Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports. (b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability. (i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover. (d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover. (e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust. (f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States. (g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Walter Industries Inc /New/), Agreement and Plan of Merger (Hanover Capital Mortgage Holdings Inc), Merger Agreement (Hanover Capital Mortgage Holdings Inc)
Benefit Plans. (a) Section 5.13(a) Comply in all material respects with all requirements of ERISA and any Foreign Benefit Law applicable to it and furnish to the Hanover Disclosure Letter lists each material “employee benefit plan” (Agent as defined soon as possible and in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral any event (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and within thirty (ii30) in which any individual who is currently days after the Borrower knows or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, reason to know that any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust reportable event or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed event under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Foreign Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made Law with respect to any Hanover Benefit Plan have been timely made. There are no pending oremployee benefit plan maintained by the Borrower or any Subsidiary which could give rise to termination or the imposition of any material tax or penalty has occurred, written statement of an Authorized Representative describing in reasonable detail such reportable event or such other event and any action which the Borrower or applicable Subsidiary proposes to Hanover’s Knowledgetake with respect thereto, threatened claims by, on behalf of or against any together with a copy of the Hanover notice of such reportable event given to the Pension Benefit Plans Guaranty Corporation or to any assets thereof, other than routine claims for benefits applicable Person exercising similar duties and functions under such plans, that, if adversely determined could, individually any Foreign Benefit Law or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or statement that said notice will be promptly furnished to Xxxxxx and Spinco when made) filed with respect to any the annual report of the Hanover Benefit Plans before the IRS, the United States Department of Labor with respect to such plan if such filing has been authorized, (ii) promptly after receipt thereof, a copy of any notice that the Borrower or any Subsidiary may receive from the PBGC Pension Benefit Guaranty Corporation or from any other Person exercising similar duties and functions under any Foreign Benefit Law relating to the intention of the Pension Benefit Guaranty Corporation or any such Person to terminate any employee benefit plan or plans of the Borrower or any Subsidiary or to appoint a trustee to administer any such plan, (iii) within 10 days after a filing with the Pension Benefit Guaranty Corporation pursuant to Section 412(n) of the Code or with any Person pursuant to any Foreign Benefit Law of a notice of failure to make a required installment or other payment with respect to a plan, a certificate of an Authorized Representative setting forth details as to such failure and the action that wouldthe Borrower or its affected Subsidiary, individually as applicable, proposes to take with respect thereto, together with a copy of such notice given to the Pension Benefit Guaranty Corporation or to such Person, and (iv) promptly after the incurrence thereof and in any event within 10 days, notice of withdrawal by the aggregate, Borrower or any Subsidiary from any Multi-employer Plan which withdrawal could reasonably be expected to result in a material liability to Hanoverwithdrawal liability.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 4 contracts
Samples: Credit Agreement (Proffitts Inc), Credit Agreement (Saks Inc), Credit Agreement (Proffitts Inc)
Benefit Plans. (ai) Section 5.13(aSchedule 4(r)(i) sets forth a list and brief description of the Hanover Disclosure Letter lists each material “all "employee benefit plan” plans" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and all other material employee benefit, bonus, incentiveretirement, deferred compensation, stock option health, fringe benefit, severance or similar employee benefit or compensation arrangements (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insuranceall the foregoing being herein called "Benefit Plans") and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover the Company or any of its Subsidiaries for the benefit of any director, officer or to which Hanover employee of the Company or any of its Subsidiaries is a party and (ii) in which any individual who is currently or Subsidiaries. The Company has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx VANTAS true, complete and Spinco true and complete correct copies of (A) each Hanover Benefit Plan and (or, in the case of any amendments thereto (or if the plan is not a written planunwritten Benefit Plans, a description descriptions thereof), any related trust or other funding vehicleincluding all amendments and summaries of material modifications, (B) the most recent annual reports or summaries required to be prepared or report on Form 5500 (together with all schedules and exhibits filed under ERISA or the Code and the most recent determination letter received from therewith) filed with the IRS with respect to each Benefit Plan (if any such report was required) and the most recent summary annual report distributed to participants with respect to each Benefit Plan for which a summary annual report is required and (C) the most recent summary plan intended description for each Benefit Plan for which such a summary plan description is required. None of the Benefit Plans are subject to qualify under Title IV of ERISA or the minimum funding requirements of Section 401 412 of the Code and the three most recent years Company and its Subsidiaries have not previously maintained or contributed to (Aor been required to maintain or contribute to) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected any plan which was subject to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under the minimum funding requirements of Section 412 of the Code that has not been satisfied in full, and with respect to which the Company or its Subsidiaries could have any liability therefor.
(ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Each Benefit Plan has been operated and administered in all material respects in accordance with its terms terms. The Company, its Subsidiaries and all the Benefit Plans are in compliance in all material respects with the applicable law, including, but not limited to, ERISA, provisions of ERISA and the Code and the laws of any all other applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, law and all employer and employee contributions required to be made with respect to any Hanover Benefit Plan have been timely mademade to such plans. There are no pending lawsuits, actions, termination proceedings or other proceedings pending, or, to Hanover’s Knowledgethe knowledge of the Company, threatened claims byagainst or involving any Benefit Plan and, on behalf of or against any to the knowledge of the Hanover Benefit Plans Company, there are no investigations by any Governmental Entity or any assets thereof, other than routine claims (except claims for benefits under such plans, that, if adversely determined could, individually or payable in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any normal operation of the Hanover Benefit Plans before the IRS, the United States Department of Labor Plans) pending or the PBGC that would, individually threatened against or in the aggregate, reasonably be expected involving any Benefit Plan or asserting any rights to result in a material liability to Hanoverbenefits under any Benefit Plan.
(eiii) Each Hanover Except as provided in Schedule 4(r)(ii), all Benefit Plan intended to be “qualified” within the meaning of Plans which are "employee pension benefits plans" (as defined in Section 401(a3(2) of ERISA) (the Code has received a "Pension Plans") have been the subject of determination letter letters from the IRS stating to the effect that they such Pension Plans are qualified and the trusts maintained thereunder are exempt from taxation Federal income taxes under Section Sections 401(a) and 501(a), respectively, of the Code, respectivelyor timely applications for such letters are currently pending with the IRS, and each trust maintained under any Hanover Benefit Plan intended no such determination letter has been revoked nor, to satisfy the requirements of Section 501(c)(9) knowledge of the Code Company, has satisfied revocation been threatened, nor has any such requirements and, Pension Plan been amended since the date of its most recent determination letter or application therefor in any such case, no event has occurred or condition is known to exist respect that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trustits qualification.
(fiv) No Hanover Benefit Plan is maintained outside the jurisdiction None of the United StatesBenefit Plans which are "employee welfare benefit plans" (as defined in Section 3(1) of ERISA) provide for post-retirement medical or dental insurance benefits, or covers any employee residing or working outside the United Statescost of which is not entirely borne by the retirees eligible therefor.
(gv) Except as otherwise provided set forth in Schedule 4(r)(ii), no director, officer or contemplated by this Agreement employee or former director, officer or employee of the Company or its Subsidiaries will become entitled to payment or accelerated vesting of any bonus, retirement, severance, job security or similar benefit or any Executed Transaction Agreement, the consummation enhanced benefit solely as a result of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverhereby.
Appears in 3 contracts
Samples: Merger Agreement (Vantas Inc), Merger Agreement (Reckson Services Industries Inc), Merger Agreement (Carramerica Realty Corp)
Benefit Plans. (ai) Each Pension Plan, Welfare Plan, and each other plan, arrangement or policy relating to compensation, deferred compensation, severance, fringe benefits or other employee benefits, in each case maintained or contributed to, or required to be maintained or contributed to, by the Company or any of the Company Subsidiaries for the benefit of any present or former officer, employee, agent, director or independent contractor of the Company or any Company Subsidiary (all the foregoing being herein called "Company Benefit Plans") has been administered in accordance with its terms except where failure to administer in accordance with such terms would not reasonably be expected to have a Company Material Adverse Effect. The Company, each of the Company Subsidiaries and all the Company Benefit Plans are in compliance with the applicable provisions of ERISA, the Code, all other applicable laws and all applicable collective bargaining agreements except where failure to comply would not reasonably be expected to have a Company Material Adverse Effect. A complete and correct copy of each Company Benefit Plan, and the most recent trust agreement, custodial agreement or insurance contract relating thereto, have been made available to FNF. Section 5.13(a3.2(g) of the Hanover Company Disclosure Letter lists Schedule sets forth a complete and correct list of each employment contract as to which the Company has any obligation or liability, contingent or otherwise.
(ii) None of the Company or any other person or entity that together with the Company is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code (each a "Company Commonly Controlled Entity") has incurred any material “employee benefit liability under Title IV of ERISA (other than for the payment of benefits or Pension Benefit Guaranty Corporation insurance premiums, in either case in the ordinary course).
(iii) No Company Commonly Controlled Entity is obligated to contribute to any "multiemployer plan” " (as defined in Section 3(34001(a)(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director withdrawn from or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, incurred any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material contractual liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV multiemployer plan resulting or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a any material liability to Hanover.
"withdrawal liability" (d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a4201 of ERISA) of the Code that has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trustnot been fully paid.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 3 contracts
Samples: Merger Agreement (Fidelity National Financial Inc /De/), Merger Agreement (Fidelity National Information Services, Inc.), Merger Agreement (Fidelity National Financial Inc /De/)
Benefit Plans. (a) Section 5.13(aAs soon as administratively practicable after the Effective Time, FNB shall take all reasonable action so that employees of HBI and the HBI Subsidiaries shall be entitled to participate in each FNB Benefit Plan of general applicability with the exception of FNB’s defined benefit pension plan and any other plan frozen to new participants (collectively, the “FNB Eligible Plans”) to the same extent as similarly-situated employees of FNB and its Subsidiaries, it being understood that inclusion of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined employees of HBI and the HBI Subsidiaries in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit the FNB Eligible Plans may occur at different times with respect to different plans, programs provided that coverage shall be continued under corresponding HBI Benefit Plans until such employees are permitted to participate in the FNB Eligible Plans and arrangementsprovided further, whether or not subject to ERISA andhowever, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover that nothing contained in this Agreement shall require FNB or any of its Subsidiaries to make any grants to any former employee of HBI under any discretionary equity compensation plan of FNB or to which Hanover provide the same level of (or any of any) employer contributions or other benefit subsidies as HBI or the HBI Subsidiaries have provided. Notwithstanding the foregoing, during the period commencing at the Effective Time and ending on the first anniversary thereof, FNB or its Subsidiaries is a party shall provide severance payments and (ii) in which any individual who is currently or has been an officer, director or benefits to each employee of Hanover HBI and the HBI Subsidiaries (a “Hanover Employee”as of immediately prior to the Effective Time) is a participant (that are no less favorable than the “Hanover Benefit Plans”). Neither Hanover, any of severance payments and benefits provided by FNB and its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal planto their similarly situated employees, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 as of the Code date hereof and as further described in Section 6.6(a) of the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsHBI Disclosure Schedule.
(b) Except FNB shall cause each FNB Eligible Plan in which employees of HBI and the HBI Subsidiaries are eligible to participate, to recognize, for purposes of determining eligibility to participate in, and vesting of, benefits under the FNB Eligible Plans, the service of such employees with HBI and the HBI Subsidiaries to the same extent as such service was credited for such purpose by HBI or the HBI Subsidiaries, and, solely for purposes of FNB’s severance and vacation plans, policies and programs, for purposes of determining the benefit amount, provided, however, that such service shall not be recognized to the extent that such recognition would not, individually or in the aggregate, reasonably be expected to result in a material liability duplication of benefits. Except for the commitment to Hanovercontinue those HBI Benefit Plans that correspond to FNB Eligible Plans until employees of HBI and the HBI Subsidiaries are included in such FNB Eligible Plans, (i) neither Hanover nor nothing in this Agreement shall limit the ability of FNB to amend or terminate any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied HBI Benefit Plans in full, accordance with and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liabilitythe extent permitted by their terms.
(ic) No Hanover At and following the Effective Time, FNB and the Surviving Company shall honor and continue to be obligated to perform, in accordance with their terms, all benefit obligations to, and contractual rights of, current and former employees of HBI and the HBI Subsidiaries and current and former directors of HBI and the HBI Subsidiaries existing as of the Closing Date under any HBI Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to HanoverPlan.
(d) Except At such time as would not, individually or in employees of HBI and the aggregate, reasonably be expected HBI Subsidiaries become eligible to result participate in a material liability medical, dental or health plan of FNB or its Subsidiaries, FNB shall, to Hanoverthe extent reasonably practicable and available from its insurers, cause each Hanover such plan to (i) waive any preexisting condition limitations to the extent such conditions were satisfied or waived under the analogous HBI Benefit Plan, (ii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to such employee or dependent on or after the Effective Time to the extent such employee or dependent had satisfied any similar limitation or requirement under an analogous HBI Benefit Plan has been operated prior to the Effective Time and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code (iii) provide each such employee of HBI and the laws of HBI Subsidiaries and his or her eligible dependents with credit for any co-payments or coinsurance and deductibles paid prior to the Effective Time under an HBI Benefit Plan (to the same extent that such credit was given under the analogous HBI Benefit Plan prior to the Effective Time) in satisfying any applicable foreign jurisdiction. Except as would not result in a material liability to Hanoverdeductible, all contributions required to be made with respect to co-payment, coinsurance or maximum out-of-pocket requirements under any Hanover Benefit Plan have been timely made. There are no pending ormedical, to Hanover’s Knowledge, threatened claims by, on behalf dental or health plan of FNB or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverSubsidiaries.
(e) Each Hanover Benefit Plan intended HBI shall adopt such Board resolutions and take such other action as FNB may reasonably request at least thirty (30) days prior to the Effective Time to cause all 401(k) Plans to be terminated immediately prior to the Effective Time (the “qualified” within Plan Termination Date”) and the meaning accounts of Section 401(aall participants and beneficiaries in the 401(k) Plans as of the Code has received Plan Termination Date to become fully vested as of the Plan Termination Date. As soon as practicable after the Effective Time, FNB shall file or cause to be filed all necessary documents with the IRS for a determination letter that the termination of the 401(k) Plans as of the Plan Termination Date will not adversely affect the plan’s qualified status. FNB shall use its reasonable best efforts to obtain such favorable determination letter; including adopting such amendments to the 401(k) Plans as may be requested by the IRS as a condition to its issuance of a favorable determination letter. As soon as practicable following the receipt of a favorable determination letter from the IRS stating that they and regarding the trusts maintained thereunder are exempt from taxation under Section 401(a) qualified status of the Code401(k) Plans upon its termination, respectively, the account balances in the 401(k) Plans shall be distributed to participants and each trust maintained under any Hanover Benefit Plan intended beneficiaries or transferred to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such an eligible tax-qualified status for any such Hanover Benefit Plan retirement plan or individual retirement account as a participant or beneficiary may direct (or, where no direction is received, to an individual retirement account as an automatic rollover). The Surviving Company shall take all other actions necessary to complete the termination of the 401(k) Plans, including filing a Final Form 5500, that arise after the Effective Time. FNB agrees, to the extent permitted by applicable Law, to permit the participants in the 401(k) Plans who become employees of FNB or its Subsidiaries to roll over their account balances in the 401(k) Plans and loans from the 401(k) Plans to the F.N.B. Corporation Progress Savings 401(k) Plan. Notwithstanding anything in Section 6.6(a) to the contrary, employees of HBI or any such trust.
(f) No Hanover Benefit Plan is maintained outside HBI Subsidiary who continue in employment with the jurisdiction Surviving Company following the Effective Time shall be eligible as of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time Effective Time to participate in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.F.N.B. Corporation Progress Savings 401(k)
Appears in 3 contracts
Samples: Merger Agreement (Howard Bancorp Inc), Merger Agreement (FNB Corp/Pa/), Merger Agreement (Howard Bancorp Inc)
Benefit Plans. (a) Section 5.13(a) Holdco has Previously Disclosed or has previously filed as an exhibit to an SEC Document or made available to the Purchasers or its representative each of the Hanover Disclosure Letter lists each material “employee benefit following to which Holdco or any Holdco Subsidiary is a party or subject: any plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, contract or understanding providing for any bonus, incentivepension, option, deferred compensation, stock option (or other equity-based)retirement payment, profit sharing welfare, severance, change in control, welfare (including post-retirement medical and life insurance) and or fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust benefits or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS compensation with respect to any present or former officer, director, employee or consultant of Holdco or any Holdco Subsidiary (each, other than a Multiemployer Plan, a “Benefit Plan”), in each such plan intended to qualify under Section 401 case, requiring aggregate annual payments or contributions by Holdco and any Holdco Subsidiary in an aggregate amount in excess of $1,000,000 or which has aggregate unfunded liabilities in an amount in excess of $1,000,000 individually provided that the aggregate unfunded liabilities of the Code and Benefit Plans not Previously Disclosed or filed as an SEC Document do not exceed $3,000,000. Section 4.13 of the three most recent years (A) Holdco Disclosure Schedule sets forth a complete list of the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsBenefit Plans.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result have a Material Adverse Effect, (A) with respect to each Benefit Plan, Holdco and any Holdco Subsidiary have complied, and are now in compliance with ERISA, the Code and all Laws and regulations applicable to such Benefit Plans and each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS to the effect that such Benefit Plan is so qualified and exempt from federal income taxes under Sections 401(a) and 501(a) of the Code, and such determination letter has not been revoked and nothing has occurred, whether by action or failure to act, that could reasonably be expected to cause the loss of such qualification; (B) each Benefit Plan has been administered in accordance with its terms including all requirements to make contributions; (C) there is not now, nor do any circumstances exist that are likely to give rise to any requirement for the posting of security with respect to a Benefit Plan or the imposition of any material liability or material lien on the assets of Holdco or any Holdco Subsidiary under ERISA or the Code in respect of any Benefit Plan, and no liability (other than for premiums to Hanover, (ithe Pension Benefit Guaranty Corporation) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section Sections 412 or 4971 of the Code that has not been satisfied or is reasonably expected to be incurred by Holdco or any Holdco Subsidiary; (D) there are no pending or, to Holdco’s knowledge, threatened claims (other than claims for benefits in fullthe ordinary course), lawsuits or arbitrations which have been asserted or instituted against the Benefit Plans or the assets of any of the trusts under any of the Benefit Plans; (E) to Holdco’s knowledge, there are no pending or threatened claims against any fiduciary of any of the Benefit Plans with respect to their duties to the Benefit Plans; (F) to Holdco’s knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Benefit Plans, any fiduciaries thereof with respect to their duties to the Benefit Plans or the assets of any of the trusts under any of the Benefit Plans; (G) Holdco and each Holdco Subsidiary has reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage, and (ii) there have been no condition exists that would communications to employees or former employees which could reasonably be expected interpreted to result in Hanover incurring promise or guarantee such employees or former employees any such liability.retiree health or life insurance or other retiree death benefits on a permanent basis, other than those retirement benefits provided for under Holdco and any Holdco Subsidiary’s collective bargaining agreement;
(ic) No Hanover Benefit Plan None of Holdco, or any Holdco Subsidiary or any other person or entity under common control with Holdco within the meaning of Section 414(b), (c), (m) or (o) of the Code participates in, or is a required to contribute to, any “multiemployer pension plan,” as defined in (within the meaning of Section 3(37) of ERISA and ERISA) (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to HanoverMultiemployer Plan”).
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each individual who performs services for Holdco or any Holdco Subsidiary (other than through a contract with an entity other than Holdco or any Holdco Subsidiary) and who is not treated as an employee of Holdco or any Holdco Subsidiary has been properly characterized as not being an employee for such purposes.
(e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (alone or in conjunction with any termination of employment or other event) will (A) result in a any material liability payment (including, without limitation, severance or “excess parachute payments” (within the meaning of Section 280G of the Code), or forgiveness of indebtedness) or other material obligation becoming due to Hanoverany current or former employee, each Hanover officer or director of Holdco or any Holdco Subsidiary under any Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable lawor otherwise, including(B) limit or restrict the right of Holdco or any Holdco Subsidiary to merge, but not limited toamend or terminate any of the Benefit Plans, ERISA, or (C) materially increase or accelerate or require the Code and the laws funding of any applicable foreign jurisdiction. benefits otherwise payable under any Benefit Plan.
(f) Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldnot, individually or in the aggregate, reasonably be expected to result in have a Material Adverse Effect on Hanover Effect, (A) no work stoppage involving Holdco or any of its Subsidiaries and no matter Holdco Subsidiary is pending or, to the knowledge of Holdco threatened; (other than routine qualification determination filingsB) neither Holdco nor any Holdco Subsidiary is involved in, copies or threatened with or affected by, any labor dispute, arbitration, lawsuit or administrative proceeding that could affect the business of which have been furnished to Xxxxxx Holdco or such Holdco Subsidiary; and Spinco or will be promptly furnished to Xxxxxx (C) employees of Holdco and Spinco when made) Holdco’s Subsidiaries are not represented by any labor union nor are any collective bargaining agreements otherwise in effect with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that wouldsuch employees.
(g) Except as would not, individually or in the aggregate, reasonably be expected to result in have a material liability Material Adverse Effect, with respect to Hanover.
each Foreign Plan, (ei) Each Hanover Benefit each Foreign Plan intended required to be “qualified” within the meaning of Section 401(aregistered has been registered and has been maintained in good standing with applicable regulatory authorities; and (ii) of the Code has received a determination letter from the IRS stating all Foreign Plans that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectivelyrequired to be funded are funded in accordance with applicable Laws, and each trust maintained under any Hanover Benefit Plan intended with respect to satisfy all other Foreign Plans, adequate reserves therefore have been established on the requirements accounting statements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan Holdco or any such trustHoldco Subsidiary.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 3 contracts
Samples: Note Purchase Agreement (Moneygram International Inc), Note Purchase Agreement (Moneygram International Inc), Note Purchase Agreement (Moneygram International Inc)
Benefit Plans. (a) Section 5.13(a3.19(a) of the Hanover Company Disclosure Letter lists each all material “employee benefit planplans” (as defined in within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”), and all other material employee benefitstock purchase, stock option, severance, employment, consulting, change-of-control, bonus, incentive, deferred compensation, stock option compensation and other benefit plans (or other equity-basedincluding the Company Options Plans), severanceagreements, change in controlprograms, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangementspolicies or commitments, whether or not subject to ERISA andERISA, whether written (i)(A) under which any current or oral former director, officer, employee or consultant of the Company or any of its Subsidiaries has any right to benefits and (iB) sponsoredwhich are or have been maintained, maintained sponsored or contributed to or required to be contributed to by Hanover the Company or any of its Subsidiaries or to which Hanover the Company or any of its Subsidiaries makes or is a party and or has been required to make contributions with respect to such directors, officers, employees or consultants or (ii) in with respect to which any individual who is currently the Company or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment direct or formal planindirect liability, whether legally binding contingent or nototherwise. All such plans, agreements, programs, policies and commitments, including Israeli Benefit Plans, are collectively referred to create any additional employee benefit plan or modify or change any existing Hanover as the “Company Benefit Plan that would affect any Hanover Employee except in Plans.”
