Benefit Plans; ERISA. (a) Section 4.16(a) of the Company Disclosure Schedule lists all written (i) Employee Benefit Plans, (ii) employment agreements, including, but not limited to, any individual benefit arrangement, policy or practice with respect to any current or former employee or director of the Company or any ERISA Affiliate, and (iii) other employee benefit, bonus or other incentive compensation, stock option, stock purchase, stock appreciation, severance pay, lay-off or reduction in force, change in control, sick pay, vacation pay, salary continuation, retainer, leave of absence, educational assistance, service award, employee discount, fringe benefit plans, arrangements, policies or practices, whether legally binding or not, and including a specific identification of those which contain severance pay or change of control provisions or pending change of control provisions, which the Company or any ERISA Affiliate maintains, contributes to or has any obligation to or liability for (collectively, the “Plans”). Except as set forth on Section 4.16(a) of the Company Disclosure Schedule, the Company is not party to any agreements regarding the payment of severance. (b) None of the Plans is a Defined Benefit Plan, and neither the Company nor any ERISA Affiliate has ever sponsored, maintained or contributed to, or ever been obligated to contribute to, a Defined Benefit Plan. (c) None of the Plans is a Multiemployer Plan, and neither the Company nor any ERISA Affiliate has ever contributed to, or ever been obligated to contribute to, a Multiemployer Plan. (d) The Company does not maintain or contribute to any welfare benefit plan that provides health benefits to an employee after the employee’s termination of employment or retirement except as required under Section 4980B of the Code and Sections 601 through 608 of ERISA or similar applicable state law. (e) Each Plan that is an Employee Benefit Plan is in material compliance with its terms and in operation with the requirements provided by any and all statutes, orders or governmental rules or regulations currently in effect and applicable to the Plan, including but not limited to ERISA and the Code. (f) All reports, forms and other documents required to be filed with any Governmental Body or furnished to employees with respect to any Plan (including without limitation, summary plan descriptions, Forms 5500 and summary annual reports) have been timely filed or furnished and are materially accurate. (g) Each Plan intended to qualify under Section 401(a) of the Code is the subject of a favorable determination letter (or opinion letter, if applicable) issued by the Internal Revenue Service that provides that it so qualifies through the last day of the “TRA 86 Remedial Amendment Period,” as such term is defined in Section 3.02 of Revenue Procedure 96-55 issued by the Internal Revenue Service and that its related trust is exempt from taxation under Section 501 of the Code or there is time remaining to apply for such determination letter under Section 401(b) of the Code and the Internal Revenue Service pronouncements thereunder. Nothing has occurred since the date of the Internal Revenue Service’s favorable determination letter that could adversely affect the qualification of such Plan or the tax exempt status of its related trust. (h) All contributions for all periods ending prior to the Closing (including periods from the first day of the current plan year to the Closing) have been made prior to the Closing by the Company or the applicable ERISA Affiliate, except contributions for the payroll periods ending during the month in which the Closing occurs. (i) All insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to the Plans for coverage months ending on or before the Closing. (j) With respect to each Plan: (i) no prohibited transactions (as defined in Section 406 or 407 of ERISA or Section 4975 of the Code) have occurred for which a statutory exemption is not available; (ii) no action or claims (other than routine claims for benefits made in the ordinary course of Plan administration for which Plan administrative review procedures have not been exhausted) are pending, or to the Company’s knowledge, threatened or imminent against or with respect to the Plan, any employer who is participating (or who has participated) in any Plan or any fiduciary (as defined in Section 3(21) of ERISA) of the Plan which would have a Company Material Adverse Effect; (iii) neither the Company nor, to the Company’s knowledge, any fiduciary has any knowledge of any facts which could give rise to any such action or claim; and (iv) it provides that it may be amended or terminated at any time and, except for benefits protected under Section 411(d) of the Code and benefits to be provided in connection with termination of employment under contract or plan terms, all benefits payable to current, terminated employees or any beneficiary may be amended or terminated by the Company at any time without liability. (v) there are no audits, inquiries, investigations, or proceedings pending or, to the knowledge of the Company or any ERISA Affiliate, threatened by any Governmental Body with respect to any Plan. (k) Neither the Company nor any ERISA Affiliate has any liability or is threatened with any liability (whether joint or several) (i) for any excise tax imposed by Sections 4971, 4975, 4976, 4977 or 4979 of the Code, or (ii) for a fine under Section 502 of ERISA. (l) All of the Plans listed in the Company Disclosure Schedule, to the extent applicable, are in compliance with the continuation of group health coverage provisions contained in Section 4980B of the Code and Sections 601 through 608 of ERISA. (m) True, correct and complete copies of all documents creating or evidencing any Plan listed in the Company Disclosure Schedule including (without limitation) (i) all amendments thereto and all related trust documents, administrative service agreements, group annuity contracts, group insurance contracts, and policies pertaining to fiduciary liability insurance covering the fiduciaries for each Plan; (ii) all IRS determination, opinion, notification and advisory letters, and all applications and correspondence to or from the IRS or the DOL with respect to any such application or letter; (iii) all written communications to any Employee or Employees relating to any Plan and any proposed 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 Company received by Employees in the last two (2) years; (iv) all correspondence to or from any governmental agency relating to any Plan since January 1, 2000; (v) all COBRA forms and related notices provided since January 1, 2000 (or such forms and notices as required under comparable law); (vi) nondiscrimination test reports for each applicable Plan for the last three (3) years; (vii) all registration statements, annual reports (Form 11-K and all attachments thereto) and prospectuses prepared in connection with each Plan for the last three (3) years; and (viii) all reports, forms and other documents required to be filed with any Governmental Body in the last two (2) years (including, without limitation, summary plan descriptions, Forms 5500 and summary annual reports for all plans subject to ERISA) have been delivered to Acquiror. There are no negotiations, demands or proposals which are pending or have been made which concern matters now covered, or that would be covered, by the type of agreements listed in the Company Disclosure Schedule. (n) All expenses and liabilities relating to all of the Plans described in the Company Disclosure Schedule have been, and will on the Closing be fully and properly accrued on the Company’s books and records and disclosed in accordance with GAAP and in Plan financial statements. (o) Neither the Company nor any ERISA Affiliate has, prior to the Effective Time and in any material respect, violated any of the health care continuation requirements of COBRA, the requirements of FMLA, the requirements of the Health Insurance Portability and Accountability Act of 1996, the requirements of the Women’s Health and Cancer Rights Act of 1998, the requirements of the Newborns’ and Mothers’ Health Protection Act of 1996, or any amendment to each such act, or any similar provisions of state law applicable to its employees. (p) Set forth on Section 4.16(p) of the Company Disclosure Schedule is a list of all employees of the Company as of the date of the Agreement. Section 4.16(p) of the Company Disclosure Schedule also contains, with respect to each such employee: (i) the employee’s base salary, whether such employee is a bonus or commission employee, an approximate calculation of any bonus payable to such employee as of the date of this Agreement, and any commission schedule applicable to such employee; (ii) accrued paid time off payable to such employee as of January 27, 2003; and (iii) any severance that would be due upon termination with or without cause of such employee. Copies of all loans and commission plans have been made available to Acquiror.
