors employee or independent contractors director of the Company or any Subsidiary and with respect to which the Company or any Subsidiary has any liability (collectively, the "Benefit Plans")Company. Except with respect to any "multiemployer plan" (as defined in Section 3(37) of ERISA), the Company has delivered or made available to Parent Cotelligent true, complete and correct copies of (A) each Benefit Plan and related trust agreement and annuity contract and (or, in the case of any unwritten Benefit Plans, descriptions thereof), (B) the three annual reports on Form 5500 most recently filed with the Internal Revenue Service ("IRS") with respect to the extent applicable) a copy of each Benefit Plan's current summary plan description. In additionPlan (if any such report was required), to the extent applicable, the Company has provided or made available to Parent a copy of (C) the most recent IRS determination letter issued, and copies of the two most recently filed IRS Forms 5500 together with all schedules, actuarial reports and accountants' statements for each Benefit Plan, including Form 5500, Schedule B for each Benefit Plan that is a "defined benefit plan" (as defined in Section 3(35) of ERISA), other than a multiemployer plan.
(b) To the Company's knowledge, each Benefit Plan has been administered in accordance with its terms and in compliance with the applicable provisions of ERISA and the Code where the failure to so administer or comply would have a Material Adverse Effect.
(c) All Benefit Plans (other than a multiemployer plan) intended to be qualified under Section 401(a) of the Code and all rulings or determinations concerning such Benefit Plan requested of the IRS subsequent to the date of that letter, if any have been issued or requested, (D) the most recent actuarial report for each Benefit Plan for which an actuarial report is required by ERISA, (E) the most recent summary plan description for each Benefit Plan for which such summary plan description is required by ERISA and each summary of material modifications prepared, as required by ERISA, after the last summary plan description, and (F) each trust agreement and/or group annuity contract relating to any Benefit Plan.
(c) Each Pension Plan maintained and each pension plan formerly maintained that is or was intended to be qualified under Section 401(a) of the Code has been the subject of a determination letters letter from the Internal Revenue Service IRS to the effect that such Benefit Plans are plan is qualified and exempt from Federal income taxes under Section 401(a) and 501(a), respectively, of the Code as amended at least through or can still be submitted in a timely manner to the statutory changes implemented under the Tax Reform Act of 1986IRS for such a letter, and no such determination letter has been revoked nor, to the knowledge of the Company, nor has revocation of any such letter been threatened, nor has any such Benefit Plan plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualificationqualification or materially increase its costs, and nothing has occurred or failed to occur which would cause the loss of such qualifications, and all amendments required to be adopted before the Effective Time for any such Pension Plan to continue to be so qualified have been or will be duly and timely adopted; provided however, that to the extent that this representation applies to terminated pension plans, this representation refers to the qualified status of any such plan through the time of its termination.
(d) No Benefit Plan which is a "single-employer plan" (as defined in Section 4001(a)(15) of ERISA) and which is subject to Title IV of ERISA is, as of its most recent valuation date, unfunded by an amount which would have Material Adverse Effect based on actuarial assumptions indicated in the most recent actuarial valuation report. To the knowledge of the Company, neither the Company nor any of the Subsidiaries is aware of any facts or circumstances that would materially and adversely change the funded status of any such Benefit Plans. None Each of the Benefit Plans sponsored by, and each of the benefit plans formerly sponsored by, Company:
(A) has an "accumulated funding deficiency" been in substantial compliance with all reporting and disclosure requirements of (as such term is defined in Section 302 i)Part 1 or Subtitle B of ERISA Title I of ERISA, if applicable, or (ii) other applicable law, (B)has had the appropriate required Form 5500 (or equivalent annual report) filed timely with the appropriate governmental entity for each year of its existence, (C) has at all times complied with the bonding requirements of Section 412 of ERISA, if applicable, (D) has no issue pending (other than the Code)payment of benefits in the normal course) nor any issue resolved adversely to Company which may subject Company to the payment of material penalty, interest, tax or other obligation, nor is there any basis for any imposition of any such liability, and there (E) has been no application for a waiver maintained in all respects in compliance with the applicable requirements of the minimum funding standards imposed by Section 412 of ERISA, the Code with respect and other applicable law (including all rules and regulations issued thereunder) not otherwise covered hereunder so as not to give rise to any Benefit Planmaterial liabilities to Company.