(b) With respect to each Company Benefit Plan, if applicable, the ordinary course of business. Hanover Company has heretofore delivered or made available to Xxxxxx Parent true, complete and Spinco true and complete correct copies of each Hanover Benefit Plan (i) the plan document and any amendments thereto amendments, (or if ii) the most recent summary plan is not a written plandescription, a description thereof), any related trust or other funding vehicle, (iii) the most recent annual report on Form 5500 (including all schedules), (iv) the most recent annual audited financial statements, actuarial reports or summaries required and opinion, (v) if the Company Benefit Plan is intended to be prepared or filed qualify under ERISA or Section 401(a) of the Code and Code, the most recent determination letter or opinion letter received from the IRS Internal Revenue Service (the “IRS”), and (vi) any filings made with the Israeli Tax Authority (“ITA”) with respect to each such plan intended to qualify under Section 401 Israeli Benefit Plan and any notices of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsITA.
(bc) Except as would not, individually or in Neither the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover Company nor any of its Subsidiaries, nor any other entity which, together with the Company or any of its Subsidiaries would be treated as a single employer under Section 4001 of ERISA Affiliates or Section 414 of the Code (an “ERISA Affiliate”) maintains, sponsors or contributes to or has any obligation to contribute to, and has not within the preceding six years maintained, sponsored or contributed or incurred any liability under Title IV to or Section 302 of ERISA or under had any obligation to contribute to, any employee benefit plan subject to Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring or Title IV of ERISA; any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none ERISA; any “multiple employer plan” as defined in Section 4063 or 4064 of Hanover, ERISA; or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined plan described in Sections 4203 and 4205 Section 413 of ERISA, the liability for which would reasonably be expected to result in a material liability to HanoverCode.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Each Company Benefit Plan has been operated and administered is in compliance in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any other applicable foreign jurisdictionLaws. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover For each Company Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter that is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation qualify under Section 401(a) of the Code, respectively, (i) a favorable determination letter has been issued by the IRS with respect to such qualification and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9(ii) of the Code has satisfied such requirements and, in any such case, no event has occurred since the date of such qualification that has or condition is known reasonably likely to exist that materially adversely affect such qualification. Except as would not reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldbe, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, no individual who has performed services for the Company or any of its Subsidiaries has been improperly excluded from participation in any Company Benefit Plan, and neither the Company nor any of its Subsidiaries has any direct or indirect liability, whether actual or contingent, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(e) None of the Company, any of its Subsidiaries or any Company Benefit Plan has any liability or obligation with respect to or provides health, medical, life insurance or death benefits to current or former employees of the Company or any of its Subsidiaries beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Recommendation Act of 1985 (“COBRA”) or Section 4980B of the Code, or any similar state group health plan continuation Laws, the cost of which is fully paid by such current or former employees or their dependents.
(f) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not (either alone or in combination with another event) (i) result in any payment becoming due, or increase the amount of any compensation due, to any current or former employee of the Company or any of its Subsidiaries, (ii) increase any benefits otherwise payable under any Company Benefit Plan, (iii) result in the acceleration of the time of payment or vesting of any compensation or benefits to any current or former employee of the Company or any of its Subsidiaries, or (iv) result in any funding, through a grantor trust or otherwise, of any compensation or benefits to any current or former employee of the Company or any of its Subsidiaries.
(g) There are no material pending, or, to the Knowledge of the Company, threatened, claims or litigation against any Company Benefit Plan with respect to employees or former employees of the Company or any of its Subsidiaries, other than ordinary claims for benefits by participants and beneficiaries.
(h) Each Company Benefit Plan providing for deferred compensation that constitutes a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code and applicable regulations) for any service provider to either the Company, its Subsidiaries or any of their respective ERISA Affiliates complies in all material respects with the requirements of Section 409A of the Code and the regulations promulgated thereunder.
(i) None of the Company, any of its Subsidiaries, or, to the Knowledge of the Company, any of their respective directors, officers, employees or agents has, with respect to any Company Benefit Plan, engaged in or been a party to any non-exempt “prohibited transaction,” as such term is defined in Section 4975 of the Code or Section 406 of ERISA, which could reasonably be expected to result in the imposition of a material penalty assessed pursuant to Section 502(i) of ERISA or a material tax imposed by Section 4975 of the Code, in each case applicable to the Company, any of its Subsidiaries or any Company Benefit Plan or for which the Company or any of its Subsidiaries has any indemnification obligation.
(j) There is no contract, agreement, plan or arrangement to which the Company is a party, including the provisions of this Agreement, which, individually or collectively, could give rise to the payment of any amount that would not be deductible pursuant to Sections 280G of the Code.
(k) The Israeli Sub does not have any material liability to Hanoverthe ITA with respect to any Israeli Benefit Plan. The Israeli Sub has made adequate provisions with respect to the payment of any payment under any Israeli Benefit Plan, including severance pay provided under applicable Law, agreement or otherwise, except for such payments that can be delayed in the ordinary course of business as permitted under applicable Laws.
(l) No events have occurred or are expected to occur with respect to any Israeli Benefit Plan that would cause a material change in the cost of providing the benefits under such plan or would cause a material change in the cost of providing for other liabilities of such plan.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (CSR PLC), Agreement and Plan of Merger (Zoran Corp \De\), Merger Agreement (Zoran Corp \De\)
Benefit Plans. (a) Section 5.13(a) No Benefit Plan of the Hanover Disclosure Letter lists each material Poplar or its ERISA Affiliates is a “employee defined benefit plan” (as defined in within the meaning of Section 3(33(35) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of HanoverERISA, or a plan that is subject to the minimum funding standards of Section 302 of ERISA or Section 412 of the Code, nor has either Poplar or its ERISA Affiliates ever sponsored, maintained, contributed to or been obligated to contribute to any such plan. There have been no prohibited transactions (described under Section 406 of ERISA Affiliate thereof has made or suffered a “complete withdrawal” Section 4975(c) of the Code) or a “partial withdrawal,” as breaches of fiduciary duty or any other breaches or violations of any law applicable to any of the Benefit Plans, in any such terms case that would subject Poplar to any material Taxes, penalties or other liabilities. There are respectively defined no investigations or audits of any Benefit Plan by any Governmental Authority currently pending and there have been no such investigations or audits that have been concluded that resulted in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material any liability to Hanover.
(d) Except as would notPoplar, individually its Subsidiaries or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover its ERISA Affiliates that has not been fully discharged. Each Benefit Plan has been operated and administered in all material respects in compliance with Applicable Law and in accordance with its terms terms, and applicable lawall reports, includingdescriptions and filings required by the Code, but not limited to, ERISA, the Code and the laws of ERISA or any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made government agency with respect to any Hanover each Benefit Plan have of Poplar or its ERISA Affiliates have, in all material respects, been timely madeand completely filed or distributed. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended that is represented to be “qualified” within the meaning of qualified under Section 401(a) of the Code has a current favorable determination letter or is based on a volume submitter or prototype document that has received a determination favorable advisory or opinion letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the CodeIRS, respectivelyall subsequent interim amendments have been made in a timely manner, and each trust maintained under any Hanover no such Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, been amended or operated in any such case, no event has occurred or condition is known to exist a way that would could reasonably be expected to adversely affect such tax-its qualified status for or the qualified status of its related trust. There have been no terminations, partial terminations or discontinuances of contributions by Poplar to any qualified plan during the preceding six years without notice to and approval by the IRS, to the extent such Hanover notice to and approval by the IRS is required by Applicable Law. There are no pending claims, lawsuits or actions relating to any Benefit Plan or any such trust.
of Poplar (fother than ordinary claims for benefits) and none are threatened. No Hanover Benefit Plan is maintained outside the jurisdiction of Poplar provides retiree medical or retiree life insurance benefits, except as required under Section 4980B of the United StatesCode and subsequent guidance. Poplar has not established or maintained, nor has any liability with respect to, any deferred compensation plan, program, or covers arrangement (including any employee residing or working outside “nonqualified deferred compensation plan”) that is not in compliance with the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation applicable provisions of Section 409A of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverCode.
Appears in 3 contracts
Samples: Exchange Agreement, Exchange Agreement (Magellan Petroleum Corp /De/), Exchange Agreement (Magellan Petroleum Corp /De/)
Benefit Plans. (a) Section 5.13(a) of Other than the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA)REIT I Equity Incentive Plan, REIT I and the REIT I Subsidiaries do not and are not required to, and all other material employee benefithave not and have never been required to, bonusmaintain, incentivesponsor or contribute to any Benefit Plans. Neither REIT I nor any REIT I Subsidiary has any contract, deferred compensation, stock option (plan or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangementscommitment, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or notbinding, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsPlan.
(b) Except as would not, individually or in the aggregate, have not had and would not reasonably be expected to result in a material liability to Hanoverhave REIT I Material Adverse Effect, (i) neither Hanover nor none of REIT I, any REIT I Subsidiary or any of its their respective ERISA Affiliates has incurred any obligation or liability with respect to or under any Benefit Plan or any other employee benefit plan, program or arrangement (including any agreement, program, policy or other arrangement under which any current or former employee, director or consultant has any present or future right to benefits) which has created or will create any obligation with respect to, or has resulted in or will result in any liability to REIT II or any REIT II Subsidiary.
(c) Except as individually or in the aggregate, have not had and would not reasonably be expected to have a REIT I Material Adverse Effect, the REIT I Equity Incentive Plan was established and has been administered in accordance with its terms and in compliance with all applicable Laws, including the Code.
(d) None of REIT I, any REIT I Subsidiaries or any of their respective ERISA Affiliates has ever maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (i) a "pension plan" under Section 3(2) of ERISA that is subject to Title IV or Section 302 of ERISA or under Section 412 or 4971 of the Code that has not been satisfied in fullCode, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
a "multiemployer plan" (i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and ERISA), (iiiii) none a "multiple employer welfare arrangement" (as defined in Section 3(40) of HanoverERISA), or any ERISA Affiliate thereof has made or suffered (iv) a “complete withdrawal” or a “partial withdrawal,” "multiple employer plan" (as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(dSection 413(c) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverCode).
(e) Each Hanover Benefit Plan intended to No amount that could be “qualified” within received (whether in cash or property or the meaning vesting of Section 401(aproperty) as a result of the Code has received Merger or any of the other transactions contemplated hereby (alone or in combination with any other event) by any Person who is a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation "disqualified individual" (as such term is defined in Treasury Regulation Section 1.280G-1) under any compensation arrangement could be characterized as an "excess parachute payment" (as such term is defined in Section 401(a280G(b)(1) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust).
(f) No Hanover Benefit The REIT I Equity Incentive Plan is has been maintained outside the jurisdiction and operated in compliance with Section 409A of the United States, Code or covers any employee residing or working outside the United Statesan available exemption therefrom.
(g) Except as Neither REIT I nor any REIT I Subsidiary is a party to or has any obligation under any Contract, the REIT I Equity Incentive Plan or otherwise provided in to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or contemplated by this Agreement for additional taxes payable pursuant to Section 409A of the Code.
(h) Neither REIT I nor any REIT I Subsidiary has, or has ever had, any employees on its payroll.
(i) No individual who provides services to REIT I or any Executed Transaction AgreementREIT I Subsidiary is represented by a labor union or similar representative with respect to the services that he or she provides to REIT I or a REIT I Subsidiary, the consummation of the transactions contemplated by this Agreement shall not result by itself and neither REIT I nor any REIT I Subsidiary is a party or subject to any collective bargaining agreement or other Contract with a labor union or similar representative. There is no question concerning representation as to any collective bargaining representative concerning any individual who performs services for or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit respect to REIT I or any increase in REIT I Subsidiary and, to the Knowledge of REIT I, no labor union or similar organization is seeking to organize or represent anyone who performs services for or with respect to REIT I or any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverREIT I Subsidiary.
Appears in 2 contracts
Samples: Merger Agreement (MVP REIT II, Inc.), Merger Agreement (MVP REIT, Inc.)
Benefit Plans. (ai) Each Parent Employee Benefit Plan has been established, maintained and administered in compliance, in all material respects, with all applicable provisions of ERISA, the Code, all other Laws and regulations applicable to such Parent Employee Benefit Plan, and the terms applicable to such Parent Employee Benefit Plan. There is not now, nor do any circumstances exist that could give rise to, any requirement for the posting of security by Parent, AcquisitionCo or any other Subsidiary of Parent with respect to a Parent Employee Benefit Plan or the imposition of any lien on the assets of any of Parent, AcquisitionCo or any other Subsidiary of Parent under ERISA, the Code or other applicable Law.
(ii) As to any employee benefit plan sponsored, maintained, contributed to, or required to be contributed to, by Parent, AcquisitionCo or any other Subsidiary of Parent, or any of their respective ERISA Affiliates that is subject to Title IV of ERISA (a “Parent Title IV Plan”), except as would not reasonably be expected to have a Material Adverse Effect on Parent, (A) there has been no failure to satisfy the minimum funding standards, whether or not waived, imposed by Section 5.13(a302 of ERISA or Section 412 of the Code; (B) no reportable event within the meaning of Section 4043 of ERISA (for which the disclosure requirements of regulation Section 4043.1 et seq., promulgated by the PBGC have not been waived) has occurred; (C) no proceeding has been instituted under Section 4042 of ERISA to terminate the plan; (D) Parent, AcquisitionCo and the other Subsidiaries of Parent, and their respective ERISA Affiliates have made all required contributions; (E) no notice of intent to terminate such plan has been given under Section 4041 of ERISA; (F) no liability to the PBGC has been incurred (other than with respect to required premium payments), which liability has not been satisfied; (G) no withdrawal liability, within the meaning of 4201 of ERISA, for which any of Parent, AcquisitionCo or any other Subsidiary of Parent or any of their respective ERISA Affiliates could be liable has been incurred, which withdrawal liability has not been satisfied; and (H) such plan complies in form and has been operated in compliance with its terms and the requirements of all applicable Laws, including ERISA and the Code. An actuarial report or valuation for the most recently completed plan year for each Parent Title IV Plan has been made available to the Company.
(iii) None of Parent, AcquisitionCo or any other Subsidiary of Parent, nor any of their respective ERISA Affiliates, has engaged in any transaction described in Section 4069 or Section 4204 or 4212(c) of the Hanover Disclosure Letter lists each material ERISA.
(iv) To Parent’s knowledge, none of Parent, AcquisitionCo or any other Subsidiary of Parent nor any other Person, including any fiduciary, has engaged in any “employee benefit planprohibited transaction” (as defined in Section 3(3) 4975 of the Code or Section 406 of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against subject any of the Hanover Parent Employee Benefit Plans or their related trusts, any assets thereofof Parent, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover AcquisitionCo or any other Subsidiary of its Subsidiaries and no matter is pending (Parent or any Person that any of Parent, AcquisitionCo or any other than routine qualification determination filingsSubsidiary of Parent has an obligation to indemnify, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor material tax or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of penalty imposed under Section 401(a) 4975 of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under or Section 401(a) 502 of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trustERISA.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 2 contracts
Samples: Arrangement Agreement (Nabors Industries LTD), Arrangement Agreement (Tesco Corp)
Benefit Plans. (a) Section 5.13(a5.17(a) of the Hanover iPCS Disclosure Letter lists Schedule sets forth a true and complete list of each material “"employee benefit plan” " (as defined in Section within the meaning of section 3(3) of ERISA); each deferred compensation plan, incentive compensation plan, equity compensation plan, employment, termination or severance agreement; and all each other material employee benefitbenefit plan, bonusfund, incentiveprogram, deferred compensationagreement or arrangement, stock option (or other equity-based)in each case, severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) that is sponsored, maintained or contributed to or required to be contributed to by Hanover iPCS or by any trade or business, whether or not incorporated, that together with iPCS as of the date hereof, would be deemed, a "single employer" within the meaning of Section 414 of the Code (a "iPCS ERISA Affiliate"), or with respect to which iPCS or any of its Subsidiaries or to which Hanover or iPCS ERISA Affiliate may have any of its Subsidiaries is a party and liability (ii) in which any individual who is currently or has been an officercollectively, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover "iPCS Benefit Plans”"). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover .
(b) iPCS has heretofore delivered or made available to Xxxxxx and Spinco the Company true and complete copies of each Hanover of iPCS Benefit Plan Plans and any amendments thereto all related documents, including to the extent applicable (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, i) the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and actuarial report for such iPCS Benefit Plan, (ii) the most recent determination letter received from issued by the IRS Internal Revenue Service with respect to such iPCS Benefit Plan, (iii) the most recent annual report required to be filed with respect to each such plan intended to qualify under Section 401 of iPCS Benefit Plan, and (iv) the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportssummary plan description with respect to each iPCS Benefit Plan.
(bc) Except as would not, individually or set forth in the aggregate, reasonably be expected to result in a material liability to HanoverSection 5.17(c) of iPCS Disclosure Schedule, (i) neither Hanover nor each of iPCS Benefit Plans has been operated and administered in material compliance with its terms and applicable law, including to the Exchange Act, the Securities Act, ERISA and the Code, (ii) each of iPCS Benefit Plans intended to be "qualified" within the meaning of Section 401(a) of the Code, (1) has received a favorable determination letter from the IRS which covers all amendments thereto for which the remedial amendment period has expired or (2) is or will be the subject of an application for a favorable determination letter within the applicable remedial amendment period which has not expired, and, if a favorable determination or opinion letter has been received, iPCS is not aware of any circumstances reasonably likely to result in the revocation or denial of its any such favorable determination or opinion letter, (iii) no iPCS Benefit Plan provides benefits, including death or medical benefits (whether or not insured), with respect to current or former employees of iPCS or any iPCS ERISA Affiliate beyond their retirement or other termination of service, other than (w) coverage mandated by applicable law, (x) death benefits or retirement benefits under any "employee pension benefit plan," as that term is defined in Section 3(2) of ERISA, (y) deferred compensation benefits accrued as liabilities on the books of iPCS or iPCS ERISA Affiliates has incurred any or (z) benefits which are fully insured and for which the full cost is borne by the current or former employee (or his beneficiary), (iv) no iPCS Benefit Plan is subject to Title IV of ERISA, and no liability under Title IV or Section 302 of ERISA has been incurred by iPCS or under Section 412 of the Code any iPCS ERISA Affiliate that has not been satisfied in full, and neither iPCS nor a iPCS ERISA Affiliate has any contingent liability under Title IV of ERISA, (iiv) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover iPCS Benefit Plan is a “"multiemployer pension plan,” " as such term is defined in Section 3(37) of ERISA and ERISA, (iivi) none of Hanover, all contributions or other amounts payable by iPCS or any iPCS ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” Affiliates as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected Effective Time with respect to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover iPCS Benefit Plan has in respect of current or prior plan years have been operated and administered in all respects paid or accrued in accordance with its terms and applicable lawGAAP, including(vii) neither iPCS nor any iPCS ERISA Affiliate, but not limited tonor to the knowledge of iPCS, ERISAany other person, the Code and the laws of any applicable foreign jurisdiction. Except as would not result has engaged in a material liability transaction or has taken or failed to Hanovertake any action in connection with which iPCS or any iPCS ERISA Affiliate reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There 4976 or 4980B of the Code, (viii) there are no pending pending, or, to Hanover’s Knowledgethe knowledge of iPCS, threatened or anticipated claims or proceedings (other than routine claims for benefits) by, on behalf of or against any of the Hanover iPCS Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectivelyrelated thereto, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9(ix) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself will not, either alone or in combination with the passage any other event, (y) entitle any current or former employee, officer, director or consultant of time in the iPCS or any iPCS ERISA Affiliate to severance pay, termination pay or any other payment or acceleration benefit, except as expressly provided in this Agreement or (z) accelerate the time of payment or vesting or increase the amount or value of compensation or benefits due any such employee, officer, director or consultant. None of the assets of any amount, the accrual or acceleration of any benefit or any increase iPCS Benefit Plan are invested in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoveriPCS Common Stock.
Appears in 2 contracts
Samples: Merger Agreement (Ipcs Inc), Merger Agreement (Horizon PCS Inc)
Benefit Plans. (a) Section 5.13(a4.11(a) of the Hanover APP Disclosure Letter lists sets forth a true and complete list of each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover Benefit Plan that APP or any of its Subsidiaries or maintains, to which Hanover APP or any of its Subsidiaries is a party and (ii) in contributes or as to which APP or any individual who is currently or of its Subsidiaries has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant any liability (the “Hanover APP Benefit Plans”). Neither HanoverWith respect to each APP Benefit Plan, any of its Subsidiaries nor any ERISA Affiliate thereof APP has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx FHC Wisconsin complete and Spinco true and complete accurate copies of each Hanover (i) such APP Benefit Plan and any amendments thereto (or if and, to the extent applicable, summary plan is not a written plan, a description thereof), any related trust (ii) each trust, insurance, annuity or other funding vehiclecontract related thereto, (iii) the most recent audited financial statements and actuarial or other valuation reports prepared with respect thereto, (iv) the most recent annual reports or summaries report on Form 5500 required to be prepared or filed under ERISA or with the Code and Internal Revenue Service (the “IRS”) with respect thereto, (v) the most recent recently received IRS determination letter received or opinion in the case of any APP Benefit Plan that is intended to be qualified under Section 401(a) of the Code, (vi) any summary plan descriptions, summaries of material modifications, employee handbooks and any other written communications (or a description of any oral communications) relating to any APP Benefit Plan; and (vii) material notices, letters or other correspondence to or from the IRS with respect IRS, Department of Labor, Pension Benefit Guaranty Corporation or other Governmental Entity relating to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsany APP Benefit Plan.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 Each of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover APP Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan Plans has been operated and administered in all respects in accordance compliance with its terms and in accordance with applicable lawLaw, including, but not limited to, including ERISA, the Code and in each case the laws of any applicable foreign jurisdiction. Except as would regulations thereunder; (ii) no APP Benefit Plan provides welfare benefits, including death or medical benefits (whether or not result in a material liability to Hanoverinsured), all contributions required to be made with respect to any Hanover current or former employees or directors of APP or its Subsidiaries beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or comparable Law; (iii) all contributions or other amounts payable by APP or its Subsidiaries as of the APP Effective Time pursuant to each APP Benefit Plan in respect of current or prior plan years have been timely made. There are no pending paid or, to Hanover’s Knowledgethe extent not yet due, have been accrued in accordance with GAAP; (iv) neither APP nor any of its Subsidiaries has engaged in a transaction in connection with which APP or its Subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code; and (v) there are no pending, or to the Knowledge of APP, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Hanover APP Benefit Plans or any assets thereoftrusts related thereto.
(c) None of APP, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRStheir respective ERISA Affiliates contributes to or is obligated to contribute to, the United States Department or has contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and none of Labor APP, any of its Subsidiaries or the PBGC that would, individually or in the aggregate, reasonably be expected to result any of their respective ERISA Affiliates has withdrawn in a material complete or partial withdrawal from any Multiemployer Plan or incurred any liability to Hanoverunder Section 4202 of ERISA.