Appears in 1 contract
Samples: Merger Agreement (Bea Systems Inc)
Benefit Plans; ERISA. (a) Section 4.16(a) 4.16 of the Company Disclosure Schedule lists all written (i) all Employee Benefit Plans, (ii) all employment agreements, including, but not limited to, any individual benefit arrangement, policy or practice with respect to any current or former employee or director of the Company or any ERISA Affiliate, and (iii) all other employee benefit, bonus or other incentive compensation, stock option, stock purchase, stock appreciation, severance pay, lay-off or reduction in force, change in control, sick pay, vacation pay, salary continuation, retainer, leave of absence, educational assistance, service award, employee discount, fringe benefit plans, arrangements, policies or practices, whether legally binding or not, and including a specific identification of those which contain severance pay or change of control provisions or pending change of control provisions, which the Company or any ERISA Affiliate maintains, contributes to or has any obligation to or liability for (collectively, the “"Plans”"). Except as set forth on Section 4.16(a) of the Company Disclosure Schedule, the Company is not party to any agreements regarding the payment of severance.
(b) None of the Plans is a Defined Benefit Plan, and neither the Company nor any ERISA Affiliate has ever sponsored, maintained or contributed to, or ever been obligated to contribute to, a Defined Benefit Plan.
(c) None of the Plans is a Multiemployer Plan, and neither the Company nor any ERISA Affiliate has ever contributed to, or ever been obligated to contribute to, a Multiemployer Plan.
(d) The Company does not maintain or contribute to any welfare benefit plan that provides health benefits to an employee after the employee’s 's termination of employment or retirement except as required under Section 4980B of the Code and Sections 601 through 608 of ERISA or similar applicable state lawERISA.
(e) Each Plan that is an Employee Benefit Plan is in material compliance with complies by its terms and in operation with the requirements provided by any and all statutes, orders or governmental rules or regulations currently in effect and applicable to the Plan, including but not limited to ERISA and the Code.
(f) All reports, forms and other documents required to be filed with any Governmental Body or furnished to employees with respect to any Plan (including without limitation, summary plan descriptions, Forms 5500 and summary annual reports) have been timely filed or furnished and are materially accurate.
(g) Each Plan intended to qualify under Section 401(a) of the Code is the subject of a favorable determination letter (or opinion letter, if applicable) issued by the Internal Revenue Service that provides that it so qualifies through the last day of the “"TRA 86 Remedial Amendment Period,” " as such term is defined in Section 3.02 of Revenue Procedure 96-55 issued by the Internal Revenue Service and that its related trust is exempt from taxation under Section 501 of the Code or there is time remaining to apply for such determination letter under Section 401(b) of Code. To the Code and the Internal Revenue Service pronouncements thereunder. Nothing Company's Knowledge, nothing has occurred since the date of the Internal Revenue Service’s 's favorable determination letter that could adversely affect the qualification of such Plan or the tax exempt status of its related trust.
(h) All contributions for all periods ending prior to the Closing (including periods from the first day of the current plan year to the Closing) have been made prior to the Closing by the Company or in accordance with past practice and the recommended contribution in any applicable ERISA Affiliate, except contributions for the payroll periods ending during the month in which the Closing occursactuarial report.
(i) All insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to the Plans for coverage months plan years ending on or before the Closing.
(j) With respect to each Plan:
(i) no prohibited transactions (as defined in Section 406 or 407 of ERISA or Section 4975 of the Code) have occurred for which a statutory exemption is not available;
(ii) no action or claims (other than routine claims for benefits made in the ordinary course of Plan administration for which Plan administrative review procedures have not been exhausted) are pending, or to the Company’s knowledge, threatened or imminent against or with respect to the Plan, any employer who is participating (or who has participated) in any Plan or any fiduciary (as defined in Section 3(21) of ERISA) of the Plan which would have a Company Material Adverse EffectPlan;
(iii) neither the Company nor, to the Company’s knowledge, nor any fiduciary has any knowledge Knowledge of any facts which could give rise to any such action or claim; and
(iv) it provides that it may be amended or terminated at any time and, except for benefits protected under Section 411(d) of the Code and benefits to be provided in connection with termination of employment under contract or plan termsCode, all benefits payable to current, terminated employees or any beneficiary may be amended or terminated by the Company at any time without liability.
(v) there are no audits, inquiries, investigations, or proceedings pending or, to the knowledge of the Company or any ERISA Affiliate, threatened by any Governmental Body with respect to any Plan.
(k) Neither the Company nor any ERISA Affiliate has any liability or is threatened with any liability (whether joint or several) (i) for any excise tax imposed by Sections 4971, 4975, 4976, 4977 or 4979 of the Code, or (ii) for to a fine under Section 502 of ERISA.
(l) All of the Plans listed in the Company Disclosure Schedule, to the extent applicable, are in compliance with the continuation of group health coverage provisions contained in Section 4980B of the Code and Sections 601 through 608 of ERISA.