(e) To the Company's knowledge, no person The execution of this Agreement or entity has incurred any liability under Title IV of ERISA or Section 412 of the Code during the time such person or entity was required to be treated as a single employer with the Company under Section 414 of the Code that would have a Material Adverse Effect.
(f) During the last five years, to the Company's knowledge, there has been no "reportable event" (as that term is defined in Section 4043 of ERISA) which is reasonably likely to have a Material Adverse Effect with respect to any Benefit Plan that is a single employer plan subject to Title IV of ERISA.
(g) With respect to any Benefit Plan that is an employee welfare benefit plan (as defined in Section 3(1) of ERISA), (i) to the best of the Company's knowledge, no such Benefit Plan provides benefits, including without limitation, death or medical benefits, except as set forth on Schedule 4.12(g), beyond termination of employment or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under a Benefit Plan qualified under Section 401(a) of the Code, and (ii) each such Benefit Plan (including any such Plan covering retirees or other former employees) may be amended or terminated without liability that would have a Material Adverse Effect to the Company or any of its subsidiaries on or at any time after the consummation of the Offer.
(h) Except as set forth on Schedule 4.12(h)transactions contemplated by this Agreement will not give rise to any, no employee or trigger any, change of the Company or any Commonly Controlled Entity will become entitled to any retirementcontrol, severance or other similar benefit provisions in any Benefit Plan. The consummation of any transaction contemplated by this Agreement will not result in any (i)payment (whether of severance pay or enhanced or accelerated benefit solely as a result of the transactions contemplated hereby. Without limiting the generality of the foregoing, no amount required to be paid or payable to or with respect otherwise) becoming due from Company to any officer, employee, former employee of the Company or any Commonly Controlled Entity in connection with the transactions contemplated hereby (either solely as a result director thereof or as to the trustee under any "rabbi trust" or similar arrangement ; (ii) benefit under any Benefit Plan of Company being established or becoming accelerated, vested or payable; or (iii)payment or series of payments by Company, directly or indirectly, to any person that would constitute a result of such transactions in conjunction with any other event) will be an "excess parachute payment" within the meaning of Section 280G of the Code.
(if) Except Company provides no material post-retirement medical, health, disability or death protection coverage or contributes to or maintains any employee welfare benefit plan which provides for medical, health, disability or death benefit coverage following termination of employment by any officer, director or employee except as indicated on Schedule 4.12(i)is required by Section 4980B(f) of the Code or other applicable statute, at no time since December 31nor has it made any representations, 1990agreements, have the covenants or commitments to provide that coverage.
(g) None of Company, any officer of Company or any Commonly Controlled Entity, been required of the Benefit Plans or prior benefit plans (including the Pension Plans and prior pension plans) which are subject to contribute toERISA, or incurred any withdrawal liabilitytrusts created thereunder, within the meaning of or any trustee or administrator thereof, has engaged in a non-exempt "prohibited transaction" (as such term is defined in Section 4201 406, 407 or 408 of ERISA to or Section 4975 of the Code) or any multiemployer pension plan, within the meaning other breach of Section 3(37) of ERISA. All required contributions, withdrawal liability payments or other payments of any type fiduciary responsibility that the could subject Company or any Commonly Controlled Entity officer of Company to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code or to any liability under Section 502(i) or (1) of ERISA which would have a material adverse effect on Company.
(h) With respect to any Benefit Plan that is a Welfare Plan, (A) each such Benefit Plan that is a group health plan, as such term is defined in Section 5000(b)(1) of the Code, complies in all material respects with any applicable requirements of Part 6 of Title I of ERISA and Section 4980B(f) of the Code and (B) each such Benefit Plan (including any such plan covering retirees or other former employees) may be amended or terminated with respect to health benefits without material liability to Company on or at any time after the Closing Date.