(ed) Each Hanover of the APP Benefit Plan Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, (i) is so qualified and each trust maintained under there are no existing circumstances or any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-the qualified status for of any such Hanover plan and (ii) has received a favorable determination letter or opinion letter as to its qualification.
(e) Neither the execution and delivery of this Agreement or any of the Transaction Documents to which APP is a party nor the consummation of the transactions contemplated hereby or thereby (either alone or in conjunction with any other event) will (i) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of APP or its Subsidiaries under any APP Benefit Plan or otherwise, (ii) increase any benefits otherwise payable under any APP Benefit Plan or (iii) result in any acceleration of the time of payment, funding or vesting of any such trustbenefits.
(f) No Hanover Benefit Plan Person is maintained outside the jurisdiction entitled to receive any additional payment (including any Tax gross-up or other payment) from APP or any of its Subsidiaries as a result of the United States, imposition of the excise Taxes required by Section 4999 of the Code or covers any employee residing or working outside Taxes required by Section 409A of the United StatesCode.
(g) Except Each individual who is classified by APP as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation an independent contractor has been properly classified for purposes of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the participation and benefit accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanovereach APP Benefit Plan.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Female Health Co), Merger Agreement (Female Health Co)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) With respect to each Benefit Plan under which any current or former employee, officer or director of FHLB Des Moines has any present or future right to benefits, and which is sponsored, maintained or contributed to by FHLB Des Moines, or required to be contributed to by Hanover or any of its Subsidiaries or with respect to which Hanover FHLB Des Moines has any present or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant future liability (the “Hanover FHLB Des Moines Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof FHLB Des Moines has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true FHLB Seattle a true, correct and complete copies copy of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, A) the most recent annual reports or report (Form 5500) filed with the IRS, if applicable, and, where applicable, the related audited financial statements thereof, (B) such FHLB Des Moines Benefit Plan and all related amendments thereto, (C) each trust agreement relating to such FHLB Des Moines Benefit Plan and all related amendments thereto, (D) the most recent summary plan description for each FHLB Des Moines Benefit Plan for which a summary plan description is required by ERISA and, for Benefit Plans not subject to ERISA, any relevant summaries required to be prepared or filed under ERISA or the Code and (E) the most recent determination letter received from issued by the IRS IRS, if applicable, with respect to each such plan intended to qualify any FHLB Des Moines Benefit Plan qualified under Section 401 401(a) of the Code, if applicable.
(ii) Except as listed on Schedule 3.2(q)(ii) of the FHLB Des Moines Disclosure Schedule, none of the FHLB Des Moines Benefit Plans are subject to Title IV of ERISA.
(iii) Neither FHLB Des Moines nor any of its ERISA Affiliates has ever contributed to or had an obligation to contribute to any Multiemployer Plan or Multiple Employer Plan other than those listed on Schedule 3.2(q)(iii) of the FHLB Des Moines Disclosure Schedule (collectively the “FHLB Des Moines Multiple Employer Plans”). Except as would not have a Material Adverse Effect on FHLB Des Moines, neither FHLB Des Moines nor any of its ERISA Affiliates has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from any Multiemployer Plan or Multiple Employer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA, under the three most recent years terms of any such pension plan or any agreement entered into in connection with any such pension plan, or premiums due to the PBGC under Title IV of ERISA. Except as would not have a Material Adverse Effect on FHLB Des Moines, with respect to the FHLB Des Moines Multiple Employer Plans, (A) the Form 5500s neither FHLB Des Moines nor any of its ERISA Affiliates has withdrawn, partially withdrawn, or received any notice of any claim or demand for withdrawal liability or partial withdrawal liability, and attached Schedulesno event has occurred with respect to a FHLB Des Moines Multiple Employer Plan (or any other Multiemployer Plan or Multiple Employer Plan to which FHLB Des Moines or any of its ERISA Affiliates has at any time had an obligation to contribute) that reasonably can be expected to constitute a “withdrawal” or “partial withdrawal” (as such terms are defined in Title IV of ERISA) with respect to such FHLB Des Moines Multiple Employer Plan, which could reasonably be expected to result in any liability to FHLB Des Moines or any of its ERISA Affiliates; (B) audited financial statements and neither FHLB Des Moines nor any of its ERISA Affiliates has received any notice that a FHLB Des Moines Multiple Employer Plan is in reorganization, that increased contributions may be required to avoid a reduction in plan benefits or the imposition of any excise tax, or that a FHLB Des Moines Multiple Employer Plan is or may become insolvent; (C) actuarial valuation reportsneither FHLB Des Moines nor any of its ERISA Affiliates has failed to make any required contributions to a FHLB Des Moines Multiple Employer Plan; (D) to the Knowledge of FHLB Des Moines, no FHLB Des Moines Multiple Employer Plan is a party to any pending merger or asset or liability transfer; (E) to the Knowledge of FHLB Des Moines, there are no PBGC proceedings against or affecting any FHLB Des Moines Multiple Employer Plan; and (F) neither FHLB Des Moines nor any of its ERISA Affiliates has (or may have as a result of the transactions contemplated hereby) any withdrawal liability by reason of a sale of assets pursuant to Section 4204 of ERISA.
(biv) Except as set forth in Schedule 3.2(q)(iv) of the FHLB Des Moines Disclosure Schedule, FHLB Des Moines has no potential, contingent or actual liability for providing, under any FHLB Des Moines Benefit Plan or otherwise, any post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and Section 4980B of the Code or applicable state law.
(v) Except as would not have a Material Adverse Effect on FHLB Des Moines, each FHLB Des Moines Benefit Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with, and complies in form with, Section 409A of the Code and applicable guidance with respect thereto from the period beginning January 1, 2010 through the date hereof.
(vi) Each FHLB Des Moines Benefit Plan has at all times been maintained, administered, operated and funded in accordance with its terms and in compliance with all applicable requirements of all Applicable Laws, except for any instances of noncompliance as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with FHLB Des Moines. With respect to the FHLB Des Moines Benefit Plans, individually and in the aggregate, nothing has occurred and, to the Knowledge of FHLB Des Moines, there exists no condition or set of circumstances in connection with which FHLB Des Moines could be subject to any of the Hanover Benefit Plans before the IRSliability under any Applicable Law, the United States Department of Labor or the PBGC that pursuant to any indemnification agreement, which liability would, individually or in the aggregate, reasonably be expected to result in have a material liability Material Adverse Effect on FHLB Des Moines. To the Knowledge of FHLB Des Moines, except as would not have a Material Adverse Effect on FHLB Des Moines, nothing has occurred, or is reasonably expected to Hanover.
(e) Each Hanover occur, that could reasonably be expected to adversely affect the qualification or exemption of any FHLB Des Moines Benefit Plan that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(aor its related trust or group annuity contract.
(vii) Except as set forth in Schedule 3.2(q)(vii) of the CodeFHLB Des Moines Disclosure Schedule, respectively, and each trust maintained under any Hanover no FHLB Des Moines Benefit Plan intended exists that could result in the payment to satisfy the requirements any present or former employee of Section 501(c)(9) FHLB Des Moines of the Code has satisfied such requirements and, in any such case, no event has occurred money or condition is known other property or accelerate or provide any other rights or benefits to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan present or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction former employee of the United States, or covers any employee residing or working outside the United States.
(g) Except FHLB Des Moines as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation a result of the transactions contemplated by this Agreement shall Agreement, whether or not result by itself such payment would constitute a parachute payment within the meaning of Section 280G of the Code.
(viii) None of the assets of any FHLB Des Moines Benefit Plan are invested in employer securities or employer real property.
(ix) Except as would not have a Material Adverse Effect on FHLB Des Moines, with respect to each of the passage of time in FHLB Des Moines Benefit Plans, all contributions or premium payments due and payable on or before the Effective Date have been timely made, and, to the extent not presently payable, appropriate reserves have been established for the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase and properly accrued in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoveraccordance with customary accounting practices.
Appears in 2 contracts
Samples: Merger Agreement (Federal Home Loan Bank of Des Moines), Merger Agreement (Federal Home Loan Bank of Seattle)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (Except as defined in Section 3(3) of ERISAset forth on Schedule 3.1(l), Bona Vida does not sponsor, maintain, or contribute to, and all other material employee benefitis not obligated to contribute to, bonusand does have any liability under, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or has not subject to ERISA and, whether written or oral adopted any Employee Benefit Plans.
(i) sponsoredEach such Employee Benefit Plan (and, maintained to the Knowledge of Bona Vida, each related trust, insurance contract, or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (iifund) in which any individual who is currently or has been an officermaintained, director or employee funded and administered in accordance with the terms of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover such Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if applicable collective bargaining agreement in all material respects, and complies in form and in operation in all material respects with the plan is not a written plan, a description thereof), any related trust or other funding vehicleapplicable requirements of ERISA, the most recent Code, and other applicable Laws.
(ii) All required reports and descriptions (including Form 5500 annual reports or summaries required to be prepared or reports, summary annual reports, and summary plan descriptions) have been timely filed under and/or distributed in accordance with the applicable requirements of ERISA or and the Code and the most recent determination letter received from the IRS with respect to each such plan intended Employee Benefit Plan in all material respects. The requirements of COBRA (or similar state law) have been met in all material respects with respect to qualify under Section 401 of the Code and the three most recent years each such Employee Benefit Plan to which COBRA (Aor similar state law) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsis applicable.
(biii) Except as would not, individually or in All contributions (including all employer contributions and employee salary reduction contributions) that are due have been made within the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its time periods prescribed by ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of and the Code to each such Employee Benefit Plan that has is an employee pension benefit plan under ERISA §3(2) and all contributions for any period ending on or before the Closing Date that are not yet due have been satisfied made to each such Employee Benefit Plan or will be accrued and contributed in fullaccordance with ERISA, the Code, and (ii) no condition exists the past custom and practice of Bona Vida. All applicable premiums or other similar payments for all periods ending on or before the Closing Date have been paid with respect to each such Employee Benefit Plan that would reasonably be expected to result in Hanover incurring any such liabilityis an employee welfare benefit plan under ERISA §3(1).
(iiv) No Hanover Each such Employee Benefit Plan that is intended to meet the requirements of a “multiemployer pension qualified plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating Internal Revenue Service that they and such Employee Benefit Plan is so qualified, or can rely on an advisory or opinion letter from the trusts maintained thereunder are exempt from taxation under Section 401(a) of Internal Revenue Service to the Code, respectivelyprototype plan or volume submitter plan sponsor, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event nothing has occurred or condition is known to exist since the date of such letter that would reasonably be expected to adversely affect such tax-the qualified status of any such Employee Benefit Plan.
(v) To the Knowledge of Bona Vida, there have been no “prohibited transactions” (as defined in Section 406 of ERISA and Section 4975 of the Code and for which no prohibited transaction exemption is available) with respect to any such Employee Benefit Plan during the prior three (3) years. To the Knowledge of Bona Vida, no fiduciary has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any such Employee Benefit Plan. No Action with respect to such Employee Benefit Plan (including with respect to the administration or the investment of the assets of any such Employee Benefit Plan (other than routine claims for benefits) is pending or, to the Knowledge of Bona Vida, threatened, and no such Employee Benefit Plan within the past three (3) years has been the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction, or similar program sponsored by an Governmental Authority.
(vi) None of such Employee Benefit Plans is a pension plan that is subject to Title IV of ERISA (a “Title IV Plan”), a “multiemployer pension plan” (as defined in Section 3(37) of ERISA) (a “Multiemployer Plan”), a “multiple employer plan” (as defined in Section 413(c) of the Code), or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). Bona Vida does not maintain, sponsor, or contribute to, and is not required to contribute to (or in the past six years has not maintained, sponsored, contributed to, or been required to contribute to) a Title IV Plan or a Multiemployer Plan. Bona Vida and its ERISA Affiliates have neither incurred in the past six (6) years nor do they reasonably expect to incur (directly or indirectly) any material liability under Title I or Title IV of ERISA (or related provisions of the Code) relating to any such Employee Benefit Plan.
(vii) None of such Employee Benefit Plans provides post-termination or retiree health benefits to any individual for any reason, except as required pursuant to COBRA (or similar state law), and Bona Vida does not have any obligation or liability to provide such Hanover benefits to any individual.
(viii) Bona Vida does not have a commitment or obligation, and has not made any representations to any employee or other individual or entity (whether or not legally binding), to adopt, amend, modify, or terminate any such Employee Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United Statescollective bargaining agreement, or covers any employee residing or working outside to adopt a new benefit plan, in connection with the United States.
(g) Except as otherwise provided in or transactions contemplated by this Agreement or any Executed Transaction Agreement, otherwise.
(ix) Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement shall not Agreement, directly or in combination with any termination of employment, will result by itself or with the passage of time in the payment acceleration, vesting, funding, or acceleration creation of any amount, the accrual or acceleration rights of any benefit director, officer, retiree, independent contractor, consultant or employee to payments or benefits, or increases or enhancements in any payments or benefits or any increase loan forgiveness, in each case, from Bona Vida.
(x) No Employee Benefit Plan is a nonqualified deferred compensation plan within the meaning of Section 409A(d)(1) of the Code (each such Employee Benefit Plan, a “Deferred Compensation Plan”); and (ii) Bona Vida has not (a) granted to any person an interest in any vested Deferred Compensation Plan which interest has been or, upon the lapse of a substantial risk of forfeiture with respect to such interest, will be subject to the additional tax (including interest) imposed by Section 409A(a)(1)(B) or entitlement to (b)(5)(A) of the Code, or (b) modified the terms of or operated any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result Deferred Compensation Plan in a material liability manner that could cause an interest previously granted under such plan to Hanoverbecome subject to the additional tax (including interest) imposed by Section 409A(a)(1)(B) or (b)(5)(A) of the Code. Bona Vida does not have any obligation to gross-up, indemnify, or reimburse any individual or entity for any excise taxes, interest, or penalties incurred pursuant to Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Better Choice Co Inc.), Merger Agreement (Better Choice Co Inc.)
Benefit Plans. (a) Section 5.13(a5.12(a) of the Hanover Parent Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) Schedule includes a complete list of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Parent Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof .
(b) Parent has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx Company true, complete and Spinco true and complete correct copies of (i) each Hanover Parent Benefit Plan and (or, in the case of any amendments thereto (or if the plan is not a written planunwritten Parent Benefit Plans, a description descriptions thereof), any related trust or other funding vehicle, (ii) the most recent annual reports report on Form 5500 filed with the Department of Labor with respect to each Parent Benefit Plan (if any such report was required), (iii) the most recent summary plan description for each Parent Benefit Plan for which such summary plan description is required, (iv) each trust agreement and group annuity contract relating to any Parent Benefit Plan, (v) a list of all assets and liabilities of, allocated to or summaries required accounted for separately with respect to be prepared or filed under ERISA or the Code every Parent Benefit Plan (including insurance contracts associated with every Parent Benefit Plan regardless of whether any current cash value exists) and (vi) the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached SchedulesInternal Revenue Service, (B) audited financial statements and (C) actuarial valuation reportsif any.
(bc) Except as Each Parent Benefit Plan has been established, funded, maintained and administered in all material respects in accordance with its terms and is in material compliance with the applicable provisions of ERISA, the Code, all other law applicable to Parent or any Parent Benefit Plan.
(d) All Parent Benefit Plans that are Pension Plans have been the subject of favorable and up-to-date (through any applicable remedial amendment period) determination letters from the Internal Revenue Service, or a timely application therefore has been filed or will be filed, to the effect that such Pension Plans are qualified and exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and no such determination letter has been revoked nor has any such Pension Plan been amended since the date of its most recent determination letter or application therefore in any respect that would notadversely affect its qualification.
(e) None of Parent, individually nor any Subsidiary of Parent or in the aggregate, reasonably be expected to result in a material liability to Hanover, any ERISA Affiliate of Parent has (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under maintained, sponsored or been required to contribute to a plan subject to Title IV or Section 302 of ERISA or under Section 412 or 4971 of the Code that has not been satisfied in full, and or (ii) no condition exists that would reasonably be expected been required at any time or is required currently to result in Hanover incurring contribute to any such liability.
"multiemployer plan" (i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(374001(a)(3) of ERISA and ERISA).
(iif) none Neither Parent nor any Subsidiary of HanoverParent has any liability for life, health, medical or other welfare benefits for former employees or beneficiaries or dependents thereof with coverage or benefits under Parent Benefit Plans, other than as required by Section 4980B of the Code or Part 6 of Title I of ERISA.
(g) All contributions or premiums owed by Parent or any ERISA Affiliate thereof has Subsidiary of Parent with respect to Parent Benefit Plans under law, contract or otherwise have been made in full and on a timely basis.
(h) To Parent's knowledge, no Parent Benefit Plan or suffered a “complete withdrawal” any "fiduciary" or a “partial withdrawal,” "party-in-interest" (as such terms are respectively defined in Sections 4203 by Section 3(21) and 4205 3(14) of ERISA, ) thereto has engaged in a transaction prohibited by Section 406 of ERISA or 4975 of the liability Code for which would reasonably be expected to result a valid exception is not available and which resulted in the imposition of a material liability to Hanovertax.
(di) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s KnowledgeParent's knowledge, threatened claims bythreatened, on behalf of claims, lawsuits, arbitrations or audits asserted or instituted against any Parent Benefit Plan, any fiduciary (as defined by Section 3(21) of the Hanover Benefit Plans ERISA) thereto, Parent, any Subsidiary of Parent or any assets thereofemployee or administrator thereof in connection with the existence, operation or administration of a Parent Benefit Plan, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverbenefits.
(ej) Each Hanover Benefit Plan intended to be “qualified” within the meaning The execution of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, and the consummation of the transactions contemplated by this Agreement shall hereby will not result by itself (either alone or in combination with the passage of time in the payment or acceleration occurrence of any amountadditional or subsequent events) constitute an event under any Parent Benefit Plan or other agreement that will or may result in any payment (whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any current or former employee, director or consultant of Parent or any Subsidiary of Parent. No payments or benefits under any Parent Benefit Plan or other agreement would result in an "excess parachute payment" under Section 280G of the accrual or acceleration Code.
(k) All Parent Benefit Plans subject to the laws of any benefit or any increase jurisdiction outside of the United States (i) have been maintained in any vested interest or entitlement accordance with all applicable requirements, (ii) if they are intended to any benefit or payment by any employeequalify for special tax treatment meet all requirements for such treatment and (iii) if they are intended to be funded and/or book-reserved are fully funded and/or book reserved, officer or director under domestic or foreign law that wouldas appropriate, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverbased upon reasonable actuarial assumptions.
Appears in 2 contracts
Samples: Merger Agreement (Bruker Daltonics Inc), Merger Agreement (Bruker Axs Inc)
Benefit Plans. (ai) Section 5.13(a) of the Hanover Disclosure Letter lists With respect to each material employee benefit plan (including any “employee benefit plan” (”, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) and each material severance, and all other material employee employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, stock option (or compensation and other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe material employee benefit plans, programs and agreements, programs, policies or other arrangements, whether or not subject to ERISA andERISA, whether written formal or informal, oral or written, legally binding or not (i) all the foregoing being herein called “Benefit Plans”), under which any current or former employee, officer or director of FHLB Seattle has any present or future right to benefits, and which is sponsored, maintained or contributed to by FHLB Seattle, or required to be contributed to by Hanover or any of its Subsidiaries or with respect to which Hanover FHLB Seattle has any present or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant future liability (the “Hanover FHLB Seattle Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof FHLB Seattle has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true FHLB Des Moines a true, correct and complete copies copy of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, A) the most recent annual reports or report (Form 5500) filed with the IRS, if applicable, and, where applicable, the related audited financial statements thereof, (B) such FHLB Seattle Benefit Plan and all related amendments thereto, (C) each trust agreement relating to such FHLB Seattle Benefit Plan and all related amendments thereto, (D) the most recent summary plan description for each FHLB Seattle Benefit Plan for which a summary plan description is required by ERISA and, for Benefit Plans not subject to ERISA, any relevant summaries required to be prepared or filed under ERISA or the Code and (E) the most recent determination letter received from issued by the IRS IRS, if applicable, with respect to each such plan intended to qualify any FHLB Seattle Benefit Plan qualified under Section 401 401(a) of the Code, if applicable.
(ii) Except as listed on Schedule 3.1(q)(ii) of the FHLB Seattle Disclosure Schedule, none of the FHLB Seattle Benefit Plans are subject to Title IV of ERISA.
(iii) Neither FHLB Seattle nor any of its ERISA Affiliates has ever contributed to or had an obligation to contribute to any multiemployer plan (within the meaning of Sections 3(37) or 4001(a)(13) of ERISA or Section 414(f) of the Code) (a “Multiemployer Plan”), or a multiple employer plan (within the meaning of Section 413(c) of the Code, or 29 CFR Section 2530.210(c) (a “Multiple Employer Plan”) other than those listed on Schedule 3.1(q)(ii) of the FHLB Seattle Disclosure Schedule (collectively the “FHLB Seattle Multiple Employer Plans”). Except as would not have a Material Adverse Effect on FHLB Seattle, neither FHLB Seattle nor any of its ERISA Affiliates has incurred any liability in connection with the termination of a pension plan subject to Title IV of ERISA, the complete or partial withdrawal from any Multiemployer Plan or Multiple Employer Plan subject to Title IV of ERISA, or the failure to make contributions due under Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA, under the three most recent years terms of any such pension plan or any agreement entered into in connection with any such pension plan, or premiums due to the PBGC under Title IV of ERISA. Except as would not have a Material Adverse Effect on FHLB Seattle, with respect to the FHLB Seattle Multiple Employer Plans, (A) the Form 5500s neither FHLB Seattle nor any of its ERISA Affiliates has withdrawn, partially withdrawn, or received any notice of any claim or demand for withdrawal liability or partial withdrawal liability, and attached Schedulesno event has occurred with respect to a FHLB Seattle Multiple Employer Plan (or any other Multiemployer Plan or Multiple Employer Plan to which FHLB Seattle or any of its ERISA Affiliates has at any time had an obligation to contribute) that reasonably can be expected to constitute a “withdrawal” or “partial withdrawal” (as such terms are defined in Title IV of ERISA) with respect to such FHLB Seattle Multiple Employer Plan, which could reasonably be expected to result in any liability to FHLB Seattle or any of its ERISA Affiliates; (B) audited financial statements and neither FHLB Seattle nor any of its ERISA Affiliates has received any notice that a FHLB Seattle Multiple Employer Plan is in reorganization, that increased contributions may be required to avoid a reduction in plan benefits or the imposition of any excise tax, or that a FHLB Seattle Multiple Employer Plan is or may become insolvent; (C) actuarial valuation reportsneither FHLB Seattle nor any of its ERISA Affiliates has failed to make any required contributions to a FHLB Seattle Multiple Employer Plan; (D) to the Knowledge of FHLB Seattle, no FHLB Seattle Multiple Employer Plan is a party to any pending merger or asset or liability transfer; (E) to the Knowledge of FHLB Seattle, there are no PBGC proceedings against or affecting any FHLB Seattle Multiple Employer Plan; and (F) neither FHLB Seattle nor any of its ERISA Affiliates has (or may have as a result of the transactions contemplated hereby) any withdrawal liability by reason of a sale of assets pursuant to Section 4204 of ERISA.