(m) True, correct and complete copies of all documents creating or evidencing any Plan listed in the Company Disclosure Schedule including (without limitation) (i) all amendments thereto and all related trust documents, administrative service agreements, group annuity contracts, group insurance contractshave been delivered to Acquiror, and policies pertaining to fiduciary liability insurance covering the fiduciaries for each Plan; (ii) all IRS determinationtrue, opinion, notification correct and advisory letters, and all applications and correspondence to or from the IRS or the DOL with respect to any such application or letter; (iii) all written communications to any Employee or Employees relating to any Plan and any proposed Plans, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration complete copies of payments or vesting schedules or other events which would result in any material liability to the Company received by Employees in the last two (2) years; (iv) all correspondence to or from any governmental agency relating to any Plan since January 1, 2000; (v) all COBRA forms and related notices provided since January 1, 2000 (or such forms and notices as required under comparable law); (vi) nondiscrimination test reports for each applicable Plan for the last three (3) years; (vii) all registration statements, annual reports (Form 11-K and all attachments thereto) and prospectuses prepared in connection with each Plan for the last three (3) years; and (viii) all reports, forms and other documents required to be filed with any Governmental Body in the last two (2) years governmental entity (including, without limitation, summary plan descriptions, Forms 5500 and summary annual reports for all plans subject to ERISA) have been delivered to Acquiror. There are no negotiations, demands or proposals which are pending or have been made which concern matters now covered, or that would be covered, by the type of agreements listed in the Company Disclosure Schedule.
(n) All expenses and liabilities relating to all of the Plans described in the Company Disclosure Schedule have been, and will on the Closing be fully and properly accrued on the Company’s 's books and records and disclosed in accordance with GAAP generally accepted accounting principles and in Plan financial statements.
(o) Neither the Company nor any ERISA Affiliate has, prior to the Effective Time and in any material respect, violated any of the health care continuation requirements of COBRA, the requirements of FMLA, the requirements of the Health Insurance Portability and Accountability Act of 1996, the requirements of the Women’s Health and Cancer Rights Act of 1998, the requirements of the Newborns’ and Mothers’ Health Protection Act of 1996, or any amendment to each such act, or any similar provisions of state law applicable to its employees.
(p) Set forth on Section 4.16(p) of the Company Disclosure Schedule is a list of all employees of the Company as of the date of the Agreement. Section 4.16(p) of the Company Disclosure Schedule also contains, with respect to each such employee: (i) the employee’s base salary, whether such employee is a bonus or commission employee, an approximate calculation of any bonus payable to such employee as of the date of this Agreement, and any commission schedule applicable to such employee; (ii) accrued paid time off payable to such employee as of January 27, 2003; and (iii) any severance that would be due upon termination with or without cause of such employee. Copies of all loans and commission plans have been made available to Acquiror.
Appears in 1 contract
Benefit Plans; ERISA. (a) Section 4.16(a) Part 5.24 of the Company Disclosure Schedule lists all written (i) Employee Benefit Plansall "employee benefit plans" within the meaning of Section 3(3) of ERISA, (ii) all employment agreements, including, but not limited to, any individual benefit arrangement, policy or practice with respect to any current or former employee or director of the Company Company, the Subsidiary or any ERISA AffiliateMember of the Controlled Group, and (iii) all other employee benefit, bonus or other incentive compensation, stock option, stock purchase, stock appreciation, severance pay, lay-off or reduction in force, change in control, sick pay, vacation pay, salary continuation, retainer, leave of absence, educational assistance, service award, employee discount, fringe benefit plans, arrangements, policies or practices, whether legally binding or not, and including a specific identification of those which contain severance pay or change of control provisions or pending change of control provisions, which the Company or any ERISA Affiliate the Subsidiary maintains, contributes to or has any obligation to or liability for (collectively, the “"Plans”"). Except as set forth on Section 4.16(a) of the Company Disclosure Schedule, the Company is not party to any agreements regarding the payment of severance.
(b) None of the Plans is a Defined Benefit Plan, and neither the Company nor Company, the Subsidiary nor, to the knowledge of the Company, any ERISA Affiliate Member of the Controlled Group has ever sponsored, maintained or contributed to, or ever been obligated to contribute to, a Defined Benefit PlanPlan that could reasonably be expected to result in a material amount of liability under Title IV of ERISA.
(c) None of the Plans is a Multiemployer Plan, and neither the Company nor Company, the Subsidiary nor, to the knowledge of the Company, any ERISA Affiliate Member of the Controlled Group has ever contributed to, or ever been obligated to contribute to, a Multiemployer PlanPlan that could reasonably be expected to result in a material amount of liability under Title IV of ERISA.
(d) The Neither the Company does not maintain nor the Subsidiary maintains or contribute contributes to any welfare benefit plan that which provides or promises health benefits to an employee after the employee’s 's termination of employment or retirement except as required under Section 4980B of the Code and Sections 601 through 608 of ERISA or similar applicable state lawERISA.
(e) Each Plan that is an Employee Benefit Plan is "employee benefit plan," as defined in Section 3(3) of ERISA, complies in all material compliance with respects by its terms and in operation with the requirements provided by any and all statutes, orders or governmental rules or regulations currently in effect and applicable to the Plan, including but not limited to ERISA and the Code.
(f) All To the knowledge of the Company, all reports, forms and other documents required to be filed with any Governmental Body or furnished to employees government entity with respect to any Plan (including including, without limitation, summary plan descriptions, Forms 5500 and summary annual reports) have been timely filed or furnished and are materially accurate.
(g) Each Plan intended to qualify under Section 401(a) of the Code is the subject of a favorable determination letter (or opinion letter, if applicable) issued by the Internal Revenue Service that provides that it so qualifies through Service. To the last day of the “TRA 86 Remedial Amendment Period,” as such term is defined in Section 3.02 of Revenue Procedure 96-55 issued by the Internal Revenue Service and that its related trust is exempt from taxation under Section 501 of the Code or there is time remaining to apply for such determination letter under Section 401(b) of the Code and the Internal Revenue Service pronouncements thereunder. Nothing Company's knowledge, nothing has occurred since the date of the Internal Revenue Service’s 's favorable determination letter that could adversely affect the qualification of such Plan or the tax exempt status of its related trustPlan.