(i) All contributions required by law or by a collective bargaining or other agreement to be made under the Benefit Plans with respect to all periods through the Effective Date of the Merger, including a pro rata share of contributions due for the current plan year, will have been obligated to make to any multiemployer plan made by such date or provided for by adequate reserves by Company. No changes in contribution rates or benefit levels have been duly and timely made. Any withdrawal liability incurred implemented or negotiated (but not yet implemented), with respect to any multiemployer plan Benefit Plan since the date on which the information provided in the attached schedule has been fully paid as of the date hereof. Neither the Company nor any Commonly Controlled Entity has undertaken any course of action that could reasonably be expected provided, and no such changes are scheduled to lead to a complete or partial withdrawal from any multiemployer plan that would reasonably be expected to result in a withdrawal liability that would have a Material Adverse Effect. Set forth next to each multiemployer plan listed on Schedule 4.12(i) is the amount of the withdrawal liability that would be incurred by the Company or any Commonly Controlled Entity with respect to such plan, under Section 4201 of ERISA, if the Company or any Commonly Controlled Entity were to completely withdraw from such multiemployer plan on the date hereofoccur.
(j) Except Company has not and will not have any material liability or obligation for taxes, penalties, contributions, losses, claims, damages, judgments, settlement costs, expenses, costs, or any other liability or liabilities of any nature whatsoever arising out of or in any manner relating to any Benefit Plan or prior benefit plan (including but not limited to employee benefit plans such as listed on Schedule 4.12(jforeign plans which are not subject to ERISA), neither that has been, or is, contributed to by any entity, whether or not incorporated, which is deemed to be under common control (as defined in Section 414 of the Company nor any Commonly Controlled Entity has any secondary liability resulting from a transaction described in ERISA Section 4204 that would, if the Company or Commonly Controlled Entity were to become primarily liable, reasonably be likely to have a Material Adverse Effect.
(k) Except as disclosed in the SEC Documents or in Schedule 5.6(dCode), there exist no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between either of the Company or any Subsidiary and any current or former officer or director of either of the Company or any Subsidiary or for which either of the Company or any Subsidiary is liablewith Company.
Appears in 1 contract
Benefit Plans; ERISA Compliance. Except as set forth on Exhibit ------------------------------- ------- 4.18: ----
(a1) Schedule 4.12(a) sets forth 4.18 contains a complete list of all "employee pension benefit ------------- plans" (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to in this Section ----- ------- 4.18 as "Pension Plans"), "employee ---- ------------- welfare benefit plans" (as defined in Section 3(1) of ERISA) (sometimes referred to in this Section 4.18 as "Welfare Plans") and all other Benefit ------------ ------------- Plans, as defined below, currently maintained in whole or in part, contributed to, or required to be contributed to by the Company for the benefit of any present or former officer, employee or director of the Company. For purposes of this Agreement, the term "Benefit Plan" shall mean ------------ any collective bargaining agreement or any bonus, pension, profit sharing, deferred compensation, incentive compensation, excess benefitstock ownership, stockstock purchase, stock option, phantom stock, retirement, vacation, severance, termination pay, change in control or other material employee benefit plans, programs or arrangements, including, but not limited to, those providing medical, dental, vision, disability, life insurance and vacation benefits death benefit, hospitalization, medical, dependent care, cafeteria, employee assistance, scholarship or other plan, program, arrangement or understanding (other than those required to be whether or not legally binding) maintained by law)in whole or in part, qualified or unqualified, funded or unfunded, foreign or domestic currently maintained, or contributed to, or required to be maintained or contributed to, to by the Company or any other person or entity that, together with the Company, is treated as a single employer under Section 414 of the Internal Revenue Code of 1986, as amended (the "Code") (each a "Commonly Controlled Entity") for the benefit of any current present or former employeesofficer, officers, directors employee or independent contractors director of the Company which is not a Pension Plan or any Subsidiary and with respect to which the Company or any Subsidiary has any liability (collectively, the "Benefit Plans")Welfare Plan. Except with respect to any "multiemployer plan" (as defined in Section 3(37) of ERISA), the The Company has delivered or made available to Parent SM&A true, complete and correct copies of (i) each Pension Plan, Welfare Plan and Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions thereof) and related trust agreement and annuity contract and all amendments (none of which amendments will materially increase to costs of the extent applicableamended plan), (ii) a copy of the three annual reports on Form 5500 most recently filed with the Internal Revenue Service (the "IRS") with respect to each Benefit Plan's current summary plan description. In additionPension Plan or --- Welfare Plan (if any such report was required), to the extent applicable, the Company has provided or made available to Parent a copy of (iii) the most recent IRS determination letter issued, and copies of the two most recently filed IRS Forms 5500 together with all schedules, actuarial reports and accountants' statements request for each Benefit Plan, including Form 5500, Schedule B for each Benefit Pension Plan that is a "defined benefit plan" (as defined in Section 3(35) of ERISA), other than a multiemployer plan.