(biv) Except as set forth in Schedule 3.1(q)(iv) of the FHLB Seattle Disclosure Schedule, FHLB Seattle has no potential, contingent or actual liability for providing, under any FHLB Seattle Benefit Plan or otherwise, any post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and Section 4980B of the Code or applicable state law.
(v) Except as would not have a Material Adverse Effect on FHLB Seattle, each FHLB Seattle Benefit Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with, and complies in form with, Section 409A of the Code and applicable guidance with respect thereto from the period beginning January 1, 2010 through the date hereof.
(vi) Each FHLB Seattle Benefit Plan has at all times been maintained, administered, operated and funded in accordance with its terms and in compliance with all applicable requirements of all Applicable Laws, except for any instances of noncompliance as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with FHLB Seattle. With respect to the FHLB Seattle Benefit Plans, individually and in the aggregate, nothing has occurred and, to the Knowledge of FHLB Seattle, there exists no condition or set of circumstances in connection with which FHLB Seattle could be subject to any of the Hanover Benefit Plans before the IRSliability under any Applicable Law, the United States Department of Labor or the PBGC that pursuant to any indemnification agreement, which liability would, individually or in the aggregate, reasonably be expected to result in have a material liability Material Adverse Effect on FHLB Seattle. To the Knowledge of FHLB Seattle, except as would not have a Material Adverse Effect on FHLB Seattle, nothing has occurred, or is reasonably expected to Hanover.
(e) Each Hanover occur, that could reasonably be expected to adversely affect the qualification or exemption of any FHLB Seattle Benefit Plan that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(aor its related trust or group annuity contract.
(vii) Except as set forth in Schedule 3.1(q)(vii) of the CodeFHLB Seattle Disclosure Schedule, respectively, and each trust maintained under any Hanover no FHLB Seattle Benefit Plan intended exists that could result in the payment to satisfy the requirements any present or former employee of Section 501(c)(9) FHLB Seattle of the Code has satisfied such requirements and, in any such case, no event has occurred money or condition is known other property or accelerate or provide any other rights or benefits to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan present or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction former employee of the United States, or covers any employee residing or working outside the United States.
(g) Except FHLB Seattle as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation a result of the transactions contemplated by this Agreement shall Agreement, whether or not result by itself such payment would constitute a parachute payment within the meaning of Section 280G of the Code.
(viii) None of the assets of any FHLB Seattle Benefit Plan are invested in employer securities or employer real property.
(ix) Except as would not have a Material Adverse Effect on FHLB Seattle, with respect to each of the passage of time in FHLB Seattle Benefit Plans, all contributions or premium payments due and payable on or before the Effective Date have been timely made, and, to the extent not presently payable, appropriate reserves have been established for the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase and properly accrued in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoveraccordance with customary accounting practices.
Appears in 2 contracts
Samples: Merger Agreement (Federal Home Loan Bank of Des Moines), Merger Agreement (Federal Home Loan Bank of Seattle)
Benefit Plans. (ai) Section 5.13(a4.2(l)(i) of the Hanover Xxxxxxxxx Disclosure Letter lists each Schedule sets forth a true and complete list, as of the date hereof, of all material “employee benefit plan” Xxxxxxxxx Plans.
(as defined in Section 3(3ii) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject Xxxxxxxxx has made available to ERISA and, whether written or oral Janus: (i) sponsoredcopies of all material documents setting forth the terms of each material Xxxxxxxxx Plan, maintained including all amendments thereto and all related trust documents (or, in the case of any such Xxxxxxxxx Plan that is unwritten, descriptions thereof); (ii) copies of the audited accounts of the material Xxxxxxxxx Pension Plans for the latest scheme year; (iii) (if applicable) the most recent actuarial valuations and actuarial reports or contributed other funding assessments for all funded Xxxxxxxxx Plans and the most recent assessment of assets and liabilities attributable to all unfunded Xxxxxxxxx Plans; and (iv) all material administrative service agreements and group insurance Contracts relating to each material Xxxxxxxxx Plan.
(iii) Save for the Xxxxxxxxx Pension Plans (each of which is specifically identified as such in Section 4.2(l)(i) of the Xxxxxxxxx Disclosure Schedule), none of Xxxxxxxxx or required its subsidiaries has any material liability with respect to be contributed to by Hanover any provision of a pension, allowance or lump sum on retirement or death for the benefit of any current or former director, worker, officer or employee of Xxxxxxxxx or any of its Subsidiaries subsidiaries or such person’s dependents and no proposal has been made or announced to enter into or establish (or which Hanover could create any reasonable expectation of the entry into or establishment of), any agreement or arrangement for the payment by Xxxxxxxxx or any of its Subsidiaries subsidiaries of the provision of such benefits or a contribution towards such a plan.
(iv) Each Xxxxxxxxx Plan intended to be approved has at all times been approved. For these purposes, approved means that the Xxxxxxxxx Plan is a party in receipt of formal approval or qualification by and/or due registration with the appropriate taxation, social security, supervisory, fiscal and other applicable regulatory authorities in the relevant state or jurisdiction in order to obtain tax exemption (iior partial tax exemption) in which on contributions, benefits and/or investments.
(v) No Action has been, since January 1, 2015, threatened, asserted, instituted or, to the knowledge of Xxxxxxxxx, is anticipated against any individual who is currently of the Xxxxxxxxx Plans (other than routine claims for benefits and appeals of such claims), any trustee or has been an officerfiduciaries thereof, director or employee any of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit assets of any trust of any of the Xxxxxxxxx Plans”). Neither Hanover, or against the Xxxxxxxxx or any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except subsidiaries in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsXxxxxxxxx Plans.
(bvi) Except as would not, individually or in the aggregate, reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on the Xxxxxxxxx, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in fullsince January 1, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover2015, each Hanover Benefit Xxxxxxxxx Plan complies in form and has been maintained and operated and administered in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code Applicable Laws.
(vii) No Xxxxxxxxx Plan provides post-retirement health and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect welfare benefits to any Hanover Benefit Plan have been timely made. current or former employee of Xxxxxxxxx or its subsidiaries, except as required under Applicable Laws.
(viii) There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of loans by Xxxxxxxxx or against any of its subsidiaries to any of their respective employees, officers, directors or other service providers outstanding in violation of any Applicable Laws.
(ix) The consummation of the Hanover Benefit Plans or any assets thereofMerger alone, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in combination with any other event, will not (a) trigger or give rise to any liability under any Xxxxxxxxx Plan (including any liability for special, lump sum, or accelerated funding, payments or contributions) or accelerate the aggregatetime of payment or vesting or increase the amount of compensation or benefits due to any employee director or other individual service provider of Xxxxxxxxx or its subsidiaries (whether current, former or retired) or their beneficiaries, (b) trigger (or could reasonably be expected to trigger) the commencement of any investigation by any competent Governmental Entity with authority in the relevant jurisdiction in relation to any Xxxxxxxxx Plan or (c) trigger the winding up or termination of any Xxxxxxxxx Plan. No amount that could be received (whether in cash or property or the vesting of property), as a result of the consummation of the Merger, by any employee, director or other individual service provider of Xxxxxxxxx or its subsidiaries under any Xxxxxxxxx Plan or otherwise would not be deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code. Neither Xxxxxxxxx nor any of its subsidiaries has any indemnity obligation on or after the Effective Time for any Taxes imposed under Section 4999 or 409A of the Code.
(x) With respect to each Xxxxxxxxx Plan, the fair market value of the assets of each such Xxxxxxxxx Plan that is funded, or the liability of each insurer for any such Xxxxxxxxx Plan that is funded through insurance or the book reserve established for any such Xxxxxxxxx Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in a Material Adverse Effect on Hanover such Xxxxxxxxx Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Xxxxxxxxx Plan, and no Transaction shall cause such assets or insurance obligations to be less than such benefit obligations. Since January 1, 2015, each such Xxxxxxxxx Plan has been maintained and operated in all material respects in accordance with the applicable plan document and all Applicable Laws and other requirements, and if intended to qualify for special Tax treatment, satisfies all requirements for such treatment.
(xi) No debt that remains outstanding has been triggered or has become due in relation to Xxxxxxxxx or any of its Subsidiaries subsidiaries pursuant to section 75 or 75A of the Pensions Xxx 0000 and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to neither Xxxxxxxxx nor any of its subsidiaries has consented to, or acted or agreed to act as guarantor under any withdrawal or apportionment arrangement under the Hanover Benefit Plans before the IRSOccupational Pension Scheme (Employer Debt) Regulations 2005, the United States Department of Labor or the PBGC that would, individually or provided any guarantee in the aggregate, reasonably be expected relation to result in a material liability to Hanoverliabilities under any registered pension scheme.
(exii) Each Hanover Benefit Plan intended to be “qualified” within Except for the meaning Xxxxxxxxx Pension Plans (each of which is specifically identified as such in Section 401(a4.2(l)(i) of the Code Xxxxxxxxx Disclosure Schedule), neither Xxxxxxxxx nor any connected or associated person participates or has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, participated in any such case, no event has occurred or condition is known pension scheme (including but not limited to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United StatesXxxxxxxxx Pension Plans), or covers any employee residing been a party to an act or working outside failure to act, which is likely to give rise to the United Statesissuing by the UK Pensions Regulator of a contribution notice or financial support direction under the Pensions Xxx 0000.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Janus Henderson Group PLC), Agreement and Plan of Merger (Janus Capital Group Inc)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredWith respect to each material RockTenn Benefit Plan, maintained RockTenn has made available to MWV complete and accurate copies of (A) such RockTenn Benefit Plan (or, with respect to any such arrangement that is not in writing, a written description of the material terms thereof), including any amendment thereto, and to the extent applicable, summary plan description thereof, (B) each trust, insurance, annuity or contributed to other funding contract related thereto, (C) the two most recent audited financial statements and actuarial or other valuation reports prepared with respect thereto, (D) the two most recent annual reports on Form 5500 required to be contributed filed with the IRS with respect thereto and the two most recent annual information returns required to by Hanover be filed with any Governmental Entity, (E) the most recently received IRS determination letter or opinion and (F) all material correspondence with a Governmental Entity. Except as specifically provided in the foregoing documents made available to MWV, there are no amendments to any material RockTenn Benefit Plans that have been adopted or approved nor has RockTenn or any of its Subsidiaries subsidiaries undertaken to make any such amendments or to which Hanover adopt or approve any of its Subsidiaries is a party and new material RockTenn Benefit Plans.
(ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would notas, individually or in the aggregate, would not reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on RockTenn, (iA) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 each of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover RockTenn Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan Plans has been operated and administered in all respects in accordance compliance with its terms and applicable lawin accordance with Applicable Laws, including, but not limited to, including ERISA, the Code and in each case the laws of any applicable foreign jurisdiction. Except as would regulations thereunder; (B) no RockTenn Benefit Plan provides welfare benefits, including death or medical benefits (whether or not result in a material liability to Hanoverinsured), all contributions required to be made with respect to any Hanover current or former employees or directors of RockTenn or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated by COBRA, or comparable U.S. state or foreign law; (C) all contributions or other amounts payable by RockTenn or its subsidiaries as of the Effective Time pursuant to each RockTenn Benefit Plan in respect of current or prior plan years have been timely made. There are no pending paid or, to Hanover’s Knowledgethe extent not yet due, have been accrued in accordance with GAAP; (D) neither RockTenn nor any of its subsidiaries has engaged in a transaction in connection with which RockTenn or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code; and (E) there are no pending, or to the knowledge of RockTenn, threatened or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Hanover RockTenn Benefit Plans or any assets thereoftrusts related thereto.
(iii) Section 4.2(j)(iii) of the RockTenn Disclosure Letter sets forth each Multiemployer Plan or Multiple Employer Plan to which RockTenn, other than routine claims for benefits under such plansany of its subsidiaries or any of their respective ERISA Affiliates contributes or is obligated to contribute, thator within the six years preceding the date of this Agreement, if adversely determined couldcontributed, or was obligated to contribute. Except as set forth on Section 4.2(j)(iii) of the RockTenn Disclosure Letter and as, individually or in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect on Hanover RockTenn, none of RockTenn, any of its subsidiaries or any of its Subsidiaries their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the six years preceding the date of this Agreement contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and no matter is pending (other than routine qualification determination filingsnone of RockTenn, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of its subsidiaries or any of their respective ERISA Affiliates has, within the Hanover Benefit Plans before the IRSpreceding six years, the United States Department withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of Labor or the PBGC that wouldERISA.
(iv) Except as, individually or in the aggregate, would not reasonably be expected to result in have a material liability to Hanover.
(e) Each Hanover Material Adverse Effect on RockTenn, each of the RockTenn Benefit Plan Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, (A) is so qualified and each trust maintained under there are no existing circumstances or any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-the qualified status for of any such Hanover Benefit Plan plan and (B) has received a favorable determination letter or any such trustopinion letter as to its qualification.
(fv) No Hanover Section 4.2(j)(v) of the RockTenn Disclosure Letter sets forth each RockTenn Benefit Plan that is maintained outside the jurisdiction subject to Section 302 or Title IV or Section 412, 430 or 4971 of the United StatesCode (each, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreementa “RockTenn Title IV Plan”). With respect to each RockTenn Title IV Plan, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldexcept for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on RockTenn, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (B) no such RockTenn Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) the present value of accrued benefits under such RockTenn Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such RockTenn Title IV Plan’s actuary with respect to such RockTenn Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such RockTenn Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, (E) none of RockTenn, any of its subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069, 4204(a) or 4212(c) of ERISA, (F) all premiums to the PBGC have been timely paid in full, (G) no liability (other than for premiums to the PBGC) has been or, to the knowledge of RockTenn, is expected to be incurred by RockTenn or any of its subsidiaries and (H) the PBGC has not instituted proceedings to terminate any such RockTenn Title IV Plan. Except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on RockTenn, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability following the Closing of RockTenn, any of its subsidiaries or any of their respective ERISA Affiliates. Since July 1, 2014, there has not been any material change in any actuarial or other assumption used to calculate funding obligations with respect to any RockTenn Title IV Plan, or any material change in the manner in which contributions to any RockTenn Title IV Plan are made or the basis on which such contributions are determined.
(vi) Except as provided by this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of RockTenn or its subsidiaries under any RockTenn Benefit Plan or otherwise, (B) increase any benefits otherwise payable under any RockTenn Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of any such benefits.
(vii) No person is entitled to receive any additional payment (including any Tax gross-up or other payment) from RockTenn or any of its subsidiaries as a material liability result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(viii) Except as, individually or in the aggregate, would not reasonably be expected to Hanoverhave a Material Adverse Effect on RockTenn, all RockTenn Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment, and (C) that are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Samples: Business Combination Agreement (MEADWESTVACO Corp), Business Combination Agreement (Rock-Tenn CO)
Benefit Plans. (ai) Section 5.13(a) of the Hanover Disclosure Letter lists With respect to each material employee benefit plan (including, without limitation, any “employee benefit plan,” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), including, without limitation, multiemployer plans within the meaning of ERISA Section 3(37)) and all other material employee stock purchase, stock option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, stock option (or compensation and other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe material employee benefit plans, programs and agreements, programs, policies or other arrangements, whether or not subject to ERISA andERISA, whether written formal or informal, oral or written, legally binding or not (i) sponsoredall the foregoing being herein called “Benefit Plans”), under which any employee or former employee of Hexion or any of its Subsidiaries has any present or future right to benefits that is maintained or contributed to or required to be contributed to by Hanover Hexion or any of its Subsidiaries or to under which Hanover Hexion or any of its Subsidiaries is a party and (ii) in which has any individual who is currently present or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant future liability (the “Hanover Hexion Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof Hexion has any commitment made available, or formal plan, whether legally binding or notwithin 30 days after the execution hereof will make available upon request, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco Momentive a true and complete copies correct copy of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, A) the most recent annual reports report (Form 5500) filed with the IRS, (B) such Hexion Benefit Plan, (C) each trust agreement relating to such Hexion Benefit Plan, (D) the most recent summary plan description for each Hexion Benefit Plan for which a summary plan description is required by ERISA, (E) the most recent actuarial report or summaries required valuation relating to be prepared or filed under a Hexion Benefit Plan subject to Title IV of ERISA or the Code and (F) the most recent determination letter received from issued by the IRS with respect to each such plan intended to qualify any Hexion Benefit Plan qualified under Section 401 401(a) of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(bii) Except as would notnot reasonably be expected, individually or in the aggregate, reasonably be expected to result in have a material liability to Hanover, (i) neither Hanover nor adverse effect on Hexion or any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in fullSubsidiaries with respect to each Hexion Benefit Plan, Hexion and its Subsidiaries have complied, and (ii) no condition exists that would reasonably be expected to result are now in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined compliance, in Section 3(37) of ERISA and (ii) none of Hanoverall material respects, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 with all provisions of ERISA, the liability for which would reasonably be expected Code and all laws and regulations applicable to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, such Hexion Benefit Plans and each Hanover Hexion Benefit Plan has been operated and administered in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverterms.
(eiii) Each Hanover No Hexion Benefit Plan intended exists that could result in the payment to be “qualified” within the meaning any present or former employee of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan Hexion or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction Subsidiary of the United States, Hexion of any money or covers other property or accelerate or provide any other rights or benefits to any present or former employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement of Hexion or any Executed Transaction Agreement, the consummation Subsidiary of Hexion as a result of the transactions contemplated by this Agreement shall Agreement, whether or not result by itself or with such payment would constitute a parachute payment within the passage meaning of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.Code Section 280G.
Appears in 2 contracts
Samples: Combination Agreement (Hexion Specialty Chemicals, Inc.), Combination Agreement (Momentive Performance Materials Inc.)
Benefit Plans. (ai) Section 5.13(a3.2(j)(i) of the Hanover Realty Income Disclosure Letter lists contains a true, complete and correct list of each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) Benefit Plan sponsored, maintained or contributed to or required to be contributed to by Hanover Realty Income or any of its Subsidiaries Subsidiaries, or to which Hanover Realty Income or any of its Subsidiaries is obligated to sponsor, maintain or contribute to, other than any plan or program maintained by a party and (ii) in Governmental Entity to which any individual who is currently Realty Income or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant its Subsidiaries contribute pursuant to applicable Law (the “Hanover Realty Income Benefit Plans”). Neither HanoverExcept as set forth on Section 3.2(j)(i) of the Realty Income Disclosure Letter, no Realty Income Benefit Plan is established or maintained outside of the United States or for the benefit of current or former employees, directors or individual independent contractors of Realty Income or any of its Subsidiaries nor any ERISA Affiliate thereof residing outside of the United States.
(ii) Realty Income has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true VEREIT a true, correct and complete copies copy of each Hanover Realty Income Benefit Plan and any amendments thereto and, with respect thereto, if applicable, (or if the plan is not a written planA) all amendments, a description thereof), any related trust (or other funding vehicle) agreements, summary plan descriptions and insurance Contracts, (B) the most recent annual reports or summaries required to be prepared or report (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) filed under ERISA or with the Code IRS and the most recent actuarial report or other financial statement relating to such Realty Income Benefit Plan, (C) the most recent determination or opinion letter received from the IRS with respect for such Realty Income Benefit Plan and (D) any notice to each such plan intended to qualify under Section 401 or from the IRS or any office or Representative of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsDepartment of Labor relating to any unresolved compliance issues in respect of such Realty Income Benefit Plan.
(biii) Except as would notnot have, or would not reasonably be expected to have, individually or in the aggregate, a Realty Income Material Adverse Effect, (A) each Realty Income Benefit Plan has been maintained and administered in compliance with its terms and with applicable Law, including, but not limited to, ERISA and the Code and in each case the regulations promulgated thereunder, (B) each Realty Income Benefit Plan intended to be “qualified” under Section 401(a) of the Code has received a favorable determination or opinion letter as to its qualification from the IRS or is entitled to rely on an advisory or opinion letter as to its qualification issued with respect to an IRS approved master and prototype or volume submitter plan, and there are no existing circumstances or any events that have occurred that would reasonably be expected to result adversely affect the qualified status of any such plan, (C) neither Realty Income nor its Subsidiaries has engaged in a material liability to Hanovertransaction that has resulted in, (i) neither Hanover nor or could result in, the assessment of a civil penalty upon Realty Income or any of its ERISA Affiliates has incurred any liability under Title IV or Subsidiaries pursuant to Section 302 502(i) of ERISA or under a Tax imposed pursuant to Section 412 4975 or 4976 of the Code that has not been satisfied in full, and (iiD) no condition exists there does not now exist, nor do any circumstances exist that would reasonably be expected to result in, any Controlled Group Liability that would be a liability of Realty Income or any of its Subsidiaries, (E) all payments required to be made by or with respect to each Realty Income Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Realty Income or its Subsidiaries in Hanover incurring accordance with the provisions of each of the Realty Income Benefit Plans and applicable Law and (F) there are no pending or, to Realty Income’s knowledge, threatened claims by or on behalf of any such liabilityRealty Income Benefit Plan, by any employee or beneficiary covered under any Realty Income Benefit Plan or otherwise involving any Realty Income Benefit Plan (other than routine claims for benefits).
(iiv) No Hanover Benefit Plan is None of Realty Income, any of its Subsidiaries or any other entity (whether or not incorporated) that, together with Realty Income or a Subsidiary of Realty Income, would be treated as a single employer under Section 414 of the Code or Section 4001(b) of ERISA, maintains, contributes to, or participates in, or has ever during the past six (6) years maintained, contributed to, or participated in, or otherwise has any obligation or liability with respect to: (A) a plan subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (B) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer plan” (as defined in Section 413(c) of the Code) or a “multiemployer pension plan,” (as defined in Section 3(37) of ERISA and (ii) none of HanoverERISA), or (C) any ERISA Affiliate thereof has made plan or suffered a “complete withdrawal” arrangement which provides for retiree medical or a “partial withdrawal,” welfare benefits, except as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanoverrequired by applicable Law.
(dv) Except as would not, individually or in Neither the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated execution and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws delivery of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, nor the consummation of the transactions contemplated by this Agreement shall not hereby (either alone or in conjunction with any other event) will (A) result by itself in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of Indebtedness or with the passage otherwise) becoming due to any current or former director, employee or other service provider of time Realty Income or its Subsidiaries under any Realty Income Benefit Plan or otherwise, (B) increase any benefits otherwise payable or trigger any other obligation under any Realty Income Benefit Plan, (C) result in the payment or any acceleration of the time of payment, funding or vesting of any amountsuch benefits or (D) result in any limitation on the right of Realty Income or any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Realty Income Benefit Plan or related trust. No Realty Income Benefit Plan provides for, and neither Realty Income nor any of its Subsidiaries is otherwise obligated to provide, the accrual gross-up or acceleration reimbursement of any benefit Taxes under Section 409A or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in 4999 of the aggregate, reasonably be expected to result in a material liability to HanoverCode.