(h) All contributions owed for all periods ending prior to the Closing Date (including periods from the first day of the current plan year to the ClosingClosing Date) under any Plan have been or will be made prior to the Closing Date by the Company or the applicable ERISA Affiliate, except contributions for the payroll periods ending during the month in which the Closing occursCompany.
(i) All insurance premiums have been paid in full, subject only to normal retrospective adjustments in To the ordinary courseknowledge of the Company, with regard to the Plans for coverage months ending on or before the Closing.
(j) With respect to each Plan:
(i) no prohibited transactions (as defined in Section 406 or 407 of ERISA or Section 4975 of the Code) have occurred for which a statutory an exemption is not availableavailable that could reasonably be expected to result in a material amount of liability to the Company or the Subsidiary;
(ii) no action actions or claims (other than routine claims for benefits made in the ordinary course of Plan administration for which Plan administrative review procedures have not been exhausted) are pending, or to the Company’s knowledge, threatened or imminent imminent, against or with respect to the Plan, any employer who is participating (or who has participated) in any the Plan or any fiduciary (as defined in Section 3(21) of ERISA) of the Plan which would have that could reasonably be expected to result in a Company Material Adverse Effect;
(iii) neither material amount of liability to the Company nor, to or the Company’s knowledge, any fiduciary has any knowledge of any Subsidiary and no facts exist which could give rise to any such action or claim; and
(iviii) it except as set forth in Part 5.24(i)(iii) of the Company Disclosure Schedule, the Plan provides that it may be amended or terminated at any time and, except for benefits protected under Section 411(d) of the Code and benefits to be provided in connection with termination of employment under contract or plan termsCode, all benefits payable to current, terminated current or former employees or any beneficiary may be amended or terminated by the Company at any time without a material amount of liability.
(vj) there are no auditsNone of the Company, inquiries, investigations, the Subsidiary or proceedings pending any Member of the Controlled Group has any Plan-related liability or, to the knowledge of the Company or any ERISA AffiliateCompany, threatened by any Governmental Body with respect to any Plan.
(k) Neither the Company nor any ERISA Affiliate has any liability or is threatened with any such liability (whether joint or several) (i) for any excise tax imposed by Sections Section 4971, 4975, 4976, 4977 or 4979 of the Code, or (ii) for a fine under Section 502 of ERISA, which excise tax or fine could reasonably be expected to result in a material amount of liability to the Company or the Subsidiary.
(lk) All To the knowledge of the Company, all the "group health plans" (as defined in Section 607(1) or 733(a)(1) of ERISA or Section 4980B(g)(2) of the Code) that are part of the Plans listed in the Company Disclosure Schedule, to the extent applicable, Schedule are in material compliance with the continuation of group health coverage provisions contained in Section 4980B of the Code and Sections 601 through 608 of ERISA.
(ml) True, correct and complete copies Copies of all documents creating or evidencing any Plan listed in the Company Disclosure Schedule including (without limitation) (i) all amendments thereto and all related trust documents, administrative service agreements, group annuity contracts, group insurance contracts, and policies pertaining to fiduciary liability insurance covering the fiduciaries for each Plan; (ii) all IRS determination, opinion, notification and advisory letters, and all applications and correspondence to or from the IRS or the DOL with respect to any such application or letter; (iii) all written communications to any Employee or Employees relating to any Plan and any proposed 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 Company received by Employees in the last two (2) years; (iv) all correspondence to or from any governmental agency relating to any Plan since January 1, 2000; (v) all COBRA forms and related notices provided since January 1, 2000 (or such forms and notices as required under comparable law); (vi) nondiscrimination test reports for each applicable Plan for the last three (3) years; (vii) all registration statements, annual reports (Form 11-K and all attachments thereto) and prospectuses prepared in connection with each Plan for the last three (3) years; and (viii) all reports, forms and other documents required to be filed with any Governmental Body in the last two (2) years governmental entity (including, without limitation, summary plan descriptions, Forms 5500 and summary annual reports for all plans subject to ERISA) ), have been delivered or made available to AcquirorPurchaser. There To the knowledge of the Company, there are no negotiations, demands or proposals which are pending or have been made which concern matters now covered, or that would be covered, by the type of agreements listed in the Company Disclosure Scheduleany Plan.
(nm) All expenses and liabilities relating to all contributions required by law and by the terms of the Plans described in the Company Disclosure Schedule have been, and will on the Closing be Date will be, fully and properly accrued on the Company’s 's books and records and disclosed in accordance with GAAP and in Plan financial statements.
(o) Neither the Company nor any ERISA Affiliate has, prior to the Effective Time and in any material respect, violated any of the health care continuation requirements of COBRA, the requirements of FMLA, the requirements of the Health Insurance Portability and Accountability Act of 1996, the requirements of the Women’s Health and Cancer Rights Act of 1998, the requirements of the Newborns’ and Mothers’ Health Protection Act of 1996GAAP, or any amendment to each such act, or any similar provisions of state law applicable to its employeesother generally accepted accounting principles.
(p) Set forth on Section 4.16(p) of the Company Disclosure Schedule is a list of all employees of the Company as of the date of the Agreement. Section 4.16(p) of the Company Disclosure Schedule also contains, with respect to each such employee: (i) the employee’s base salary, whether such employee is a bonus or commission employee, an approximate calculation of any bonus payable to such employee as of the date of this Agreement, and any commission schedule applicable to such employee; (ii) accrued paid time off payable to such employee as of January 27, 2003; and (iii) any severance that would be due upon termination with or without cause of such employee. Copies of all loans and commission plans have been made available to Acquiror.
Appears in 1 contract
Samples: Merger Agreement (Beyond Com Corp)
Benefit Plans; ERISA. (a) Section 4.16(a) 3.17 of the Company Disclosure Schedule lists all written (i) all Employee Benefit Plans, (ii) all employment agreements, including, but not limited to, any individual benefit arrangement, policy or practice with respect to any current or former employee or director of the Company or any ERISA Affiliate, and (iii) all other material employee benefit, bonus or other incentive compensation, stock option, stock purchase, stock appreciation, severance pay, lay-off or reduction in force, change in control, sick pay, vacation pay, salary continuation, retainer, leave of absence, educational assistance, service award, employee discount, fringe benefit plans, arrangements, policies or practices, whether legally binding or not, and including a specific identification of those which contain severance pay or change of control provisions or pending change of control provisions, practices which the Company or any ERISA Affiliate maintains, contributes to or has any obligation to or liability for (collectively, the “Plans”). Except as set forth on Section 4.16(a) of the Company Disclosure Schedule, the Company is not party to any agreements regarding the payment of severance.