(b) To the Company's knowledge, each Benefit Plan has been administered in accordance with its terms and in compliance with the applicable provisions of ERISA and the Code where the failure to so administer or comply would have a Material Adverse Effect.
(c) All Benefit Plans (other than a multiemployer plan) intended to be qualified under Section 401(a) of the Code have and all rulings or determinations concerning such Pension Plan requested of the IRS subsequent to the date of that letter, (iv) the most recent actuarial report for each Pension Plan and Welfare Plan for which an actuarial report is required by ERISA, (v) the most recent summary plan description for each Pension Plan and Welfare Plan for which such summary plan description is required by ERISA and each summary of material modifications prepared, as required by ERISA, after the last summary plan description, (vi) each trust agreement and/or group annuity contract relating to any Benefit Plan, and (vii) all other information reasonably requested by SM&A.
(2) Each Pension Plan maintained and each pension plan formerly maintained that is or was intended to be qualified under Section 401(a) of the Code has been the subject of a determination letters letter from the Internal Revenue Service IRS to the effect that such Benefit Plans are plan is qualified and exempt from Federal income taxes under Section 401(a) and 501(a), respectively, of the Code as amended at least through or can still be submitted in a timely manner to the statutory changes implemented under the Tax Reform Act of 1986IRS for such a letter, and no such determination letter has been revoked nor, to the knowledge of the Company, nor has revocation of any such letter been threatened, nor has any such Benefit Plan plan been amended since the date of its most recent determination letter or application therefor in any respect that would adversely affect its qualification or materially increase its costs, and nothing has occurred or failed to occur which would cause the loss of such qualification, and all amendments required to be adopted before the Effective Time for any such Pension Plan to continue to be so qualified have been or will be duly and timely adopted; provided however, that to the extent that this representation applies to terminated pension plans, this representation refers to the qualified status of any such plan through the time of its termination. To the best Knowledge of the Company, the Company has paid all premiums (including any applicable interest, charges and penalties for late payment) due the Pension Benefit Guaranty Corporation (the "PBGC") with respect to each such Pension Plan ---- for which premiums to the PBGC are required and no such Pension Plan in whole or in part maintained by the Company has been terminated or partially terminated under circumstances which would result in liability to the PBGC.
(d3) Except as set forth on Schedule 4.18, each of the Pension Plan, ------------- Welfare Plan and Benefit Plans sponsored by, and each of the benefit plans formerly sponsored by the Company:
(i) has been in substantial compliance with all reporting and disclosure requirements of (x) Part 1 or Subtitle B of Title I of ERISA, if applicable, or (y) other applicable law, (ii) has had the appropriate required Form 5500 (or equivalent annual report) filed timely with the appropriate governmental entity for each year of its existence, (iii) has at all times complied with the bonding requirements of (x) Section 412 of ERISA, if applicable, or (y) other applicable law, (iv) has no issue pending (other than the payment of benefits in the normal course) nor any issue resolved adversely to the Company which may subject the Company to the payment of penalty, interest, tax or other obligation that can be expected to have a Material Adverse Effect on the Company, nor is there any basis for any imposition of any such liability, and (v) has been maintained in all respects in compliance with the applicable requirements of ERISA, the Code and other applicable law not otherwise covered hereunder so as not to have any Material Adverse Effect on the Company.