Appears in 2 contracts
Samples: Merger Agreement (Realty Income Corp), Merger Agreement (VEREIT Operating Partnership, L.P.)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, With respect to each benefit plan maintained or contributed to by or required to be contributed to by Hanover or any covering the employees of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant Avicena (the “Hanover Avicena Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof Avicena has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco AVN a true and complete copies correct copy of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, A) the most recent annual reports report (Form 5500) filed with the IRS, (B) such Avicena Benefit Plan, (C) each trust agreement, insurance, annuity, contract or summaries required other funding agreement relating to be prepared such Avicena Benefit Plan, (D) the most recent summary plan description for each Avicena Benefit Plan for which a summary plan description is required, (E) the most recent actuarial or filed under ERISA financial report on any Avicena Benefit Plan that is a self-funded welfare plan, (F) the most recent actuarial report or the Code and valuation relating to an Avicena Benefit Plan subject to Title IV of ERISA, (G) the most recent determination letter received from issued by the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Avicena Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation qualified under Section 401(a) of the Code. The Draft Prospectus contains a true and complete list of all Avicena Benefit Plans.
(ii) Each Avicena Benefit Plan, respectivelyother than a multiemployer plan, and each trust maintained that purports to be a qualified plan under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9401(a) of the Code has satisfied is so qualified. All of the Avicena Benefit Plans that constitute benefit plans subject to ERISA have been maintained in compliance in all material respects with the applicable requirements of ERISA, and all such Avicena Benefit Plans subject to the Code have been maintained in compliance in all material respects with the applicable requirements andof the Code. Those Avicena Benefit Plans that are defined benefit plans meet the minimum funding standards set forth in ERISA and the Code and the assets of such plans equal or exceed the present value of accrued benefits under such plans as of the most recent plan valuation date. All material notices, reports and other filings required under applicable law to be given or made to or with any Governmental Entity with respect to the Avicena Benefit Plans have been timely filed or delivered.
(iii) With respect to the Avicena Benefit Plans, individually and in any such casethe aggregate, no event has occurred and, to the knowledge of Avicena, there exists no condition or condition set of circumstances in connection with which Avicena is known subject to exist any liability that would is reasonably be expected likely to adversely affect such tax-qualified status have a material adverse effect on Avicena (except liability for any such Hanover Benefit Plan benefits claims and funding obligations payable in the ordinary course) under ERISA, the Code or any such trustother applicable law or regulation.
(fiv) No Hanover Benefit Plan is maintained outside the jurisdiction True and complete copies of the United States, or covers any employee residing or working outside Avicena Stock Plan as in effect on the United Statesdate hereof have been made available to AVN.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 2 contracts
Samples: Merger Agreement (Avicena Group, Inc.), Merger Agreement (Avicena Group, Inc.)
Benefit Plans. (a) Section 5.13(a) Set forth on Schedule 2.10 is a list of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, pension, profit-sharing, retirement, stock purchase, stock option (or other equitystock-basedbased compensation, severance benefits, salary continuation, salary in lieu of notice, hospitalization or other medical, life or other insurance plan relating to Seller's and the Subsidiaries' businesses, employees, officers and directors, including any policy, plan, program or agreement that provides for the payment of similar benefits (collectively, the "Benefit Plans"), severancemaintained, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained sponsored or contributed to by Seller or required to be contributed to by Hanover or any of its Subsidiaries or to under which Hanover Seller or any of its Subsidiaries is a party and have any present or future material obligations or material liability on behalf of Seller's or its Subsidiaries' current or former employees, officers or directors, or their dependents or beneficiaries (ii) in which any individual who is currently or has been an officercollectively, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”"Affected Persons"). Neither HanoverTo the knowledge of Seller, any the Benefit Plans are in compliance in all material respects with all applicable requirements of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal planthe Employee Retirement Income Security Act of 1974, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto as amended (or if the plan is not a written plan, a description thereof"ERISA"), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code other applicable laws and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not have been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all material respects in accordance with its their terms and applicable lawsuch laws, including, but not limited to, ERISA, except where the Code and the laws of any applicable foreign jurisdiction. Except as failure to so comply would not result in have a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely madeMaterial Adverse Effect. There are no pending or, to Hanover’s Knowledgethe best knowledge of Seller, threatened claims byand no pending or, on behalf to the best knowledge of or against Seller, threatened litigation with respect to any of the Hanover Benefit Plans or any assets thereof, other than routine ordinary and usual claims for benefits by participants and beneficiaries. All contributions made or required to be made under such plansany Benefit Plan meet the requirements for deductibility under the Code in all material respects, that, if adversely determined could, individually and all contributions that are required to have been made or to be made prior to the Closing have been made or will be made. No Benefit Plan is a "multiemployer plan" (as defined in section 4001(a)(3) of ERISA); and neither the aggregate, reasonably be expected Seller nor any of its Subsidiaries has sponsored or contributed to result any "multiemployer plan." No event or condition has occurred in a Material Adverse Effect on Hanover connection with which Seller or any of its Subsidiaries and no matter is pending (other than routine qualification determination filingsor could be subject to any material liability, copies of which have been furnished to Xxxxxx and Spinco encumbrance or will be promptly furnished to Xxxxxx and Spinco when made) lien with respect to any of the Hanover Benefit Plans before the IRSPlan under ERISA, the United States Department of Labor Code or the PBGC that would, individually any other applicable law or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended agreement or arrangement pursuant to satisfy the requirements of Section 501(c)(9) of the Code has satisfied or under which Seller or its Subsidiaries are required to indemnify any person against such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trustliability.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 2 contracts
Samples: Stock Purchase Agreement (SPS Transaction Services Inc), Stock Purchase Agreement (SPS Transaction Services Inc)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredWith respect to each Benefit Plan under which any employee or former employee of Nara or any of its Subsidiaries has any present or future right to benefits, and which is maintained or contributed to or required to be contributed to by Hanover Nara or any of its Subsidiaries or to under which Hanover Nara or any of its Subsidiaries is a party and (ii) in which has any individual who is currently present or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant future liability (the “Hanover Nara Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof Nara has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true Center Financial a true, correct and complete copies copy of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, A) the most recent annual reports or report (Form 5500) filed with the IRS and, where applicable, the related audited financial statements thereof, (B) such Nara Benefit Plan and all related amendments thereto, (C) each trust agreement relating to such Nara Benefit Plan and all related amendments thereto, (D) the most recent summary plan description for each Nara Benefit Plan for which a summary plan description is required by ERISA and, for Benefit Plans not subject to ERISA, any relevant summaries required to be prepared or filed under ERISA or the Code and (E) the most recent determination letter received from issued by the IRS with respect to each such plan intended to qualify any Nara Benefit Plan qualified under Section 401 401(a) of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(bii) Except as would notNone of the Nara Benefit Plans are subject to Title IV of ERISA.
(iii) Neither Nara, individually or in the aggregateits Subsidiaries, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its their ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and with respect to a multiemployer plan (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA) nor any liability or contingent liability for providing, under any Nara Benefit Plan or otherwise, any post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and (ii) none Section 4980B of Hanover, the Code or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanoverapplicable state law.
(div) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Each Nara Benefit Plan that is a nonqualified deferred compensation subject to Section 409A of the Code has been operated and administered in all respects good faith compliance with, and complies in accordance with its terms and applicable lawform with, including, but not limited to, ERISA, Section 409A of the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made guidance with respect thereto from the period beginning January 1, 2005 through the date hereof.
(v) With respect to any Hanover the Nara Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldPlans, individually or and in the aggregate, reasonably be expected no event has occurred and, to result the knowledge of Nara, there exists no condition or set of circumstances in a Material Adverse Effect on Hanover connection with which Nara or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will could be promptly furnished to Xxxxxx and Spinco when made) with respect subject to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that liability which would, individually or in the aggregate, reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Nara under ERISA, the Code or any other Applicable Legal Requirements.
(evi) Each Hanover Benefit Plan intended True and complete copies of the Nara Stock Plans as in effect on the date hereof, and copies of all outstanding awards agreements relating thereto, have been provided or made available to be “qualified” within the meaning of Center Financial.
(vii) Except as set forth in Section 401(a3.2(k)(vii) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such caseNara Disclosure Schedule, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Nara Benefit Plan or Nara Stock Plan exists that could result in the payment to any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction present or former employee of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement Nara or any Executed Transaction Agreement, the consummation Subsidiary of Nara of any money or other property or accelerate or provide any other rights or benefits to any present or former employee of Nara or any Subsidiary of Nara as a result of the transactions contemplated by this Agreement shall Agreement, whether or not result by itself such payment would constitute a parachute payment within the meaning of Section 280G of the Code.
(viii) Except as set forth in Section 3.2(k)(viii) of the Nara Disclosure Schedule, none of the assets of any Nara Benefit Plan are invested in employer securities or with employer real property.
(ix) With respect to each of the passage of time in Nara Benefit Plans, all contributions or premium payments due and payable on or before the Closing Date have been timely made, and, to the extent not presently payable, appropriate reserves have been established for the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase and properly accrued in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoveraccordance with customary accounting practices.
Appears in 2 contracts
Samples: Merger Agreement (Center Financial Corp), Merger Agreement (Nara Bancorp Inc)
Benefit Plans. (a) Section 5.13(a) Schedule 3.14 contains a list and brief description of the Hanover Disclosure Letter lists each material “all "employee pension benefit plan” plans" (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), maintained or contributed to by HyperFeed for the benefit of any officers or employees of the Business ("HyperFeed Pension Plans") and all "employee welfare benefit plans" (as defined in Section 3(1) of ERISA), and all other material employee benefit, bonus, incentivestock option, stock purchase, deferred compensation, stock option (compensation plans or arrangements and other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and employee fringe benefit plansplans maintained, programs or contributed to, by HyperFeed for the benefit of any officers or employees of the Business (all the foregoing, including HyperFeed Pension Plans, being herein called "HyperFeed Benefit Plans"). HyperFeed has made available to the Company true, complete and arrangements, whether or not subject to ERISA and, whether written or oral correct copies of (i) sponsoredeach HyperFeed Benefit Plan (or, maintained or contributed to or required to be contributed to by Hanover or in the case of any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and unwritten HyperFeed Benefit Plans, descriptions thereof), (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the two most recent annual reports or summaries required to be prepared or on Form 5500 (including all schedules and attachments thereto) filed under ERISA or with the Code and the most recent determination letter received from the IRS Internal Revenue Service with respect to each HyperFeed Benefit Plan (if any such plan intended to qualify under Section 401 of report was required), (iii) the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements summary plan description for each HyperFeed Benefit Plan for which such a summary plan description is required and (Civ) actuarial valuation reportseach trust agreement, group annuity contract or other funding and financing arrangement relating to any HyperFeed Benefit Plan.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Each HyperFeed Benefit Plan has been operated and administered in all material respects in accordance with its terms terms. HyperFeed and all HyperFeed Benefit Plans are in compliance in all material respects with the applicable law, including, but not limited to, provisions of ERISA, the Code Code, all other Applicable Laws and the laws of any all applicable foreign jurisdictioncollective bargaining agreements. Except as would not result set forth in a material liability to HanoverSchedule 3.14, all contributions material reports, returns and similar documents with respect to HyperFeed Benefit Plans required to be made filed with respect any Governmental Entity or distributed to any Hanover HyperFeed Benefit Plan participant have been duly and timely madefiled or distributed. There Except as set forth in Schedule 3.14, there are no Proceedings pending or, to Hanover’s Knowledgethe knowledge of HyperFeed, threatened against or involving any HyperFeed Benefit Plan and there are no investigations by any Governmental Entity or other claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than (except routine claims for benefits under such plans, that, if adversely determined could, individually or payable in the aggregatenormal operation of HyperFeed Benefit Plans) pending or, reasonably be expected to result in a Material Adverse Effect on Hanover the knowledge of HyperFeed, threatened against or involving any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished HyperFeed Benefit Plan or asserting any rights to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to benefits under any of the Hanover HyperFeed Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverPlan.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(gc) Except as otherwise provided set forth in Schedule 3.14, no employee or contemplated by this Agreement former employee of the Business will become entitled to any bonus, severance, job security or similar benefit or any Executed Transaction Agreement, the consummation enhanced benefit solely as a result of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverhereby.
Appears in 2 contracts
Samples: Contribution and Separation Agreement (Pcquote Com Inc), Contribution and Separation Agreement (Pcquote Com Inc)
Benefit Plans. (a) Section 5.13(a) 4.16 of the Hanover ReShape Disclosure Letter Schedule lists each all material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject ReShape Plans. Each ReShape Plan that is intended to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required meet the requirements to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed qualified under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter or is covered by a favorable opinion letter from the IRS stating Internal Revenue Service that they remains current to the effect that the form of such ReShape Plan is so qualified, and ReShape is not aware of any facts or circumstances that would reasonably be expected to jeopardize the trusts maintained thereunder are exempt from taxation qualification of such ReShape Plan. Each ReShape Plan complies in form and in operation in all material respects with the requirements of the Code, ERISA and other applicable Law, and ReShape has not become subject to any material liability by reason of (i) a failure to make any contribution to a ReShape Plan intended to be qualified under Section 401(a) of the CodeCode within the time prescribed for the contribution under ERISA or (ii) a breach of fiduciary duty or prohibited transaction under ERISA or any other applicable Law, respectivelyin each case with respect to a ReShape Plan.
(b) With respect to each material ReShape Plan, ReShape has made available true and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) complete copies of the Code has satisfied such requirements andfollowing (as applicable) prior to the date hereof: (i) the plan document, in including all amendments thereto; (ii) the summary plan description along with all summaries of material modifications thereto; (iii) all related trust instruments or other funding-related documents; (iv) a copy of the most recent financial statements for the plan; (v) a copy of all material correspondence with any such case, no event has occurred Governmental Body relating to a ReShape Plan received or condition is known to exist that sent within the last two years and (vi) the most recent determination or opinion letter.
(c) Except as would not reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldhave, individually or in the aggregate, reasonably a Material Adverse Effect on ReShape, with respect to the ReShape Plans, (i) all required contributions to, and premiums payable in respect of, such ReShape Plan have been made or, to the extent not required to be expected made on or before the date hereof, have been properly accrued on ReShape’s financial statements in accordance with GAAP, and (ii) there are no actions, audits, suits or claims pending or, to ReShape’s Knowledge, threatened, other than routine claims for benefits.
(d) No ReShape Plan is, and neither ReShape nor any of its ERISA Affiliates has at any time in the past six years sponsored or contributed to, or has or has had any liability or obligation whether fixed or contingent, with respect to (i) a “multiemployer plan” (within the meaning of Section 3(37) of ERISA), (ii) a single employer plan or other pension plan that is subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code, (iii) a “multiple employer plan” (within the meaning of Section 413(c) of the Code), or (iv) a multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA). Neither ReShape nor its Subsidiaries has any obligation to provide a current or former employee or other service provider (or any spouse or dependent thereof) any life insurance or medical or health benefits after his or her termination of employment with ReShape or any of its Subsidiaries, other than as required under Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code or any similar state Law and coverage through the end of the month of termination of employment.
(e) Except as otherwise contemplated by this Agreement, neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated hereby will, either individually or together with the occurrence of some other event (including a termination of employment or service), (i) result in any payment (including severance, bonus or other similar payment) becoming due to any current or former director, employee or individual independent contractor, (ii) increase or otherwise enhance any benefits or compensation otherwise payable to any such individual, (iii) result in the acceleration of the time of payment or vesting of any benefits under any ReShape Plan, (iv) require ReShape or its Subsidiaries to set aside any assets to fund any benefits under a material liability ReShape Plan or result in the forgiveness in whole or in part of any outstanding loans made by ReShape to Hanoverany Person, or (v) result in the payment of any “excess parachute payment” within the meaning of Code Section 280G or in the imposition of an excise Tax under Code Section 4999 or Section 409A (or any corresponding provision of state, local or foreign Tax law). ReShape has no obligation to pay any gross-up in respect of any Tax under Code Section 4999 or Section 409A (or, in either case, any corresponding provision of state, local or foreign Tax law).
Appears in 2 contracts
Samples: Merger Agreement (ReShape Lifesciences Inc.), Merger Agreement (ReShape Lifesciences Inc.)
Benefit Plans. (a) Section 5.13(a5.12(a) of the Hanover Del Monte Disclosure Letter lists each material “"employee benefit plan” " (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover Del Monte or any of its Subsidiaries or to which Hanover Del Monte or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover Del Monte (a “Hanover "Del Monte Employee”") is a participant (the “Hanover "Del Monte Benefit Plans”"). Neither HanoverDel Monte, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Del Monte Benefit Plan that would affect any Hanover Del Monte Employee except in the ordinary course of business. Hanover Del Monte has heretofore delivered or made available to Xxxxxx Heinz and Spinco true and complete copies of each Hanover Del Monte Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverMaterial Adverse Effect on Del Monte, (i) neither Hanover Del Monte nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover Del Monte incurring any such liability.
(i) No Hanover Del Monte Benefit Plan is a “"multiemployer pension plan,” " as defined in Section 3(37) of ERISA and (ii) none of HanoverDel Monte, or any ERISA Affiliate thereof has made or suffered a “"complete withdrawal” " or a “"partial withdrawal,” " as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Del Monte.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverMaterial Adverse Effect on Del Monte, each Hanover Del Monte Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to HanoverDel Monte, all contributions required to be made with respect to any Hanover Del Monte Benefit Plan have been timely made. There are no pending or, to Hanover’s Del Monte's Knowledge, threatened claims by, on behalf of or against any of the Hanover Del Monte Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover Del Monte or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx Heinz and Spinco or will be promptly furnished to Xxxxxx Heinz and Spinco when made) with respect to any of the Hanover Del Monte Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Del Monte.
(e) Each Hanover Del Monte Benefit Plan intended to be “"qualified” " within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Del Monte Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Del Monte Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed other Transaction Agreement, the consummation of the transactions contemplated by this Agreement or the Separation Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Del Monte.
Appears in 2 contracts
Samples: Merger Agreement (Heinz H J Co), Merger Agreement (Del Monte Foods Co)
Benefit Plans. (a) Section 5.13(a) None of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, plans maintained or contributed to or required to be contributed to at any time by Hanover the Borrower or any of its Subsidiaries Subsidiary or to the trusts created thereunder has engaged in a prohibited transaction or violated any Foreign Benefit Law which Hanover or could subject any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional such employee benefit plan or modify trust to a material tax or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered penalty on prohibited transactions imposed under Internal Revenue Code Section 4975 or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 any Foreign Benefit Law; (ii) None of the Code employee benefit plans maintained at any time by the Borrower or any Subsidiary which are employee pension benefit plans and which are subject to Title IV of ERISA or any Foreign Benefit Law or the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except trusts created thereunder has been terminated so as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability the Borrower under Title IV or Section 302 of ERISA or under Section 412 any Foreign Benefit Law nor has any such employee benefit plan of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, Borrower or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a Subsidiary incurred any material liability to Hanover.
(d) Except as would notthe Pension Benefit Guaranty Corporation established pursuant to ERISA or any other Person exercising similar duties and functions under any Foreign Benefit Law, individually other than for required insurance premiums which have been paid or in are not yet due and payable; neither the aggregate, reasonably be expected Borrower nor any Subsidiary has withdrawn from or caused a partial withdrawal to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made occur with respect to any Hanover Benefit Multi-employer Plan resulting in any material assessed and unpaid withdrawal liability; the Borrower and the Subsidiaries have been timely made. There made or provided for all contributions in all material amounts to all such employee pension benefit plans which they maintain and which are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any required as of the Hanover Benefit Plans or end of the most recent fiscal year under each such plan; neither the Borrower nor any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or Subsidiary has incurred any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) material accumulated funding deficiency with respect to any such plan, whether or not waived; nor has there been any reportable event, or other event or condition, which presents a material risk of termination of any such employee benefit plan by such Pension Benefit Guaranty Corporation or any other Person exercising similar duties and functions under any Foreign Benefit Law; (iii) The present value of all vested accrued benefits under the employee pension benefit plans which are subject to Title IV of ERISA or any Foreign Benefit Law, maintained by the Borrower or any Subsidiary, did not, as of the Hanover Benefit Plans before the IRSmost recent valuation date for each such plan, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in exceed by a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within amount the meaning of Section 401(a) then current value of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) assets of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended such employee benefit plans allocable to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
benefits; (f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 2 contracts
Samples: Credit Agreement (Proffitts Inc), Credit Agreement (Proffitts Inc)
Benefit Plans. (a) Schedule 3.13(a) sets forth a list of each Company Benefit Plan. A copy of each Company Benefit Plan, and all contracts relating thereto, or to the funding thereof, has been supplied to Purchaser, along with an accurate written description of each Company Benefit Plan that is not in written form. To the extent applicable, the most recent annual report, actuarial report, accountant’s opinion of the plan’s financial statements, summary plan description, summaries of material modification and summary of benefits and coverage, IRS determination or opinion letter with respect to each Company Benefit Plan, and a current schedule of assets held with respect to any funded Company Benefit Plan, has been supplied to Purchaser.
(b) All Company Benefit Plans comply in form with all requirements of applicable Law and have been administered in all material respects in accordance with their terms and with all applicable requirements of Law, and no event has occurred that will or would reasonably be expected to cause any such Company Benefit Plan to fail to comply with such requirements and no notice has been issued by any Governmental Authority questioning or challenging such compliance. All Company Benefit Plans that are subject to Section 5.13(a409A of the Code comply with Section 409A in form and have been administered in accordance with their terms and Section 409A of the Code.
(c) Each Company Benefit Plan that is intended to be a qualified employee pension benefit plan is the subject of a favorable determination or opinion letter issued by the IRS with respect to the qualified status of such plan under Section 401(a) of the Hanover Disclosure Letter lists each material Code and the tax-exempt status of any trust that forms a part of such plan under Section 501(a) of the Code and no event has occurred that will or would reasonably be expected to give rise to disqualification of any such plan under such sections. None of the assets of any Company Benefit Plan are invested in employer securities or employer real property.
(d) There have been no “prohibited transactions” (as described in Section 406 of ERISA or Section 4975 of the Code) with respect to any Company Benefit Plan and none of the Shareholders, the Company or any of their respective ERISA Affiliates has engaged in any prohibited transaction. There are no Proceedings (other than routine claims for benefits) pending or threatened involving any Company Benefit Plan or the assets thereof and no facts exist that could give rise to any such Proceedings (other than routine claims for benefits).
(e) There have been no acts or omissions by the Shareholders, the Company or any of their respective ERISA Affiliates that have given rise to or would reasonably be expected to give rise to interest, fines, penalties, taxes or related charges under Section 502 of ERISA or Chapters 43, 47, 68 or 100 of the Code for which the Company or any of its respective ERISA Affiliates may be liable or any participant in any Company Benefit Plan that is a nonqualified deferred compensation plan (within the meaning of Section 409A of the Code) may be liable.