(b) None of the Plans is a Defined Benefit Plan, and neither the Company nor any ERISA Affiliate has ever sponsored, maintained or contributed to, or ever been obligated to contribute to, a Defined Benefit Plan.
(c) None of the Plans is a Multiemployer Plan, and neither the Company nor any ERISA Affiliate has ever contributed to, or ever been obligated to contribute to, a Multiemployer Plan.
(d) The Company does not maintain or contribute to any welfare benefit plan that provides health benefits to an employee after the employee’s termination of employment or retirement except as required under Section 4980B of the Code and Sections 601 through 608 of ERISA or similar applicable state law.
(e) Each Plan that is an Employee Benefit Plan is complies in all material compliance with respects by its terms and in operation with the requirements provided by any and all statutes, orders or governmental rules or regulations currently in effect and applicable to the Plan, including but not limited to ERISA and the Code.
(f) All Except as would not result in a Material Adverse Effect, all reports, forms and other documents required to be filed with any Governmental Body or furnished to employees with respect to any Plan (including without limitation, summary plan descriptions, Forms 5500 and summary annual reports) have been timely filed or furnished and are materially accurate.
(g) Each Plan None of the Plans is intended to qualify under Section 401(a) of the Code is the subject of a favorable determination letter (or opinion letter, if applicable) issued by the Internal Revenue Service that provides that it so qualifies through the last day of the “TRA 86 Remedial Amendment Period,” as such term is defined in Section 3.02 of Revenue Procedure 96-55 issued by the Internal Revenue Service and that its related trust is exempt from taxation under Section 501 of the Code or there is time remaining to apply for such determination letter under Section 401(b) of the Code and the Internal Revenue Service pronouncements thereunder. Nothing has occurred since the date of the Internal Revenue Service’s favorable determination letter that could adversely affect the qualification of such Plan or the tax exempt status of its related trustCode.
(h) All contributions for all periods ending prior to the Closing (including periods from the first day of the current plan year to the Closing) have been made prior to the Closing by the Company or the applicable ERISA Affiliate, except contributions for the payroll periods ending during the month in which the Closing occurs.
(i) All insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to the Plans for coverage months ending on or before the Closing.
(ji) With respect to each Plan:
(i) no prohibited transactions (as defined in Section 406 or 407 of ERISA or Section 4975 of the Code) have occurred for which a statutory exemption is not available;
(ii) no action or claims (other than routine claims for benefits made in the ordinary course of Plan administration for which Plan administrative review procedures have not been exhausted) are pending, or or, to the knowledge of the Company’s knowledge, threatened or imminent against or with respect to the Plan, any employer who is participating (or who has participated) in any Plan or any fiduciary (as defined in Section 3(21) of ERISA) of the Plan which would have a Company Material Adverse EffectEffect on the Company;
(iiiii) neither the Company nor, to the Company’s knowledge, nor any fiduciary has any knowledge of any facts which could give rise to any such action or claim; and
(iv) it provides that it may be amended or terminated at any time and, except for benefits protected under Section 411(d) of the Code and benefits to be provided in connection with termination of employment under contract or plan terms, all benefits payable to current, terminated employees or any beneficiary may be amended or terminated by the Company at any time without liability.
(viii) there are no audits, inquiries, investigations, or proceedings pending or, to the knowledge of the Company or any ERISA Affiliate, threatened by any Governmental Body with respect to any Plan.
(k) Neither the Company nor any ERISA Affiliate has any liability or is threatened with any liability (whether joint or several) (i) for any excise tax imposed by Sections 4971, 4975, 4976, 4977 or 4979 of the Code, or (ii) for a fine under Section 502 of ERISA.
(lj) All of the Plans listed in the Company Disclosure Schedule, to the extent applicable, are in compliance in all material respects with the continuation of group health coverage provisions contained in Section 4980B Sections 1366.20 through 1366.28 of the Code California Health and Sections 601 through 608 of ERISASafety Code.
(mk) True, correct and complete copies of all documents creating or evidencing any Plan listed in the Company Disclosure Schedule including (without limitation) (i) all amendments thereto and all related trust documents, administrative service agreements, group annuity contracts, group insurance contracts, and policies pertaining to fiduciary liability insurance covering the fiduciaries for each Plan; (ii) all IRS determination, opinion, notification and advisory letters, and all applications and material correspondence to or from the IRS or the DOL with respect to any such application or letter; (iii) all written communications to any Employee or Employees relating to any Plan and any proposed 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 Company received by Employees in the last two (2) yearsCompany; (iv) all material correspondence to or from any governmental agency Governmental Body relating to any Plan since January 1, 2000Plan; (v) all COBRA forms and related notices provided since January 1, 2000 (or such forms and notices as required under comparable law); (vi) nondiscrimination test reports for each applicable Plan for the last three (3) yearsPlan; (vii) all registration statements, annual reports (Form 11-K and all attachments thereto) and prospectuses prepared in connection with each Plan for the last three (3) yearsPlan; and (viii) all reports, forms and other documents required to be filed with any Governmental Body in the last two (2) years (including, without limitation, summary plan descriptions, Forms 5500 and summary annual reports for all plans subject to ERISA) have been delivered made available to Acquirorthe Buyer. There are no negotiations, demands or proposals proposals, which are pending or have been made which concern matters now covered, or that would be covered, by the type of agreements listed in the Company Disclosure Schedule.
(nl) All expenses and liabilities relating to all of the Plans described in the Company Disclosure Schedule have been, and will on the Closing be fully and properly accrued on the Company’s books and records and disclosed in accordance with GAAP and in Plan financial statements.
(o) Neither the Company nor any ERISA Affiliate has, prior to the Effective Time and in any material respect, violated any of the health care continuation requirements of COBRA, the requirements of FMLA, the requirements of the Health Insurance Portability and Accountability Act of 1996, the requirements of the Women’s Health and Cancer Rights Act of 1998, the requirements of the Newborns’ and Mothers’ Health Protection Act of 1996, or any amendment to each such act, or any similar provisions of state law applicable to its employees.