(4) All voluntary employee benefit associations maintained by the Company and intended to be exempt from federal income tax under Section 501(c)(9) of the Code have been submitted to and approved as exempt from federal income tax under Section 501(c)(9) of the Code by the IRS, and, to the best Knowledge of the Company, nothing has occurred or failed to occur which would cause the loss of such exemption.
(5) The execution of this Agreement or the consummation of the transactions contemplated by this Agreement will not give rise to any, or trigger any, change of control, severance or other similar provisions in any Pension Plan, Welfare Plan or Benefit Plan. The consummation of any transaction contemplated by this Agreement will not result in any (i) payment (whether of severance pay or otherwise) becoming due from the Company to any officer, employee, former employee or director thereof or to the trustee under any "rabbi trust" or similar arrangement; (ii) benefit under any Benefit Plan of the Company being established or becoming accelerated, vested or payable; or (iii) payment or series of payments by the Company, directly or indirectly, to any person that would constitute a "parachute payment" within the meaning of Section 280G of the Code.
(6) The Company provides no material post-retirement medical, health, disability or death protection coverage or contributes to or maintains any employee welfare benefit plan which provides for medical, health, disability or death benefit coverage following termination of employment by any officer, director or employee except as is required by Section 4980B(f) of the Code or other applicable statute, nor has it made any representations, agreements, covenants or commitments to provide that coverage.
(7) No Benefit Pension Plan or pension plan subject to Tile IV of ERISA (i) that the Company maintains or maintained, or (ii) to which the Company is or was obligated to contribute, other than any such plan that is or was a "single-employer multiemployer plan" (as such term is defined in Section 4001(a)(154001(a)(3) of ERISA) and which is subject to Title IV of ERISA ishad, as of its most recent annual valuation date, an "unfunded by an amount which would have Material Adverse Effect benefit liability" (as such term is defined in Section 4001(a)(18) of ERISA), based on actuarial assumptions indicated in the most recent actuarial valuation report. To the knowledge of the Company, neither the Company nor any of the Subsidiaries is aware of any facts or circumstances that would materially and adversely change the funded status of any such Benefit Plans. which have been furnished to SM&A. None of the Benefit Plans such plans subject to Section 302 of ERISA has an "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA ERISA), whether or Section 412 not waived. The Company, any officer of the Code)Company, and there has been no application for a waiver or any of the minimum funding standards imposed by Pension Plan or Welfare Plans (including the Pension Plans and prior pension plans) which are subject to ERISA, or any trusts created thereunder, or any trustee or administrator thereof, has engaged in a "prohibited transaction" (as such term is defined in Section 412 of the Code with respect to any Benefit Plan.
(e) To the Company's knowledge406, no person 407 or entity has incurred any liability under Title IV 408 of ERISA or Section 412 4975 of the Code) or any other breach of fiduciary responsibility that could subject the Company or any officer of the Company to the tax or penalty on prohibited transactions imposed by such Section 4975 of the Code during the time such person or entity was required to be treated as a single employer with the Company any liability under Section 414 of the Code that ERISA which would have a Material Adverse Effect.
(f) During the last five years, to Effect on the Company's knowledge. To the best Knowledge of the Company, there has been no "reportable event" (as that term is defined in Section 4043 of ERISA) with respect to which the thirty (30)-day notice requirement has not been waived has occurred and is reasonably likely continuing with respect to any such Pension Plan, other than as may arise as a result of the consummation of the Merger. The Company has not suffered a "complete withdrawal" or a "partial withdrawal" (as such terms are defined in Section 4203 and Section 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 for which the Company has any liability outstanding that can be expected to have a Material Adverse Effect with on the Company.
(8) With respect to any Benefit Welfare Plan, (i) each such Welfare Plan that is a single employer plan subject to Title IV of ERISA.