(f) Except as set forth on Schedule 3.13(f), none of the execution and delivery of this Agreement or the consummation of the Transactions (either alone or in combination with any other event) will (i) entitle any current or former director, officer, employee or independent contractor of the Company to any compensation or benefit plan” under any Company Benefit Plan or otherwise, (ii) accelerate the time of payment or vesting, or trigger any payment or funding, of any compensation or benefits or trigger any other obligation under any Company Benefit Plan or otherwise, (iii) increase the amount of compensation or benefits due to any current or former director, officer, employee or independent contractor of the Company (or their beneficiaries), or (iv) result in any breach or violation of, default under or limit the Company’s right to amend, modify or terminate any Company Benefit Plan. Except as disclosed on Schedule 3.13(f), no payments or benefits contemplated by the Company Benefit Plans or otherwise would, in the aggregate, constitute excess parachute payments (as defined in Section 3(3280G of the Code (without regard to subsection (b)(4) thereof)). Neither the Company nor any of ERISA)its ERISA Affiliates is a nonqualified entity within the meaning of Section 457A of the Code. No Company Benefit Plan or any contract, and all other material employee benefitagreement, bonusplan, incentivepolicy, deferred compensationor arrangement with any employee, stock option (officer, director, consultant or other equity-based)independent contractor of the Shareholders, severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover the Company or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (their respective ERISA Affiliates provides for a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, gross-up” or similar payment in respect of any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment taxes that may become payable under Sections 409A or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 4999 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(bg) Except as would not, individually or in None of the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover Company nor any of its ERISA Affiliates has incurred now or within the last six (6) years had an obligation to contribute to, or any liability under Liability with respect to: (i) a plan subject to Title IV of ERISA, (ii) a Multiemployer Plan, (iii) a “multiple employer plan” within the meaning of Section 413(c) of the Code, (iv) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA, or Section 302 (v) any post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA or under and Section 412 4980B of the Code or applicable state Law at the sole cost of the individual.
(h) Actuarially adequate accruals for all obligations under the Company Benefit Plans are reflected in the Financial Statements and such obligations include a pro rata amount of the contributions that would otherwise have been made in accordance with past practices and applicable Law for the plan years that include the Closing Date.
(i) There has been no act or omission that would impair the ability of the Company and its Subsidiary (or any successor thereto) to unilaterally amend or terminate any Company Benefit Plan.
(j) With respect to each Company Benefit Plan which is a group health plan (as defined in Section 5001(b)(1) of the Code), the Company has complied, in all material respects, with the requirements of Section 4980B of the Code. The Company (i) has offered its full-time employees (as defined under Section 4980H of the Code and the underlying regulations and guidance) the ability to elect minimum essential coverage that provides minimum value and is affordable for themselves, such that there will not been satisfied in fullbe any liability or excise tax under Section 4980H(a) or (b) of the Code, and (ii) has met its reporting obligation under Sections 6055 and 6056 of the Code (as applicable). No event has occurred, and no condition exists conditions or circumstances exist, that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanoversubject the Company, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Company Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending orPlan, to Hanover’s Knowledge, threatened claims by, on behalf of penalties or against any of the Hanover Benefit Plans excise taxes under Sections 4980D or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) 4980H of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) or any other provision of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trustHealthcare Reform Laws.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 2 contracts
Samples: Contribution Agreement (Proficient Auto Logistics, Inc), Stock Purchase Agreement (Proficient Auto Logistics, Inc)
Benefit Plans. (ai) Section 5.13(a) of the Hanover Disclosure Letter lists With respect to each material employee benefit plan (including any “employee benefit plan” (”, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), ) and all other material employee stock purchase, stock option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, stock option (or compensation and other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe material employee benefit plans, programs and agreements, programs, policies or other arrangements, whether or not subject to ERISA andERISA, whether written formal or informal, oral or written, legally binding or not (i) sponsoredall the foregoing being herein called “Benefit Plans”), under which any employee or former employee of Center Financial or any of its Subsidiaries has any present or future right to benefits, and which is maintained or contributed to or required to be contributed to by Hanover Center Financial or any of its Subsidiaries or to under which Hanover Center Financial or any of its Subsidiaries is a party and (ii) in which has any individual who is currently present or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant future liability (the “Hanover Center Financial Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof Center Financial has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true Nara a true, correct and complete copies copy of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, A) the most recent annual reports or report (Form 5500) filed with the IRS and, where applicable, the related audited financial statements thereof, (B) such Center Financial Benefit Plan and all related amendments thereto, (C) each trust agreement relating to such Center Financial Benefit Plan and all related amendments thereto, (D) the most recent summary plan description for each Center Financial Benefit Plan for which a summary plan description is required by ERISA and, for Benefit Plans not subject to ERISA, any relevant summaries required to be prepared or filed under ERISA or the Code and (E) the most recent determination letter received from issued by the IRS with respect to each such plan intended to qualify any Center Financial Benefit Plan qualified under Section 401 401(a) of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(bii) Except as would notNone of the Center Financial Benefit Plans are subject to Title IV of ERISA.
(iii) Neither Center Financial, individually or in the aggregateits Subsidiaries, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its their ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and with respect to a multiemployer plan (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA) nor any liability or contingent liability for providing, under any Center Financial Benefit Plan or otherwise, any post-retirement medical or life insurance benefits, other than statutory liability for providing group health plan continuation coverage under Part 6 of Title I of ERISA and (ii) none Section 4980B of Hanover, the Code or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanoverapplicable state law.
(div) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Each Center Financial Benefit Plan that is a nonqualified deferred compensation subject to Section 409A of the Code has been operated and administered in all respects good faith compliance with, and complies in accordance with its terms and applicable lawform with, including, but not limited to, ERISA, Section 409A of the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made guidance with respect thereto from the period beginning January 1, 2005 through the date hereof.
(v) With respect to any Hanover the Center Financial Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldPlans, individually or and in the aggregate, reasonably be expected no event has occurred and, to result the knowledge of Center Financial, there exists no condition or set of circumstances in a Material Adverse Effect on Hanover connection with which Center Financial or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will could be promptly furnished to Xxxxxx and Spinco when made) with respect subject to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that liability which would, individually or in the aggregate, reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Center Financial under ERISA, the Code or any other Applicable Legal Requirements.
(evi) Each Hanover Benefit Plan intended True and complete copies of the Center Financial Stock Plans as in effect on the date hereof, and copies of all outstanding awards agreements relating thereto, have been provided or made available to be “qualified” within the meaning of Nara.
(vii) Except as set forth in Section 401(a3.1(k)(vii) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such caseCenter Financial Disclosure Schedule, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Center Financial Benefit Plan or Center Financial Stock Plan exists that could result in the payment to any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction present or former employee of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement Center Financial or any Executed Transaction Agreement, the consummation Subsidiary of Center Financial of any money or other property or accelerate or provide any other rights or benefits to any present or former employee of Center Financial or any Subsidiary of Center Financial as a result of the transactions contemplated by this Agreement shall Agreement, whether or not result by itself such payment would constitute a parachute payment within the meaning of Section 280G of the Code.
(viii) Except as set forth in Section 3.1(k)(viii) of the Center Financial Disclosure Schedule, none of the assets of any Center Financial Benefit Plan are invested in employer securities or with employer real property.
(ix) With respect to each of the passage of time in Center Financial Benefit Plans, all contributions or premium payments due and payable on or before the Closing Date have been timely made, and, to the extent not presently payable, appropriate reserves have been established for the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase and properly accrued in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoveraccordance with customary accounting practices.
Appears in 2 contracts
Samples: Merger Agreement (Nara Bancorp Inc), Merger Agreement (Center Financial Corp)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredWith respect to each material Diamond Benefit Plan, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or Diamond has been an officermade available, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or notupon request, to create any additional employee benefit plan or modify or change any existing Hanover Orion complete and accurate copies of (A) such Diamond Benefit Plan that would affect any Hanover Employee except in and, to the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the extent applicable, summary plan is not a written plan, a description thereof), any related trust (B) each trust, insurance, annuity or other funding vehiclecontract related thereto, (C) the most recent audited financial statements and actuarial or other valuation reports prepared with respect thereto, (D) the most recent annual reports or summaries report on Form 5500 required to be prepared or filed under ERISA or the Code and the most recent determination letter received from with the IRS with respect to each such plan intended to qualify under Section 401 of the Code thereto and the three most recent years (AE) the Form 5500s and attached Schedulesmost recently received IRS determination letter or opinion, (B) audited financial statements and (C) actuarial valuation reportsif applicable.
(bii) Except as would notas, individually or in the aggregate, would not reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Diamond, (iA) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 each of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Diamond Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan Plans has been operated and administered in all respects in accordance compliance with its terms and applicable lawin accordance with Applicable Laws, including, but not limited to, including ERISA, the Code and in each case the laws of any applicable foreign jurisdiction. Except as would regulations thereunder; (B) no Diamond Benefit Plan provides welfare benefits, including death or medical benefits (whether or not result in a material liability to Hanoverinsured), all contributions required to be made with respect to any Hanover current or former employees or directors of Diamond or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated by COBRA, or comparable U.S. state or foreign law; (C) all contributions or other amounts payable by Diamond or its subsidiaries as of the Effective Time pursuant to each Diamond Benefit Plan in respect of current or prior plan years have been timely made. There are no pending paid or, to Hanover’s Knowledgethe extent not yet due, have been accrued in accordance with GAAP; (D) neither Diamond nor any of its subsidiaries has engaged in a transaction in connection with which Diamond or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code; and (E) there are no pending, or to the knowledge of Diamond, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Hanover Diamond Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldtrusts related thereto.
(iii) Except as set forth on Section 4.2(j)(iii) of the Diamond Disclosure Letter or as, individually or in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect on Hanover Diamond, none of Diamond, any of its subsidiaries or any of its Subsidiaries their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the six years preceding the date of this Agreement contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and no matter is pending (other than routine qualification determination filingsnone of Diamond, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of its subsidiaries or any of their respective ERISA Affiliates has, within the Hanover Benefit Plans before the IRSpreceding six years, the United States Department withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of Labor or the PBGC that wouldERISA.
(iv) Except as, individually or in the aggregate, would not reasonably be expected to result in have a material liability to Hanover.
(e) Each Hanover Material Adverse Effect on Diamond, each of the Diamond Benefit Plan Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, (A) is so qualified and each trust maintained under there are no existing circumstances or any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-the qualified status for of any such Hanover Benefit Plan plan and (B) has received a favorable determination letter or any such trustopinion letter as to its qualification.
(fv) No Hanover Section 4.2(j)(v) of the Diamond Disclosure Letter sets forth each Diamond Benefit Plan that is maintained outside the jurisdiction subject to Section 302 or Title IV or Section 412, 430 or 4971 of the United StatesCode (each, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreementa “Diamond Title IV Plan”). With respect to each Diamond Title IV Plan, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldexcept for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Diamond, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (B) no such Diamond Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, (D) none of Diamond, any of its subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069, 4204(a) or 4212(c) of ERISA, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) has been or, to the knowledge of Diamond, is expected to be incurred by Diamond or any of its subsidiaries and (G) the PBGC has not instituted proceedings to terminate any such Diamond Title IV Plan. Except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Diamond, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability following the Closing of Diamond, any of its subsidiaries or any of their respective ERISA Affiliates. Since July 1, 2014, there has not been any material change in any actuarial or other assumption used to calculate funding obligations with respect to any Diamond Title IV Plan, or any material change in the manner in which contributions to any Diamond Title IV Plan are made or the basis on which such contributions are determined.
(vi) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of Diamond or its subsidiaries under any Diamond Benefit Plan or otherwise, (B) increase any benefits otherwise payable under any Diamond Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of any such benefits.
(vii) No person is entitled to receive any additional payment (including any Tax gross-up or other payment) from Diamond or any of its subsidiaries as a material liability result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(viii) Except as, individually or in the aggregate, would not reasonably be expected to Hanoverhave a Material Adverse Effect on Diamond, all Diamond Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment, and (C) that are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Samples: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Dow Chemical Co /De/)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, None of the employee benefit plans maintained or contributed to or required to be contributed to at any time by Hanover the Borrower or any of its Subsidiaries Subsidiary or to the trusts created thereunder has engaged in a prohibited transaction or violated any Foreign Benefit Law which Hanover or could subject any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional such employee benefit plan or modify trust to a material tax or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered penalty on prohibited transactions imposed under Internal Revenue Code Section 4975 or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 any Foreign Benefit Law; (ii) None of the Code employee benefit plans maintained at any time by the Borrower or any Subsidiary which are employee pension benefit plans and which are subject to Title IV of ERISA or any Foreign Benefit Law or the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except trusts created thereunder has been terminated so as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability the Borrower under Title IV or Section 302 of ERISA or under Section 412 any Foreign Benefit Law nor has any such employee benefit plan of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, Borrower or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a Subsidiary incurred any material liability to Hanover.
(d) Except as would notthe Pension Benefit Guaranty Corporation established pursuant to ERISA or any other Person exercising similar duties and functions under any Foreign Benefit Law, individually other than for required insurance premiums which have been paid or in are not yet due and payable; neither the aggregate, reasonably be expected Borrower nor any Subsidiary has withdrawn from or caused a partial withdrawal to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made occur with respect to any Hanover Benefit Multi-employer Plan resulting in any material assessed and unpaid withdrawal liability; the Borrower and the Subsidiaries have been timely made. There made or provided for all contributions in all material amounts to all such employee pension benefit plans which they maintain and which are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any required as of the Hanover Benefit Plans or end of the most recent fiscal year under each such plan; neither the Borrower nor any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or Subsidiary has incurred any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) material accumulated funding deficiency with respect to any of the Hanover Benefit Plans before the IRSsuch plan, the United States Department of Labor whether or the PBGC that wouldnot waived; nor has there been any reportable event, individually or in the aggregateother event or condition, reasonably be expected to result in which presents a material liability to Hanover.
(e) Each Hanover risk of termination of any such employee benefit plan by such Pension Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they Guaranty Corporation or any other Person exercising similar duties and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained functions under any Hanover Foreign Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.Law;
Appears in 2 contracts
Samples: Credit Agreement (Saks Inc), Credit Agreement (Saks Inc)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredWith respect to each material MWV Benefit Plan, maintained MWV has made available to RockTenn complete and accurate copies of (A) such MWV Benefit Plan (or, with respect to any such arrangement that is not in writing, a written description of the material terms thereof), including any amendment thereto, and to the extent applicable, summary plan description thereof, (B) each trust, insurance, annuity or contributed to other funding contract related thereto, (C) the two most recent audited financial statements and actuarial or other valuation reports prepared with respect thereto, (D) the two most recent annual reports on Form 5500 required to be contributed filed with the Internal Revenue Service (the “IRS”) with respect thereto and the two most recent annual information returns required to by Hanover be filed with any Governmental Entity, (E) the most recently received IRS determination letter or opinion and (F) all material correspondence with a Governmental Entity. Except as specifically provided in the foregoing documents made available to RockTenn, there are no amendments to any material MWV Benefit Plans that have been adopted or approved nor has MWV or any of its Subsidiaries subsidiaries undertaken to make any such amendments or to which Hanover adopt or approve any of its Subsidiaries is a party and new material MWV Benefit Plans.
(ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would notas, individually or in the aggregate, would not reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on MWV, (iA) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 each of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover MWV Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan Plans has been operated and administered in all respects in accordance compliance with its terms and applicable lawin accordance with Applicable Laws, including, but not limited to, including ERISA, the Code and in each case the laws of any applicable foreign jurisdiction. Except as would regulations thereunder; (B) no MWV Benefit Plan provides welfare benefits, including death or medical benefits (whether or not result in a material liability to Hanoverinsured), all contributions required to be made with respect to any Hanover current or former employees or directors of MWV or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or comparable U.S. state or foreign law; (C) all contributions or other amounts payable by MWV or its subsidiaries as of the Effective Time pursuant to each MWV Benefit Plan in respect of current or prior plan years have been timely made. There are no pending paid or, to Hanover’s Knowledgethe extent not yet due, have been accrued in accordance with GAAP; (D) neither MWV nor any of its subsidiaries has engaged in a transaction in connection with which MWV or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code; and (E) there are no pending, or to the knowledge of MWV, threatened or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Hanover MWV Benefit Plans or any assets thereoftrusts related thereto.
(iii) Section 4.1(j)(iii) of the MWV Disclosure Letter sets forth each Multiemployer Plan or Multiple Employer Plan to which MWV, other than routine claims for benefits under such plansany of its subsidiaries or any of their respective ERISA Affiliates contributes or is obligated to contribute, thator within the six years preceding the date of this Agreement, if adversely determined couldcontributed, or was obligated to contribute. Except as set forth on Section 4.1(j)(iii) of the MWV Disclosure Letter and as, individually or in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect on Hanover MWV, none of MWV, any of its subsidiaries or any of its Subsidiaries their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the six years preceding the date of this Agreement contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and no matter is pending (other than routine qualification determination filingsnone of MWV, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of its subsidiaries or any of their respective ERISA Affiliates has, within the Hanover Benefit Plans before the IRSpreceding six years, the United States Department withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of Labor or the PBGC that wouldERISA.
(iv) Except as, individually or in the aggregate, would not reasonably be expected to result in have a material liability to Hanover.
(e) Each Hanover Material Adverse Effect on MWV, each of the MWV Benefit Plan Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, (A) is so qualified and each trust maintained under there are no existing circumstances or any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-the qualified status for of any such Hanover Benefit Plan plan and (B) has received a favorable determination letter or any such trustopinion letter as to its qualification.
(fv) No Hanover Section 4.1(j)(v) of the MWV Disclosure Letter sets forth each MWV Benefit Plan that is maintained outside the jurisdiction subject to Section 302 or Title IV or Section 412, 430 or 4971 of the United StatesCode (each, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreementa “MWV Title IV Plan”). With respect to each MWV Title IV Plan, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldexcept for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on MWV, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (B) no such MWV Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) the present value of accrued benefits under such MWV Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such MWV Title IV Plan’s actuary with respect to such MWV Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such MWV Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, (E) none of MWV, any of its subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069, 4204(a) or 4212(c) of ERISA, (F) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (G) no liability (other than for premiums to the PBGC) has been or, to the knowledge of MWV, is expected to be incurred by MWV or any of its subsidiaries and (H) the PBGC has not instituted proceedings to terminate any such MWV Title IV Plan. Except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on MWV, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability following the Closing of MWV, any of its subsidiaries or any of their respective ERISA Affiliates. Since July 1, 2014, there has not been any material change in any actuarial or other assumption used to calculate funding obligations with respect to any MWV Title IV Plan, or any material change in the manner in which contributions to any MWV Title IV Plan are made or the basis on which such contributions are determined.
(vi) Except as provided by this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of MWV or its subsidiaries under any MWV Benefit Plan or otherwise, (B) increase any benefits otherwise payable under any MWV Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of any such benefits.
(vii) No person is entitled to receive any additional payment (including any Tax gross-up or other payment) from MWV or any of its subsidiaries as a material liability result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(viii) Except as, individually or in the aggregate, would not reasonably be expected to Hanoverhave a Material Adverse Effect on MWV, all MWV Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment, and (C) that are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Samples: Business Combination Agreement (MEADWESTVACO Corp), Business Combination Agreement (Rock-Tenn CO)
Benefit Plans. (a) Section 5.13(a) Comply in all material respects with the applicable provisions of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral with respect to any Canadian Pension Plan, the ITA and any applicable provincial pension legislation, and furnish to the Agents, the Administrative Agent, the Facing Agent and each Lender (i) sponsoredas soon as possible after, maintained and in any event within 30 days after any Responsible Officer of either Borrower or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof either knows or has reason to know that any commitment Reportable Event has occurred that alone or formal plan, whether legally binding or not, to create together with any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, Reportable Event could reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor of either Borrower or any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 the Subsidiaries to the PBGC in an aggregate amount exceeding U.S.$25,000,000, a copy of the Code that has notice of such event required to be given to the PBGC or, if notice is not been satisfied so required, a statement of a Financial Officer of each Borrower, as the case may be, setting forth in fullreasonable detail the nature of such event and the action proposed to be taken with respect thereto, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring promptly after receipt thereof, a copy of any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, notice either Borrower or any ERISA Affiliate may receive from the PBGC relating to the intention of the PBGC to terminate any Plan or Plans (other than a Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code) or to appoint a trustee to administer any Plan or Plans, (iii) within 10 days after the due date for filing with the PBGC pursuant to Section 412(n) of the Code of a notice of failure to make a required installment or other payment with respect to a Plan, a copy of such notice and a statement of a Financial Officer of the applicable Borrower setting forth in reasonable detail the nature of such failure and the action proposed to be taken with respect thereto, (iv) promptly and in any event within 30 days after receipt thereof has made by either Borrower or suffered any ERISA Affiliate from the sponsor of a “complete withdrawal” Multiemployer Plan, a copy of each notice received by such Borrower or any ERISA Affiliate concerning (A) the imposition of Withdrawal Liability or (B) a “partial withdrawal,” as such terms are respectively defined determination that a Multiemployer Plan is, or is expected to be, terminated or in Sections 4203 and 4205 reorganization, in each case within the meaning of Title IV of ERISA, the liability for which would reasonably be expected to result (v) promptly and in any event within 30 days after receipt thereof by either Borrower or any Subsidiary, a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws copy of any material notice, ruling or opinion that either Borrower or any Subsidiary may receive from any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made Governmental Authority with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf Canadian Pension Plan; and (vi) notification within 30 days of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or material increases in the aggregatebenefits to be provided under any existing Canadian Pension Plan or Canadian Benefit Plan, reasonably be expected or the establishment of any new Canadian Pension Plan or Canadian Benefit Plan, or the commencement of contributions to result in a Material Adverse Effect on Hanover any such plan to which Canco or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverwas not previously contributing.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 2 contracts
Samples: Credit Agreement (Stone Container Corp), Credit Agreement (Stone Container Corp)
Benefit Plans. (ai) Section 5.13(a3.2(j)(i) of the Hanover ProLogis Disclosure Letter lists each all material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) Benefit Plans sponsored, maintained or contributed to by ProLogis or required to be contributed to by Hanover any of its Subsidiaries (the “ProLogis Benefit Plans”) for the benefit of current or former directors, officers or employees of ProLogis or any of its Subsidiaries or to which Hanover any dependants or any of its Subsidiaries is a party and beneficiaries thereof.
(ii) in which any individual who is currently or ProLogis has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true AMB a true, correct and complete copies copy of each Hanover ProLogis Benefit Plan and any amendments thereto and, with respect thereto, if applicable, (or if the plan is not a written planA) all amendments, a description thereof), any related trust (or other funding vehicle) agreements, summary plan descriptions and insurance contracts, (B) the most recent annual reports report (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) filed with the Internal Revenue Service and the most recent actuarial report or summaries required other financial statement relating to be prepared or filed under ERISA or the Code such ProLogis Benefit Plan, and (C) the most recent determination letter received from the IRS with respect to each Internal Revenue Service (if applicable) for such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsProLogis Benefit Plan.