(p) Set forth on Section 4.16(p) of the Company Disclosure Schedule is a list of all employees of the Company as of the date of the Agreement. Section 4.16(p) of the Company Disclosure Schedule also contains, with respect to each such employee: (i) the employee’s base salary, whether such employee is a bonus or commission employee, an approximate calculation of any bonus payable to such employee as of the date of this Agreement, and any commission schedule applicable to such employee; (ii) accrued paid time off payable to such employee as of January 27, 2003; and (iii) any severance that would be due upon termination with or without cause of such employee. Copies of all loans and commission plans have been made available to Acquiror.
Appears in 1 contract
Benefit Plans; ERISA. (a) Section 4.16(a) 3.15 of the Company Disclosure Schedule lists all written (i) all Employee Benefit Plans, (ii) all employment agreements, including, but not limited to, any individual benefit arrangement, policy or practice with respect to any current or former employee or director of the Company or any ERISA Affiliate, and (iii) all other employee benefit, bonus or other incentive compensation, stock option, stock purchase, stock appreciation, severance pay, lay-off or reduction in force, change in control, sick pay, vacation pay, salary continuation, retainer, leave of absence, educational assistance, service award, employee discount, fringe benefit plans, arrangements, policies or practices, whether legally binding or not, and including a specific identification of those which contain severance pay or change of control provisions or pending change of control provisions, which the Company or any ERISA Affiliate maintains, contributes to or has any obligation to or liability for (collectively, the “"Plans”"). Except as set forth on Section 4.16(a) of the Company Disclosure Schedule, the Company is not party to any agreements regarding the payment of severance.
(b) None of the Plans is a Defined Benefit Plan, and neither the Company nor any ERISA Affiliate has ever sponsored, maintained or contributed to, or ever been obligated to contribute to, a Defined Benefit Plan.
(c) None of the Plans is a Multiemployer Plan, and neither the Company nor any ERISA Affiliate has ever contributed to, or ever been obligated to contribute to, a Multiemployer Plan.
(d) The Company does not maintain or contribute to any welfare benefit plan that provides health benefits to an employee after the employee’s 's termination of employment or retirement except as required under Section 4980B of the Code and Sections 601 through 608 of ERISA or similar applicable state lawERISA.
(e) Each Plan that is an Employee Benefit Plan is in material compliance with complies by its terms and in operation with the requirements provided by any and all statutes, orders or governmental rules or regulations currently in effect and applicable to the Plan, including but not limited to ERISA and the Code.
(f) All reports, forms and other documents required to be filed with any Governmental Body or furnished to employees with respect to any Plan (including without limitation, summary plan descriptions, Forms 5500 and summary annual reports) have been timely filed or furnished and are materially accurate.
(g) Each Plan intended to qualify under Section 401(a) of the Code is the subject of a favorable determination letter (or opinion letter, if applicable) issued by the Internal Revenue Service that provides that it so qualifies through the last day of the “"TRA 86 Remedial Amendment Period,” " as such term is defined in Section 3.02 of Revenue Procedure 96-55 issued by the Internal Revenue Service and that its related trust is exempt from taxation under Section 501 of the Code or there is time remaining to apply for such determination letter under Section 401(b) of Code. To the Code and the Internal Revenue Service pronouncements thereunder. Nothing Company's Knowledge, nothing has occurred since the date of the Internal Revenue Service’s 's favorable determination letter that could adversely affect the qualification of such Plan or the tax exempt status of its related trust.
(h) All contributions for all periods ending prior to the Closing (including periods from the first day of the current plan year to the Closing) have been made prior to the Closing by the Company or in accordance with past practice and the recommended contribution in any applicable ERISA Affiliate, except contributions for the payroll periods ending during the month in which the Closing occursactuarial report.
(i) All insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to the Plans for coverage months plan years ending on or before the Closing.
(j) With respect to each Plan:
(i) no prohibited transactions (as defined in Section 406 or 407 of ERISA or Section 4975 of the Code) have occurred for which a statutory exemption is not available;
(ii) no action or claims (other than routine claims for benefits made in the ordinary course of Plan administration for which Plan administrative review procedures have not been exhausted) are pending, or to the Company’s knowledge, threatened or imminent against or with respect to the Plan, any employer who is participating (or who has participated) in any Plan or any fiduciary (as defined in Section 3(21) of ERISA) of the Plan which would have a Company Material Adverse EffectPlan;
(iii) neither the Company nor, to the Company’s knowledge, nor any fiduciary has any knowledge Knowledge of any facts which could give rise to any such action or claim; and
(iv) it provides that it may be amended or terminated at any time and, except for benefits protected under Section 411(d) of the Code and benefits to be provided in connection with termination of employment under contract or plan termsCode, all benefits payable to current, terminated employees or any beneficiary may be amended or terminated by the Company at any time without liability.
(v) there are no audits, inquiries, investigations, or proceedings pending or, to the knowledge of the Company or any ERISA Affiliate, threatened by any Governmental Body with respect to any Plan.
(k) Neither the Company nor any ERISA Affiliate has any liability or is threatened with any liability (whether joint or several) (i) for any excise tax imposed by Sections 4971, 4975, 4976, 4977 or 4979 of the Code, or (ii) for to a fine under Section 502 of ERISA.
(l) All of the Plans listed in the Company Disclosure Schedule, to the extent applicable, are in compliance with the continuation of group health coverage provisions contained in Section 4980B of the Code and Sections 601 through 608 of ERISA.