(g) With respect to any Benefit Plan that group health plan, as such term is an employee welfare benefit plan (as defined in Section 3(1) of ERISA), (i) to the best of the Company's knowledge, no such Benefit Plan provides benefits, including without limitation, death or medical benefits, except as set forth on Schedule 4.12(g), beyond termination of employment or retirement other than (A) coverage mandated by law or (B) death or retirement benefits under a Benefit Plan qualified under Section 401(a5000(b)(1) of the Code, complies in all material respects with any applicable requirements of Part 6 of Title I of ERISA and Section 4980B(f) of the Code and (ii) each such Benefit Welfare Plan (including any such Plan plan covering retirees or other former employees) may be amended or terminated with respect to health benefits without liability that would have having a Material Adverse Effect to on the Company or any of its subsidiaries on or at any time after the consummation of the OfferConsummation Date.
(h9) Except as set forth on Schedule 4.12(hAll contributions required by law or by a collective bargaining or other agreement to be made under the Pension Plan, Welfare Plan or Benefit Plans with respect to all periods through the Effective Date of the Merger, including a pro rata share of contributions due for the current plan year, will have been made by such date or provided for by adequate reserves by the Company. No changes in contribution rates or benefit levels have been implemented or negotiated (but not yet implemented), no employee of the Company or any Commonly Controlled Entity will become entitled to any retirement, severance or similar benefit or enhanced or accelerated benefit solely as a result of the transactions contemplated hereby. Without limiting the generality of the foregoing, no amount required to be paid or payable to or with respect to any employee of Pension Plan, Welfare Plan or Benefit Plan since the date on which the information provided in the attached schedule has been provided, and no such changes are scheduled to occur.
(10) The Company has not and will not have any liability or obligation for taxes, penalties, contributions, losses, claims, damages, judgments, settlement costs, expenses, costs, or any Commonly Controlled Entity other liability or liabilities of any nature whatsoever arising out of or in connection with the transactions contemplated hereby any manner relating to any Pension Plan, Welfare Plan or Benefit Plan (either solely including but not limited to employee benefit plans such as a result thereof foreign plans which are not subject to ERISA), that has been, or is, contributed to by any entity, whether or not incorporated, which is deemed to be under common control (as a result of such transactions defined in conjunction with any other event) will be an "excess parachute payment" within the meaning of Section 280G 414 of the Code.
(i) Except as indicated on Schedule 4.12(i), at no time since December 31, 1990, have with the Company or any Commonly Controlled Entity, been required to contribute to, or incurred any withdrawal liability, within the meaning of Section 4201 of ERISA to any multiemployer pension plan, within the meaning of Section 3(37) of ERISA. All required contributions, withdrawal liability payments or other payments of any type that the Company or any Commonly Controlled Entity have been obligated to make to any multiemployer plan have been duly and timely made. Any withdrawal liability incurred with respect to any multiemployer plan has been fully paid as of the date hereof. Neither the Company nor any Commonly Controlled Entity has undertaken any course of action that could reasonably can be expected to lead to a complete or partial withdrawal from any multiemployer plan that would reasonably be expected to result in a withdrawal liability that would have a Material Adverse Effect. Set forth next to each multiemployer plan listed on Schedule 4.12(i) is the amount of the withdrawal liability that would be incurred by the Company or any Commonly Controlled Entity with respect to such plan, under Section 4201 of ERISA, if the Company or any Commonly Controlled Entity were to completely withdraw from such multiemployer plan on the date hereof.
(j) Except as listed on Schedule 4.12(j), neither the Company nor any Commonly Controlled Entity has any secondary liability resulting from a transaction described in ERISA Section 4204 that would, if the Company or Commonly Controlled Entity were to become primarily liable, reasonably be likely to have a Material Adverse EffectEffect on the Company, except to the extent they relate to benefits payable in the ordinary course.
(k11) Except as disclosed in the SEC Documents or in Schedule 5.6(d), there exist no employment, consulting, severance, termination or indemnification agreements, arrangements or understandings between either The Company has not violated any of the Company or any Subsidiary and any current or former officer or director of either health care continuation coverage requirements of the Company or any Subsidiary or for which either Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") applicable to its employees prior to the Effective Time ----- of the Company or any Subsidiary is liableMerger.
Appears in 1 contract
Samples: Merger Agreement (Sm&a Corp)