(biii) Except as would notnot have, or would not reasonably be expected to have, individually or in the aggregate, a ProLogis Material Adverse Effect, (A) each ProLogis Benefit Plan, including any ProLogis Benefit Plan established or maintained outside of the United States or for the benefit of current or former employees of ProLogis or any of its Subsidiaries residing outside the United States (each, a “ProLogis Foreign Plan”), has been maintained and administered in compliance with its terms and with applicable Law, including ERISA and compliance with Section 409A of the Code to avoid income inclusion under Section 409A(a)(1) of the Code, (B) each ProLogis Benefit Plan intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service or is entitled to rely on an advisory or opinion letter issued with respect to an Internal Revenue Service approved master and prototype or volume submitter plan, and there are no existing circumstances or any events that have occurred that could reasonably be expected to result adversely affect the qualified status of any such Benefit Plan, (C) neither ProLogis nor its Subsidiaries has engaged in a material liability to Hanovertransaction that has resulted in, (i) neither Hanover nor or could result in, the assessment of a civil penalty upon ProLogis or any of its ERISA Affiliates has incurred any liability under Title IV or Subsidiaries pursuant to Section 302 502(i) of ERISA or under a tax imposed pursuant to Section 412 4975 or 4976 of the Code that has not been satisfied in full, and (iiD) no condition exists there does not now exist, nor do any circumstances exist that would reasonably be expected to result in Hanover incurring in, any such liabilityControlled Group Liability that would be a liability of ProLogis or any of its Subsidiaries, and (E) there are no pending or, to ProLogis’s knowledge, threatened claims by or on behalf of any ProLogis Benefit Plan, by any employee or beneficiary covered under any ProLogis Benefit Plan or otherwise involving any ProLogis Benefit Plan (other than routine claims for benefits.
(iiv) No Hanover None of ProLogis, any of its Subsidiaries or any other entity (whether or not incorporated) that, together with ProLogis or a Subsidiary of ProLogis, would be treated as a single employer under Section 414 of the Code or Section 4001(b) of ERISA, maintains, contributes to, or participates in, or has ever during the past six (6) years maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (A) a Benefit Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, (B) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), a “multiple employer plan” (as defined in Section 413(c) of the Code) or a “multiemployer pension plan,” (as defined in Section 3(37) of ERISA and (ii) none of HanoverERISA), or (C) any ERISA Affiliate thereof has made plan or suffered a “complete withdrawal” arrangement which provides retiree medical or a “partial withdrawal,” welfare benefits, except as such terms are respectively defined in Sections 4203 and 4205 of ERISArequired by applicable Law.
(v) Except as would not have, the liability for which would or reasonably be expected to result in a material liability to Hanover.
(d) Except as would nothave, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, ProLogis Material Adverse Effect: (A) each Hanover Benefit ProLogis Foreign Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made registered with applicable regulatory authorities has been so registered and has been maintained in good standing, (B) the fair market value of the assets of each funded ProLogis Foreign Plan, the liability of each insurer for any ProLogis Foreign Plan funded through insurance or the book reserve established for any ProLogis Foreign Plan (as applicable), together with any accrued contributions in respect of any such ProLogis Foreign Plan, is sufficient to procure or provide for the anticipated accrued benefit obligations, as of the Closing Date, with respect to any Hanover Benefit all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to, or the value of liabilities of, such ProLogis Foreign Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions transaction contemplated by this Agreement shall not result by itself cause such assets or insurance obligations to be less than such benefit obligations, and (C) any and all amounts required to be accrued with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement respect to any benefit ProLogis Foreign Plan, or payment by pursuant to any employeestatutory requirements pertaining to employee benefits, officer mandatory contributions, retirement plans or director under domestic similar benefits in respect of non-U.S. employees, have been properly and timely accrued, including accruals relating to any severance, termination pay or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverprofit sharing benefits.
Appears in 2 contracts
Samples: Merger Agreement (Prologis), Merger Agreement (Amb Property Lp)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, With respect to each Benefit Plan under which any employee or former employee of Momentive or any of its Subsidiaries has any present or future right to benefits that is maintained or contributed to or required to be contributed to by Hanover Momentive or any of its Subsidiaries or to under which Hanover Momentive or any of its Subsidiaries is a party and (ii) in which has any individual who is currently present or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant future liability (the “Hanover Momentive Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof Momentive has any commitment made available, or formal plan, whether legally binding or notwithin 30 days after the execution hereof will make available upon request, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco Hexion a true and complete copies correct copy of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, A) the most recent annual reports report (Form 5500) filed with the IRS, (B) such Momentive Benefit Plan, (C) each trust agreement relating to such Momentive Benefit Plan, (D) the most recent summary plan description for each Momentive Benefit Plan for which a summary plan description is required by ERISA, (E) the most recent actuarial report or summaries required valuation relating to be prepared or filed under a Momentive Benefit Plan subject to Title IV of ERISA or the Code and (F) the most recent determination letter received from issued by the IRS with respect to each such plan intended to qualify any Momentive Benefit Plan qualified under Section 401 401(a) of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(bii) Except as would notnot reasonably be expected, individually or in the aggregate, reasonably be expected to result in have a material liability to Hanover, (i) neither Hanover nor adverse effect on Momentive or any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in fullSubsidiaries with respect to each Momentive Benefit Plan, Momentive and its Subsidiaries have complied, and (ii) no condition exists that would reasonably be expected to result are now in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined compliance, in Section 3(37) of ERISA and (ii) none of Hanoverall material respects, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 with all provisions of ERISA, the liability for which would reasonably be expected Code and all laws and regulations applicable to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, such Momentive Benefit Plans and each Hanover Hexion Benefit Plan has been operated and administered in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverterms.
(eiii) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover No Momentive Benefit Plan or Momentive Incentive Plan exists that could result in the payment to any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction present or former employee of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement Momentive or any Executed Transaction Agreement, the consummation Subsidiary of Momentive of any money or other property or accelerate or provide any other rights or benefits to any present or former employee of Momentive or any Subsidiary of Momentive as a result of the transactions contemplated by this Agreement shall Agreement, whether or not result by itself or with such payment would constitute a parachute payment within the passage meaning of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.Code Section 280G.
Appears in 2 contracts
Samples: Combination Agreement (Hexion Specialty Chemicals, Inc.), Combination Agreement (Momentive Performance Materials Inc.)
Benefit Plans. (a) Section 5.13(a) No Benefit Plan of the Hanover Disclosure Letter lists each material Oak Valley or its ERISA Affiliates is a “employee defined benefit plan” (as defined in within the meaning of Section 3(33(35) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of HanoverERISA, or a Pension Plan. To the Knowledge of Oak Valley, there have been no prohibited transactions (described under Section 406 of ERISA or Section 4975(c) of the Code) or breaches of fiduciary duty or any ERISA Affiliate thereof has made other breaches or suffered a “complete withdrawal” violations of any law applicable to any of the Benefit Plans, in any such case, that would subject Oak Valley to any material Taxes, penalties or a “partial withdrawal,” as other liabilities. There are no investigations or audits of any Benefit Plan by any Governmental Authority currently pending and there have been no such terms are respectively defined investigations or audits that have been concluded that resulted in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material any liability to Hanover.
(d) Except as would notOak Valley, individually its Subsidiaries or in its ERISA Affiliates that has not been fully discharged. To the aggregate, reasonably be expected to result in a material liability to HanoverKnowledge of Oak Valley, each Hanover Benefit Plan has been operated and administered in all material respects in compliance with applicable law and in accordance with its terms terms, and applicable lawall reports, includingdescriptions and filings required by the Code, but not limited to, ERISA, the Code and the laws of ERISA or any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made government agency with respect to any Hanover each Benefit Plan have of Oak Valley or its ERISA Affiliates have, in all material respects, been timely madeand completely filed or distributed. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended that is represented to be “qualified” within the meaning of qualified under Section 401(a) of the Code has a current favorable determination letter or is based on a prototype document that has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Codefavorable opinion letter, respectivelyall subsequent interim amendments have been made in a timely manner, and each trust maintained under any Hanover to the Knowledge of Oak Valley, no such Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, been amended or operated in any such case, no event has occurred or condition is known to exist that would a way which could reasonably be expected to adversely affect such tax-its qualified status for or the qualified status of its related trust. There have been no terminations, partial terminations or discontinuances of contributions by Oak Valley to any qualified plan during the preceding six years without notice to and approval by the IRS, to the extent such Hanover notice to and approval by the IRS is required by Applicable Law. There are no pending claims, lawsuits or actions relating to any Benefit Plan of Oak Valley or any such trust.
its ERISA Affiliates (fother than ordinary claims for benefits) and, to the Knowledge of Oak Valley, none are threatened. No Hanover Benefit Plan is maintained outside the jurisdiction provides retiree medical or retiree life insurance benefits, except as required under Section 4980B of the United StatesCode and subsequent guidance. Oak Valley has not established or maintained, nor has any liability with respect to, any deferred compensation plan, program, or covers arrangement (including any employee residing or working outside the United States.
(g“nonqualified deferred compensation plan”) Except as otherwise provided which is not in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation compliance with Section 409A of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverCode.
Appears in 2 contracts
Samples: Exchange Agreement (Earthstone Energy Inc), Exchange Agreement
Benefit Plans. (ai) Section 5.13(a4.1(j)(i) of the Hanover Sprint Disclosure Letter lists contains a complete and correct list of each material “employee benefit plan” (as defined in Section 3(3) of ERISA)Sprint Benefit Plan. With respect to each material Sprint Benefit Plan, and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or Sprint has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx T-Mobile complete and Spinco true and complete accurate copies of each Hanover the following documents (if applicable): (A) such Sprint Benefit Plan and any amendments thereto (or if the summary plan is not a written plan, a description thereof), any related trust (B) each trust, insurance, annuity or other funding vehiclecontract related thereto, (C) the most recent audited financial statements and actuarial or other valuation reports prepared with respect thereto, (D) the most recent annual reports or summaries report on Form 5500 required to be prepared or filed under ERISA or with the Code Internal Revenue Service (the “IRS”) with respect thereto, and (E) the most recent recently received IRS determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsor opinion.
(bii) Except as would notas, individually or in the aggregate, would not reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Sprint, (iA) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 each of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Sprint Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan Plans has been operated and administered in all respects in accordance compliance with its terms and in accordance with applicable lawLaws, including, but not limited to, including ERISA, the Code and in each case the laws of any applicable foreign jurisdiction. Except as would regulations thereunder, (B) no Sprint Benefit Plan provides welfare benefits, including death or medical benefits (whether or not result in a material liability to Hanoverinsured), all contributions required to be made with respect to any Hanover current or former employees or directors of Sprint or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or comparable U.S. state or foreign law, (C) all contributions or other amounts payable by Sprint or its subsidiaries as of the Effective Time pursuant to each Sprint Benefit Plan in respect of current or prior plan years have been timely made. There paid or, to the extent not yet due, have been accrued in accordance with GAAP, (D) neither Sprint nor any of its subsidiaries has engaged in a transaction in connection with which Sprint or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code, and (E) there are no pending or, to Hanover’s Knowledgethe knowledge of Sprint, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Hanover Sprint Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldtrusts related thereto.
(iii) Except as set forth on Section 4.1(j)(iii) of the Sprint Disclosure Letter or as, individually or in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect on Hanover Sprint, none of Sprint, any of its subsidiaries or any of its Subsidiaries their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the six years preceding the date of this Agreement contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and no matter is pending (other than routine qualification determination filingsnone of Sprint, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of its subsidiaries or any of their respective ERISA Affiliates has, within the Hanover Benefit Plans before the IRSpreceding six years, the United States Department withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of Labor or the PBGC that wouldERISA.
(iv) Except as, individually or in the aggregate, would not reasonably be expected to result in have a material liability to Hanover.
(e) Each Hanover Material Adverse Effect on Sprint, each of the Sprint Benefit Plan Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9(A) of the Code has satisfied such requirements is so qualified and, in to the knowledge of Sprint, there are no existing circumstances or any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-the qualified status for of any such Hanover Benefit Plan plan and (B) has received a favorable determination letter or any such trustopinion letter as to its qualification.
(fv) No Hanover Section 4.1(j)(v) of the Sprint Disclosure Letter sets forth each Sprint Benefit Plan that is maintained outside the jurisdiction subject to Section 302 or Title IV or Section 412, 430 or 4971 of the United StatesCode (each, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreementa “Sprint Title IV Plan”). With respect to each Sprint Title IV Plan, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldexcept for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Sprint, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (B) no such Sprint Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, (D) none of Sprint, any of its subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069, 4204(a) or 4212(c) of ERISA, (E) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (F) no liability (other than for premiums to the PBGC) has been or, to the knowledge of Sprint, is expected to be incurred by Sprint or any of its subsidiaries, and (G) the PBGC has not instituted proceedings to terminate any such Sprint Title IV Plan. Except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Sprint, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability following the Closing of Sprint, any of its subsidiaries or any of their respective ERISA Affiliates. Since December 31, 2016, there has not been any material change in any actuarial or other assumption used to calculate funding obligations with respect to any Sprint Title IV Plan, or any material change in the manner in which contributions to any Sprint Title IV Plan are made or the basis on which such contributions are determined.
(vi) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) result in any payment (including severance, unemployment compensation, forgiveness of Indebtedness or otherwise) becoming due to any current or former employee, director or other individual service provider of Sprint or its subsidiaries under any Sprint Benefit Plan, (B) increase any compensation or benefits otherwise payable under any Sprint Benefit Plan, (C) result in any acceleration of the time of payment, funding or vesting of any such compensation or benefits, (D) impose any restrictions or limitations on the rights of T-Mobile or its affiliates to amend, merge, terminate or receive a material liability reversion of assets from any Sprint Benefit Plan or (E) result in the payment of any compensation or benefits to Hanoverany person who would be a “disqualified individual” (as such term is defined in Treasury Regulations Section 1.280G-1) with respect to Sprint or its affiliates that could reasonably, individually or in combination with any other such payment, constitute an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code).
(vii) No person is entitled to receive any additional payment (including any Tax gross-up or other payment) from Sprint or any of its subsidiaries as a result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(viii) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Sprint, all Sprint Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment, and (C) that are intended to be funded and/or book-reserved are funded and/or book reserved, as required under applicable Laws and GAAP, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Samples: Business Combination Agreement (SPRINT Corp), Business Combination Agreement (T-Mobile US, Inc.)
Benefit Plans. (a) Section 5.13(a3.17(a) of the Hanover Company Disclosure Letter lists Schedule sets forth an accurate and complete list of the material Employee Plans (excluding any Benefit Plan that is an employment offer letter or individual independent contractor or consultant agreement that is terminable upon no more than thirty (30) days’ notice without further liability and does not provide any retention, change in control or severance payments or benefits). To the extent applicable, the Company has either delivered or made available to Parent prior to the execution of this Agreement with respect to each material Employee Plan accurate and complete copies of: (i) each material Employee Plan, including all plan documents and all amendments thereto, and all related trust or other funding documents, and in the case of unwritten material Employee Plans, written descriptions thereof, (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or the United States Department of Labor, (iii) the most recent summary plan descriptions and any material modifications thereto, (iv) the most recent annual reports with accompanying schedules and attachments, filed with respect to each Employee Plan required to make such a filing, (v) the most recently prepared actuarial reports, financial statements and trustee reports, if any, relating to the Employee Plan, (vi) all material records, notices and filings concerning IRS or United States Department of Labor audits or investigations with respect to any Employee Plan, and (vii) any non-ordinary course correspondence with the Department of Labor, Internal Revenue Service, or any other Governmental Body regarding a Benefit Plan within the last two (2) years.
(b) No Employee Plan is, and neither any Company Entity nor any ERISA Affiliate, contributes to, or been required to contribute to or has any liability or obligation, whether fixed or contingent, with respect to (i) a single employer plan or other pension plan subject to Title IV of ERISA or Section 302 of ERISA or Code Section 412, including any “employee single employer” defined benefit plan (as defined in Section 4001 of ERISA), (ii) any “multiemployer plan” (as defined in Section 3(34001 of ERISA), (iii) a “multiple employer plan” (within the meaning of Section 413(c) of the Code) or (iv) a multiple employer welfare arrangement (within the meaning of Section 3(40) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(bc) Except as would not, individually or in the aggregate, not reasonably be expected to result have a Material Adverse Effect, all payments, contributions and premiums related to each Employee Plan have been timely paid or made in a material liability full or, to Hanoverthe extent not yet due, (i) neither Hanover nor properly accrued on any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 Company Entity balance sheet in accordance with the terms of the Code that has not been satisfied in full, Employee Plan and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanoverall applicable Legal Requirements.
(d) Except as would notNo Employee Plan, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit and neither any Company Entity nor any Employee Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made fiduciary with respect to any Hanover Employee Plan, in any case, is the subject of an audit or investigation by the IRS, the Department of Labor, the Pension Benefit Plan have been timely made. There are no Guaranty Corporation or any other Governmental Body, nor is any such audit or investigation pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any the knowledge of the Hanover Benefit Plans or any assets thereofCompany, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverthreatened.
(e) Each Hanover Benefit Plan of the Employee Plans that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code has received obtained a favorable determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation (or opinion letter, if applicable) as to its qualified status under Section 401(a) of the Code, respectivelyand, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) knowledge of the Code has satisfied such requirements andCompany, in there are no existing circumstances or any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to affect materially and adversely affect such tax-the qualified status for of any such Hanover Benefit Plan or any such trustEmployee Plan. Each of the Employee Plans is now and has been maintained, operated and administered in compliance in all material respects with its terms and all applicable Legal Requirements, including but not limited to ERISA and the Code.
(f) No Hanover Benefit Plan is maintained outside Except to the jurisdiction extent required under Section 601 et seq. of ERISA or 4980B of the United StatesCode (or any other similar state or local Legal Requirement), the Company Entities (whether under an Employee Plan or otherwise) do not have and have not had any present or future obligation to provide health, accident, disability, life or other welfare benefits to or make any payment to, or covers with respect to, any employee residing present or working outside former employee, consultant, officer, director or retiree of any Company Entity (or any spouse, beneficiary or dependent of the United Statesforegoing) beyond the termination of employment or other service of such employee, consultant, officer, director or retiree.
(g) Except as otherwise provided in or contemplated by Section 2.8, the execution and delivery of this Agreement or any Executed Transaction Agreement, and the consummation of the transactions Transactions (either alone or in combination with other events or circumstances, whether contingent or otherwise) contemplated by this Agreement shall hereby will not result by itself (i) entitle any current or with the passage of time in the payment former employee, director, officer, independent contractor or acceleration other service provider of any amountCompany Entity to severance pay, unemployment compensation or any other payment, (ii) accelerate the accrual time of payment, funding or acceleration vesting, or increase the amount of, compensation or benefits due to any such employee, director, officer, independent contractor or other service provider of any Company Entity, (iii) directly or indirectly cause any Company Entity to transfer or set aside any material assets to fund any benefits under any Employee Plan or (iv) result in any “parachute payment” within the meaning of Section 280G of the Code and the regulations and guidance thereunder.
(h) No Company Entity has sponsored, maintained, contributed to, or been required to sponsor, maintain, participate in or contribute to, any employee benefit plan, program, or other arrangement providing compensation or benefits to any service provider (or any increase in dependent thereof) which is subject to the Legal Requirements of any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in jurisdiction outside of the aggregate, reasonably be expected to result in a material liability to HanoverUnited States.
Appears in 2 contracts
Samples: Merger Agreement (Cti Biopharma Corp), Merger Agreement (Cti Biopharma Corp)
Benefit Plans. (a) Seller has set forth in Section 5.13(a3.13(a)(i) of the Hanover Seller Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) Schedule a complete and accurate list of ERISA), and all other material employee benefit, existing bonus, incentive, deferred compensation, pension, retirement, profit-sharing, thrift, savings, employee stock option (or other equity-based)ownership, stock bonus, stock purchase, restricted stock, stock option, severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs employment or severance agreements and arrangementsall similar practices, whether policies and arrangements in which any current or not subject to ERISA andformer employee (the “Seller Employees”), whether written current or oral former consultant (ithe “Seller Consultants”) sponsored, maintained or contributed to current or required to be contributed to by Hanover former director (the “Seller Directors”) of Seller or any of its Subsidiaries participates or to which Hanover any such Seller Employees, Seller Consultants or any of its Subsidiaries is Seller Directors are a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Seller Compensation and Benefit Plans”). Neither HanoverExcept as required by the terms of this Agreement or as set forth in Section 3.13(a)(ii) of the Seller Disclosure Schedule, neither Seller nor any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan Seller Compensation and Benefit Plan or to modify or change any existing Hanover Seller Compensation and Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsPlan.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, Each Seller Compensation and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all material respects in accordance with its terms and with applicable law, including, but not limited to, ERISA, the Code or any regulations or rules promulgated thereunder, and all filings, disclosures and notices required by ERISA, the laws of Code and any other applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan law have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries Each Seller Compensation and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be which is an “qualifiedemployee pension benefit plan” within the meaning of Section 3(2) of ERISA (a “Seller Pension Plan”) and which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from (including a determination that the IRS stating that they related trust under such Seller Compensation and the trusts maintained thereunder are Benefit Plan is exempt from taxation tax under Section 401(a501(a) of the Code, respectively) from the IRS or the Seller Compensation and Benefit Plan uses a prototype or volume submitter plan that is the subject of an IRS opinion or advisory letter, and each trust maintained under Xxxxxx is not aware of any Hanover circumstances which could adversely affect such qualification or which are likely to result in the revocation of any existing favorable determination letter or in not receiving a favorable determination letter. There is no pending or, to the knowledge of Seller, threatened legal action, suit or claim relating to the Seller Compensation and Benefit Plans other than routine claims for benefits. Neither Seller nor any of its Subsidiaries has engaged in a transaction, or omitted to take any action, with respect to any Seller Compensation and Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect subject Seller or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA, assuming for purposes of Section 4975 of the Code that the taxable period of any such taxtransaction expired as of the date hereof.