(m) True, correct and complete copies of all documents creating or evidencing any Plan listed in the Company Disclosure Schedule including (without limitation) (i) all amendments thereto and all related trust documents, administrative service agreements, group annuity contracts, group insurance contractshave been delivered to Coyote, and policies pertaining to fiduciary liability insurance covering the fiduciaries for each Plan; (ii) all IRS determinationtrue, opinion, notification correct and advisory letters, and all applications and correspondence to or from the IRS or the DOL with respect to any such application or letter; (iii) all written communications to any Employee or Employees relating to any Plan and any proposed Plans, in each case, relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration complete copies of payments or vesting schedules or other events which would result in any material liability to the Company received by Employees in the last two (2) years; (iv) all correspondence to or from any governmental agency relating to any Plan since January 1, 2000; (v) all COBRA forms and related notices provided since January 1, 2000 (or such forms and notices as required under comparable law); (vi) nondiscrimination test reports for each applicable Plan for the last three (3) years; (vii) all registration statements, annual reports (Form 11-K and all attachments thereto) and prospectuses prepared in connection with each Plan for the last three (3) years; and (viii) all reports, forms and other documents required to be filed with any Governmental Body in the last two (2) years governmental entity (including, without limitation, summary plan descriptions, Forms 5500 and summary annual reports for all plans subject to ERISA) have been delivered to AcquirorCoyote. There are no negotiations, demands or proposals which are pending or have been made which concern matters now covered, or that would be covered, by the type of agreements listed in the Company Disclosure Schedule.
(n) All expenses and liabilities relating to all of the Plans described in the Company Disclosure Schedule have been, and will on the Closing be fully and properly accrued on the Company’s 's books and records and disclosed in accordance with GAAP generally accepted accounting principles and in Plan financial statements.
(o) Neither the Company nor any ERISA Affiliate has, prior to the Effective Time and in any material respect, violated any of the health care continuation requirements of COBRA, the requirements of FMLA, the requirements of the Health Insurance Portability and Accountability Act of 1996, the requirements of the Women’s Health and Cancer Rights Act of 1998, the requirements of the Newborns’ and Mothers’ Health Protection Act of 1996, or any amendment to each such act, or any similar provisions of state law applicable to its employees.
(p) Set forth on Section 4.16(p) of the Company Disclosure Schedule is a list of all employees of the Company as of the date of the Agreement. Section 4.16(p) of the Company Disclosure Schedule also contains, with respect to each such employee: (i) the employee’s base salary, whether such employee is a bonus or commission employee, an approximate calculation of any bonus payable to such employee as of the date of this Agreement, and any commission schedule applicable to such employee; (ii) accrued paid time off payable to such employee as of January 27, 2003; and (iii) any severance that would be due upon termination with or without cause of such employee. Copies of all loans and commission plans have been made available to Acquiror.
Appears in 1 contract
Benefit Plans; ERISA. (a) Section 4.16(a) of the Company Disclosure Schedule 3.25 lists all written (i) Employee Benefit Plansall “employee benefit plans” within the meaning of Section 3(3) of ERISA, (ii) all employment agreements and consultant agreements, including, but not limited to, any individual benefit arrangement, policy or practice with respect to any current or former employee employee, consultant or director of Tempus or Member of the Company or any ERISA AffiliateControlled Group, and (iii) all other employee benefit, bonus or other incentive compensation, stock option, stock purchase, stock appreciation, severance pay, lay-off or reduction in force, change in control, sick pay, vacation pay, salary continuation, retainer, leave of absence, educational assistance, service award, employee discount, fringe benefit plans, arrangements, policies or practices, whether legally binding or not, and including a specific identification of those which contain severance pay or change of control provisions or pending change of control provisions, which the Company Tempus or any ERISA Affiliate Member of the Controlled Group maintains, contributes to or has any obligation to or liability Liability for (collectively, the “Plans”). Except as set forth on Section 4.16(a) of the Company Disclosure Schedule, the Company is not party to any agreements regarding the payment of severance.
(b) None of the Plans is a Defined Benefit Pension Plan, and neither the Company Tempus nor any ERISA Affiliate Member of the Controlled Group has ever sponsored, maintained or contributed to, or ever been obligated to contribute to, a Defined Benefit Pension Plan.
(c) None of the Plans is a Multiemployer Plan, and neither the Company Tempus nor any ERISA Affiliate Member of the Controlled Group has ever contributed to, or ever been obligated to contribute to, a Multiemployer Plan.
(d) The Company Tempus does not maintain or contribute to any welfare benefit plan that which provides health benefits to an employee after the employee’s termination of employment or retirement except as required under Section 4980B of the Code and Sections 601 through 608 of ERISA or similar applicable state lawERISA.
(e) Each Plan that is an Employee Benefit Plan is in material compliance with complies by its terms and in operation with the requirements provided by any and all statutes, orders or governmental rules or regulations Legal Requirements currently in effect and applicable to the Plan, including but not limited to ERISA and the Code.
(f) All reports, forms and other documents required to be filed with any Governmental Body or furnished to employees with respect to any Plan (including including, without limitation, summary plan descriptions, Forms 5500 and summary annual reports) have been timely filed or furnished and are materially accurate.
(g) Each Plan intended to qualify under Section 401(a) of the Code is the subject of a favorable determination letter (or opinion letter, if applicable) issued by the Internal Revenue Service that provides that it so qualifies through the last day of the “TRA 86 Remedial Amendment Period,” as such term is defined in Section 3.02 of Revenue Procedure 96-55 issued by the Internal Revenue Service and that its related trust is exempt from taxation under Section 501 of the Code or there is time remaining to apply for such determination letter under Section 401(b) of the Code and the Internal Revenue Service pronouncements thereunderService. Nothing has occurred since the date of the Internal Revenue Service’s favorable determination letter that could adversely affect the qualification of such the Plan or the tax exempt status of and its related trust. Tempus and each Member of the Controlled Group have timely and properly applied for a written determination by the Internal Revenue Service on the qualification of each such Plan and its related trust under Section 401(a) of the Code, as amended by the Tax Reform Act of 1986 and subsequent legislation enacted through the date hereof, and Section 501 of the Code.
(h) All contributions owed for all periods ending prior to the Closing Date (including periods from the first day of the current plan year to the ClosingClosing Date) under any Plan have been or will be made prior to the Closing by Date in accordance with past practice and the Company or the recommended contribution in any applicable ERISA Affiliate, except contributions for the payroll periods ending during the month in which the Closing occursactuarial report.
(i) All insurance premiums have been paid in full, subject only to normal retrospective adjustments in the ordinary course, with regard to the Plans for coverage months plan years ending on or before the ClosingClosing Date.
(j) With respect to each Plan:
(i) no prohibited transactions (as defined in Section 406 or 407 of ERISA or Section 4975 of the Code) have occurred for which a statutory an exemption is not available;
(ii) no action or claims Claims (other than routine claims for benefits made in the ordinary course of Plan administration for which Plan administrative review procedures have not been exhausted) are pending, or or, to the Company’s knowledgeKnowledge of Tempus and each Shareholder, threatened or imminent against or with respect to the Plan, any employer who is participating (or who has participated) in any the Plan or any fiduciary (as defined in Section 3(21) of ERISA) of the Plan which would have a Company Material Adverse EffectPlan;
(iii) neither the Company norno Plan is, or to the Company’s knowledgeKnowledge of Tempus and each Shareholder, expected to be under audit or investigation by any fiduciary Governmental Body, and no such completed audit, if any, has any knowledge resulted in the imposition of any Tax or penalty;
(iv) to the Knowledge of Tempus and each Shareholder, no facts exist which could give rise to any such action action, claim, audit, or claiminvestigation; and
(ivv) it the Plan provides that it may be amended or terminated at any time and, except for benefits protected under Section 411(d) of the Code and benefits to be provided in connection with termination of employment under contract or plan termsCode, all benefits payable to currentcurrent or terminated employees, terminated employees consultants or any beneficiary may be amended or terminated by the Company Tempus at any time without liability.
(v) there are no audits, inquiries, investigations, or proceedings pending or, to the knowledge of the Company or any ERISA Affiliate, threatened by any Governmental Body with respect to any Plantime.
(k) Neither the Company Tempus nor any ERISA Affiliate Member of the Controlled Group has any liability Plan-related Liability or is threatened with any liability Liability (whether joint or several) (i) for any excise tax imposed by Sections Section 4971, 4975, 4976, 4977 or 4979 of the Code, or (ii) for a fine under Section 502 of ERISA.
(l) All the “group health plans” (as defined in Section 607(1) or 733(a)(1) of ERISA or Section 4980B(g)(2) of the Code) that are part of the Plans listed in the Company Disclosure Schedule, to the extent applicable, on Schedule 3.25 are in compliance with the continuation of group health coverage provisions contained in Section 4980B of the Code and Sections 601 through 608 of ERISAERISA and the data privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA).
(m) True, correct and complete copies Copies of all documents creating or evidencing any Plan listed in the Company Disclosure on Schedule including (without limitation) (i) all amendments thereto and all related trust documents, administrative service agreements, group annuity contracts, group insurance contracts3.25, and policies pertaining to fiduciary liability insurance covering the fiduciaries for each Plan; (ii) all IRS determination, opinion, notification and advisory letters, and all applications and correspondence to or from the IRS or the DOL with respect to any such application or letter; (iii) all written communications to any Employee or Employees relating to any Plan and any proposed 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 Company received by Employees in the last two (2) years; (iv) all correspondence to or from any governmental agency relating to any Plan since January 1, 2000; (v) all COBRA forms and related notices provided since January 1, 2000 (or such forms and notices as required under comparable law); (vi) nondiscrimination test reports for each applicable Plan for the last three (3) years; (vii) all registration statements, annual reports (Form 11-K and all attachments thereto) and prospectuses prepared in connection with each Plan for the last three (3) years; and (viii) all reports, forms and other documents required to be filed with any Governmental Body in the last two (2) years (including, without limitation, summary plan descriptions, Forms 5500 and summary annual reports for all plans subject to ERISA) ), have been delivered or made available to AcquirorQuadraMed. There are no negotiations, demands or proposals which that are pending or have been made which concern matters now covered, or that would be covered, by the type of agreements any Plan listed in the Company Disclosure Scheduleon Schedule 3.25.
(n) All expenses and liabilities Liabilities relating to all contributions required by any Legal Requirement and the terms of the Plans described in the Company Disclosure on Schedule 3.25 have been, and will on the Closing be Date will be, fully and properly accrued on the Companyappropriate employer’s books and records and disclosed in accordance with GAAP and in Plan financial statements.
(o) Neither the Company nor any ERISA Affiliate has, prior to the Effective Time and in any material respect, violated any The consummation of the health care continuation requirements of COBRAtransactions contemplated by the Transaction Agreements will not give rise to any Liability, the requirements of FMLAincluding, the requirements of the Health Insurance Portability and Accountability Act of 1996without limitation, the requirements of the Women’s Health and Cancer Rights Act of 1998liability for severance pay, the requirements of the Newborns’ and Mothers’ Health Protection Act of 1996unemployment compensation or termination pay, or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to any amendment to each employee, consultant, director or shareholder of Tempus (whether current, former or retired) or their beneficiaries solely by reason of such act, transactions or any similar provisions by reason of state law applicable to its employeesa termination following such transactions.
(p) Set forth on Neither Tempus nor any Member of the Controlled Group, or, to the Knowledge of Tempus and each Shareholder, any officer or employee thereof has made any legally binding promises or commitments to create any additional plan, contract or arrangement, or to modify or change any existing Plan. To the Knowledge of Tempus and each Shareholder, no event, condition or circumstance exists that could result in an increase of the benefits provided under any Plan or the expense of maintaining any Plan from the level of benefit or expense incurred for the most recent fiscal year ended before the Closing Date. Neither Tempus nor any Member of the Controlled Group has any unfunded Liabilities pursuant to any Plan that is not intended to be qualified under Section 4.16(p401(a) of the Company Disclosure Schedule Code and is a list an employee pension benefit plan within the meaning of all employees of the Company as of the date of the Agreement. Section 4.16(p3(2) of the Company Disclosure Schedule also containsERISA, with respect to each such employee: (i) the employee’s base salarya non-qualified deferred compensation plan, whether such employee is a bonus or commission employee, an approximate calculation of any bonus payable to such employee as of the date of this Agreement, and any commission schedule applicable to such employee; (ii) accrued paid time off payable to such employee as of January 27, 2003; and (iii) any severance that would be due upon termination with or without cause of such employee. Copies of all loans and commission plans have been made available to Acquirorexcess benefit plan.
Appears in 1 contract
Samples: Merger Agreement (Quadramed Corp)