(c) No liability (other than for payment of premiums to the PBGC which have been made or will be made on a timely basis) under Title IV of ERISA has been or is expected to be incurred by Seller or any of its Subsidiaries with respect to any ongoing, frozen or terminated “single-qualified status employer plan” within the meaning of Section 4001(a)(15) of ERISA, currently or formerly maintained by any of them, or any single-employer plan of any entity (a “Seller ERISA Affiliate”) which is considered one employer with Seller under Section 4001(a)(14) of ERISA or Section 414(b) or (c) of the Code (a “Seller ERISA Affiliate Plan”). None of Seller, any of its Subsidiaries or any Seller ERISA Affiliate has contributed, or has been obligated to contribute, to (i) a multiemployer plan under Subtitle E of Title IV of ERISA at any time since December 31, 2016, or (ii) except as set forth in Section 3.13(c)(ii) of the Seller Disclosure Schedule, a multiple employer plan covered by Section 413(c) of the Code at any time since December 31, 2016. If the Seller or any of its Subsidiaries or any Seller ERISA Affiliate has participated in a multiple employer plan at any time since December 31, 2016, such plan and each participating employer in such plan has complied with all requirements of the Code and ERISA applicable to such plan and each participating employer in such plan at all times since December 31, 2016, and the Seller and its Subsidiaries may withdraw from such plan without incurring any liability associated with such withdrawal. No notice of a “reportable event,” within the meaning of Section 4043 of ERISA for which the 30-day reporting requirement has not been waived, has been required to be filed for any such Hanover Seller Compensation and Benefit Plan or by any Seller ERISA Affiliate Plan within the 12-month period ending on the date hereof, and no such trustnotice will be required to be filed as a result of the transactions contemplated by this Agreement. The PBGC has not instituted proceedings to terminate any Seller Pension Plan or Seller ERISA Affiliate Plan and, to Seller’s knowledge, no condition exists that presents a material risk that such proceedings will be instituted. To the knowledge of Seller, there is no pending investigation or enforcement action by the PBGC, the DOL or the IRS or any other governmental agency with respect to any Seller Compensation and Benefit Plan. Under each Seller Pension Plan and Seller ERISA Affiliate Plan, as of the date of the most recent actuarial valuation performed prior to the date of this Agreement, the actuarially determined present value of all “benefit liabilities,” within the meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions contained in such actuarial valuation of such Seller Pension Plan or Seller ERISA Affiliate Plan), did not exceed the then current value of the assets of such Seller Pension Plan or Seller ERISA Affiliate Plan and since such date there has been neither an adverse change in the financial condition of such Seller Pension Plan or Seller ERISA Affiliate Plan nor any amendment or other change to such Seller Pension Plan or Seller ERISA Affiliate Plan that would increase the amount of benefits thereunder which reasonably could be expected to change such result.
(d) All contributions required to be made under the terms of any Seller Compensation and Benefit Plan or Seller ERISA Affiliate Plan or any employee benefit arrangements under any collective bargaining agreement to which Seller or any of its Subsidiaries is a party have been timely made or have been reflected on Seller’s Financial Statements. Neither any Seller Pension Plan nor any Seller ERISA Affiliate Plan has an “accumulated funding deficiency” (whether or not waived) within the meaning of Section 412 of the Code or Section 302 of ERISA and all required payments to the PBGC with respect to each Seller Pension Plan or Seller ERISA Affiliate Plan have been made on or before their due dates. None of Seller, any of its Subsidiaries or any Seller ERISA Affiliate (x) has provided, or would reasonably be expected to be required to provide, security to any Seller Pension Plan or to any Seller ERISA Affiliate Plan pursuant to Section 401(a)(29) of the Code, and (y) has taken any action, or omitted to take any action, that has resulted, or would reasonably be expected to result, in the imposition of a lien under Section 412(n) of the Code or pursuant to ERISA.
(e) Neither Seller nor any of its Subsidiaries has any obligations to provide retiree health and life insurance or other retiree death benefits under any Seller Compensation and Benefit Plan, other than benefits mandated by Section 4980B of the Code, and each such Seller Compensation and Benefit Plan may be amended or terminated without incurring liability thereunder, and there has been no communication to Seller Employees by Seller or any of its Subsidiaries that would reasonably be expected to promise or guarantee such Seller Employees retiree health or life insurance or other retiree death benefits on a permanent basis.
(f) No Hanover Seller and its Subsidiaries do not maintain any Seller Compensation and Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United StatesPlans covering foreign Seller Employees.
(g) With respect to each Seller Compensation and Benefit Plan, if applicable, Seller has provided or made available to Buyer, true and complete copies of: (i) existing Seller Compensation and Benefit Plan documents and amendments thereto; (ii) all trust instruments and insurance contracts; (iii) the two most recent Forms 5500 filed with the IRS; (iv) the most recent actuarial report and financial statement; (v) the most recent summary plan description; (vi) the most recent determination or opinion letter issued by the IRS; (vii) any Form 5310 or Form 5330 filed with the IRS; and (viii) the most recent nondiscrimination tests performed under ERISA and the Code (including 401(k) and 401(m) tests).
(h) Except as otherwise provided set forth in or contemplated by this Agreement or any Executed Transaction AgreementSection 3.13(h) of the Seller Disclosure Schedule, the consummation of the transactions contemplated by this Agreement shall not would not, directly or indirectly (including, without limitation, as a result by itself of any termination of employment prior to or with following the passage of time Effective Time) (i) entitle any Seller Employee, Seller Consultant or Seller Director to any payment (including severance pay or similar compensation) or any increase in compensation, (ii) result in the payment vesting or acceleration of any amount, the accrual benefits under any Seller Compensation and Benefit Plan or acceleration of (iii) result in any benefit or any material increase in benefits payable under any vested interest Seller Compensation and Benefit Plan.
(i) Neither Seller nor any of its Subsidiaries maintains any compensation plans, programs or entitlement to any benefit or payment by any employee, officer or director arrangements the payments under domestic or foreign law that would, individually or in the aggregate, which would not reasonably be expected to be deductible as a result of the limitations under Section 162(m) of the Code and the regulations issued thereunder.
(j) As a result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to or following the Effective Time), neither Buyer nor Seller, nor any of their respective Subsidiaries will be obligated to make a payment to any Seller Employee that would be characterized as an “excess parachute payment” to an individual who is a “disqualified individual” (as such terms are defined in Section 280G of the Code), without regard to whether such payment is reasonable compensation for personal services performed or to be performed in the future.
(k) As of the Effective Time, except as Previously Disclosed, there are no supplemental employment retirement plans (SERPs) between Seller, any of its Subsidiaries and any of their employees.
(l) Neither Seller nor any of its Subsidiaries has made any agreement, taken any action, or omitted to take any action, with respect to or as part of any Seller Compensation and Benefit Plan that is an operational failure under Section 409A of the Code or that would reasonably be expected to subject Seller or any of its Subsidiaries to any obligation to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider to Seller or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider, as defined under Section 409A of the Code, respecting any such tax, interest or penalty under Section 409A of the Code. As a material liability result, directly or indirectly, of the transactions contemplated by this Agreement (including, without limitation, as a result of any termination of employment prior to Hanoveror following the Effective Time), neither Seller nor any of its Subsidiaries will be obligated to report any amount or withhold any amount as includable in income and subject to tax, interest or any penalty by any service provider (as defined under Section 409A of the Code) to Seller or any of its Subsidiaries under Section 409A of the Code or to pay any reimbursement or other payment to any service provider (as defined under Section 409A of the Code) respecting any such Tax, interest or penalty under Section 409A of the Code and no provision of any of the Seller Compensation and Benefit Plans, or any actions taken or omitted thereunder, violate Section 409A of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Southern Missouri Bancorp, Inc.), Merger Agreement (Southern Missouri Bancorp, Inc.)
Benefit Plans. (ai) Section 5.13(aThe TMX Group Data Room contains a true and complete list of all material TMX Group Benefit Plans. TMX Group and its Subsidiaries have no material liability for life, health, medical or other welfare benefits to former employees or beneficiaries or dependents thereof.
(ii) (A) no TMX Group Benefit Plan is a “registered pension plan” as that term is defined in the Tax Act, (B) no TMX Group Benefit Plan is a Multi- Employer Plan and (C) there is no entity other than TMX Group and/or its Subsidiaries participating in any TMX Group Benefit Plan.
(iii) Each material TMX Group Benefit Plan has been established, registered, amended, funded, administered, and invested in all material respects in accordance with its terms and applicable Laws and any contributions required to be made under each material TMX Group Benefit Plan, as of the Hanover Disclosure Letter lists date hereof, have been timely made in accordance with the terms of each material “employee benefit plan” (as defined in Section 3(3) of ERISA)TMX Group Benefit Plan and applicable Laws, and all obligations in respect of each TMX Group Benefit Plan have been properly accrued and reflected in the audited consolidated financial statements for TMX Group in accordance with GAAP as of and for the fiscal year ended on December 31, 2009, including the notes thereto and the report by TMX Group’s auditors thereon. There are no investigations by a Governmental Entity or material claims (other than routine claims for payment of benefits) pending, or to the knowledge of TMX Group or its Subsidiaries, threatened involving any TMX Group Benefit Plan or its assets, and no facts exist which could reasonably be expected to give rise to any such investigation order or material employee benefitclaim (other than routine claims for payment of benefits).
(iv) No event has occurred respecting any TMX Group Benefit Plan which would entitle a Person (without the consent of TMX Group) to wind-up or terminate any TMX Group Benefit Plan in whole or in part, bonusexcept where such wind-up or termination would not reasonably be expected to have a TMX Xxxxx Xxxxxxxx Adverse Effect.
(v) There has been no amendment to, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to announcement by Hanover TMX Group or any of its Subsidiaries relating to or to change in employee participation, coverage, or benefits provided under, any TMX Group Benefit Plan which Hanover or any would increase materially the expense of its Subsidiaries is a party and (ii) in which any individual who is currently or maintaining such plan above the level of the expense incurred therefor for the most recent fiscal year. There has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or no formal plan, commitment, or promise whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover material TMX Group Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsPlans.
(bvi) Except There are no unfunded liabilities in respect of any TMX Group Benefit Plan which provides pension benefits, superannuation benefits or retirement savings, including any “registered pension plans” as would not, individually or that term is defined in the aggregateIncome Tax Act, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor or any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liabilitysupplemental pension plans.
(ivii) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, liabilities or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against obligations under any of the Hanover TMX Group Benefit Plans or in respect of any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect employees on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that disability would, individually or in the aggregate, reasonably be expected to result in have a material liability to HanoverTMX Xxxxx Xxxxxxxx Adverse Effect.
(eviii) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) None of the Code has received TMX Group Benefit Plans, or any insurance contract relating thereto, require or permit a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) retroactive increase in premiums or payments on termination of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover TMX Group Benefit Plan or any insurance contract relating thereto, except where such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, increase or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldpayments, individually or in the aggregate, reasonably be expected would not have a TMX Xxxxx Xxxxxxxx Adverse Effect.
(ix) Neither the execution of this Agreement, nor the consummation of the Arrangement will (A) entitle any employees of TMX Group or any of its Subsidiaries to severance pay or any increase in severance pay upon any termination of employment after the date hereof, (B) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of benefits under, increase the amount payable or result in any other material liability obligation pursuant to, any of the TMX Group Benefit Plans, or (C) except as may be required in connection with Section 5.5, limit or restrict the right of TMX Group or, after the consummation of the Arrangement, LSEG to Hanovermerge, amend or terminate any of the TMX Group Benefit Plans.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement
Benefit Plans. (a) Section 5.13(a4.12(a) of the Hanover Spinco Disclosure Letter lists each material “"employee benefit plan” " (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA andERISA, and whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover Heinz or any of its Subsidiaries or to which Hanover Heinz or any of its Subsidiaries is a party and (ii) in which any individual who is currently or, at or has been prior to the Effective Time, is expected to become an officer, director or employee of Hanover Spinco (including employees who are, at the Effective Time, not actively at work on such date by reason of illness, vacation, leave of absence or short-term disability) (a “Hanover "Spinco Employee”") is a participant (the “Hanover "Spinco Benefit Plans”"). Neither HanoverExcept as otherwise provided for in this Agreement and the other Transaction Agreements, neither Spinco, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Spinco Benefit Plan that would affect any Hanover Spinco Employee except in the ordinary course of business. Hanover Spinco has heretofore delivered or made available to Xxxxxx and Spinco Del Monte true and complete copies of each Hanover Spinco Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverMaterial Adverse Effect on Spinco, (i) neither Hanover Spinco nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover Spinco incurring any such liability.
(i) No Hanover Spinco Benefit Plan is a “"multiemployer pension plan,” " as defined in Section 3(37) of ERISA ERISA, and (ii) none of Hanover, Spinco or any ERISA Affiliate thereof has made or suffered a “"complete withdrawal” " or a “"partial withdrawal,” " as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Spinco.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverMaterial Adverse Effect on Spinco, each Hanover Spinco Benefit Plan has been operated and administered in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code Code, and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to HanoverSpinco, all contributions required to be made with respect to any Hanover Spinco Benefit Plan have been timely made. There are no pending or, to Hanover’s Heinz's Knowledge, threatened claims by, on behalf of or against any of the Hanover Spinco Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldwould, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries Spinco and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco Del Monte or will be promptly furnished to Xxxxxx and Spinco Del Monte when made) with respect to any of the Hanover Spinco Benefit Plans before the IRS, the United States Department of Labor or the PBGC PBGC, that would, individually or in the aggregate, reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Spinco.
(e) Each Hanover Spinco Benefit Plan intended to be “"qualified” " within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) or Section 501(a) of the Code, respectively, and each trust maintained under any Hanover Spinco Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements andrequirements, and in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Spinco Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed other Transaction Agreement, the consummation of the transactions contemplated by this Agreement or the Separation Agreement shall not result result, by itself or with the passage of time time, in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldthat, individually or in the aggregate, would reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Spinco.
Appears in 2 contracts
Samples: Merger Agreement (Del Monte Foods Co), Merger Agreement (Heinz H J Co)
Benefit Plans. (a) Section 5.13(a) of Other than the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA)REIT I Equity Incentive Plan, REIT I and the REIT I Subsidiaries do not and are not required to, and all other material employee benefithave not and have never been required to, bonusmaintain, incentivesponsor or contribute to any Benefit Plans. Neither REIT I nor any REIT I Subsidiary has any contract, deferred compensation, stock option (plan or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangementscommitment, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or notbinding, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsPlan.
(b) Except as would not, individually or in the aggregate, have not had and would not reasonably be expected to result in a material liability to Hanoverhave REIT I Material Adverse Effect, (i) neither Hanover nor none of REIT I, any REIT I Subsidiary or any of its their respective ERISA Affiliates has incurred any obligation or liability with respect to or under any Benefit Plan or any other employee benefit plan, program or arrangement (including any agreement, program, policy or other arrangement under which any current or former employee, director or consultant has any present or future right to benefits) which has created or will create any obligation with respect to, or has resulted in or will result in any liability to REIT II or any REIT II Subsidiary.
(c) Except as individually or in the aggregate, have not had and would not reasonably be expected to have a REIT I Material Adverse Effect, the REIT I Equity Incentive Plan was established and has been administered in accordance with its terms and in compliance with all applicable Laws, including the Code.
(d) None of REIT I, any REIT I Subsidiaries or any of their respective ERISA Affiliates has ever maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (i) a “pension plan” under Section 3(2) of ERISA that is subject to Title IV or Section 302 of ERISA or under Section 412 or 4971 of the Code that has not been satisfied in fullCode, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” (as defined in Section 3(37) of ERISA and ERISA), (iiiii) none a “multiple employer welfare arrangement” (as defined in Section 3(40) of HanoverERISA), or any ERISA Affiliate thereof has made or suffered (iv) a “complete withdrawalmultiple employer plan” or a “partial withdrawal,” (as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(dSection 413(c) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverCode).
(e) Each Hanover Benefit Plan intended to No amount that could be “qualified” within received (whether in cash or property or the meaning vesting of Section 401(aproperty) as a result of the Code has received Mergers or any of the other transactions contemplated hereby (alone or in combination with any other event) by any Person who is a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) under any compensation arrangement could be characterized as an “excess parachute payment” (as such term is defined in Section 401(a280G(b)(1) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust).
(f) No Hanover Benefit The REIT I Equity Incentive Plan is has been maintained outside the jurisdiction and operated in compliance with Section 409A of the United States, Code or covers any employee residing or working outside the United Statesan available exemption therefrom.
(g) Except as Neither REIT I nor any REIT I Subsidiary is a party to or has any obligation under any Contract, the REIT I Equity Incentive Plan or otherwise provided in to compensate any Person for excise taxes payable pursuant to Section 4999 of the Code or contemplated by this Agreement for additional taxes payable pursuant to Section 409A of the Code.
(h) Neither REIT I nor any REIT I Subsidiary has, or has ever had, any employees on its payroll.
(i) No individual who provides services to REIT I or any Executed Transaction AgreementREIT I Subsidiary is represented by a labor union or similar representative with respect to the services that he or she provides to REIT I or a REIT I Subsidiary, the consummation of the transactions contemplated by this Agreement shall not result by itself and neither REIT I nor any REIT I Subsidiary is a party or subject to any collective bargaining agreement or other Contract with a labor union or similar representative. There is no question concerning representation as to any collective bargaining representative concerning any individual who performs services for or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit respect to REIT I or any increase in REIT I Subsidiary and, to the Knowledge of REIT I, no labor union or similar organization is seeking to organize or represent anyone who performs services for or with respect to REIT I or any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverREIT I Subsidiary.
Appears in 2 contracts
Samples: Merger Agreement (Moody National REIT I, Inc.), Agreement and Plan of Merger (Moody National REIT II, Inc.)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredWith respect to each material Orion Benefit Plan, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or Orion has been an officermade available, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or notupon request, to create any additional employee benefit plan or modify or change any existing Hanover Diamond complete and accurate copies of (A) such Orion Benefit Plan that would affect any Hanover Employee except in and, to the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the extent applicable, summary plan is not a written plan, a description thereof), any related trust (B) each trust, insurance, annuity or other funding vehiclecontract related thereto, (C) the most recent audited financial statements and actuarial or other valuation reports prepared with respect thereto, (D) the most recent annual reports or summaries report on Form 5500 required to be prepared or filed under ERISA or with the Code Internal Revenue Service (the “IRS”) with respect thereto and (E) the most recent recently received IRS determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedulesor opinion, (B) audited financial statements and (C) actuarial valuation reportsif applicable.
(bii) Except as would notas, individually or in the aggregate, would not reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Orion, (iA) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 each of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Orion Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan Plans has been operated and administered in all respects in accordance compliance with its terms and applicable lawin accordance with Applicable Laws, including, but not limited to, including ERISA, the Code and in each case the laws of any applicable foreign jurisdiction. Except as would regulations thereunder; (B) no Orion Benefit Plan provides welfare benefits, including death or medical benefits (whether or not result in a material liability to Hanoverinsured), all contributions required to be made with respect to any Hanover current or former employees or directors of Orion or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or comparable U.S. state or foreign law; (C) all contributions or other amounts payable by Orion or its subsidiaries as of the Effective Time pursuant to each Orion Benefit Plan in respect of current or prior plan years have been timely made. There are no pending paid or, to Hanover’s Knowledgethe extent not yet due, have been accrued in accordance with GAAP; (D) neither Orion nor any of its subsidiaries has engaged in a transaction in connection with which Orion or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code; and (E) there are no pending, or to the knowledge of Orion, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Hanover Orion Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldtrusts related thereto.
(iii) Except as set forth on Section 4.1(j)(iii) of the Orion Disclosure Letter or as, individually or in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect on Hanover Orion, none of Orion, any of its subsidiaries or any of its Subsidiaries their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the six years preceding the date of this Agreement contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and no matter is pending (other than routine qualification determination filingsnone of Orion, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of its subsidiaries or any of their respective ERISA Affiliates has, within the Hanover Benefit Plans before the IRSpreceding six years, the United States Department withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of Labor or the PBGC that wouldERISA.
(iv) Except as, individually or in the aggregate, would not reasonably be expected to result in have a material liability to Hanover.
(e) Each Hanover Material Adverse Effect on Orion, each of the Orion Benefit Plan Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, (A) is so qualified and each trust maintained under there are no existing circumstances or any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-the qualified status for of any such Hanover Benefit Plan plan and (B) has received a favorable determination letter or any such trustopinion letter as to its qualification.
(fv) No Hanover Section 4.1(j)(v) of the Orion Disclosure Letter sets forth each Orion Benefit Plan that is maintained outside the jurisdiction subject to Section 302 or Title IV or Section 412, 430 or 4971 of the United StatesCode (each, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreementan “Orion Title IV Plan”). With respect to each Orion Title IV Plan, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldexcept for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Orion, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (B) no such Orion Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, (D) none of Orion, any of its subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069, 4204(a) or 4212(c) of ERISA, (E) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (F) no liability (other than for premiums to the PBGC) has been or, to the knowledge of Orion, is expected to be incurred by Orion or any of its subsidiaries and (G) the PBGC has not instituted proceedings to terminate any such Orion Title IV Plan. Except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Orion, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability following the Closing of Orion, any of its subsidiaries or any of their respective ERISA Affiliates. Since July 1, 2014, there has not been any material change in any actuarial or other assumption used to calculate funding obligations with respect to any Orion Title IV Plan, or any material change in the manner in which contributions to any Orion Title IV Plan are made or the basis on which such contributions are determined.
(vi) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of Orion or its subsidiaries under any Orion Benefit Plan or otherwise, (B) increase any benefits otherwise payable under any Orion Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of any such benefits.
(vii) No person is entitled to receive any additional payment (including any Tax gross-up or other payment) from Orion or any of its subsidiaries as a material liability result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(viii) Except as, individually or in the aggregate, would not reasonably be expected to Hanoverhave a Material Adverse Effect on Orion, all Orion Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment, and (C) that are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Samples: Merger Agreement (Dow Chemical Co /De/), Merger Agreement (Dupont E I De Nemours & Co)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with With respect to each such plan intended material UTC RemainCo Benefit Plan, UTC has made available, upon request, to qualify under Section 401 Raytheon complete and accurate copies of the Code and the three most recent years (A) such UTC RemainCo Benefit Plan and, to the Form 5500s and attached Schedulesextent applicable, summary plan description thereof, (B) the most recent audited financial statements and actuarial or other valuation reports prepared with respect thereto, and (C) actuarial valuation reportsthe most recently received IRS determination letter or opinion, if applicable.
(bii) Except as would notas, individually or in the aggregate, would not reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on UTC, (iA) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 each of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover UTC RemainCo Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan Plans has been operated and administered in all respects in accordance compliance with its terms and applicable lawin accordance with Applicable Laws, including, but not limited to, including ERISA, the Code and in each case the laws of any applicable foreign jurisdiction. Except as would regulations thereunder, (B) no UTC RemainCo Benefit Plan provides welfare benefits, including death or medical benefits (whether or not result in a material liability to Hanoverinsured), all contributions required to be made with respect to any Hanover current or former employees or directors of UTC RemainCo or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated by COBRA, or comparable U.S. state or foreign law, (C) all contributions or other amounts payable by UTC RemainCo or its subsidiaries as of the Effective Time pursuant to each UTC RemainCo Benefit Plan in respect of current or prior plan years have been timely made. There paid or, to the extent not yet due, have been accrued in accordance with GAAP, (D) neither UTC RemainCo nor any of its subsidiaries has engaged in a transaction in connection with which UTC RemainCo or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code and (E) there are no pending or, to Hanover’s Knowledgethe knowledge of UTC, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Hanover UTC RemainCo Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldtrusts related thereto.
(iii) Except as set forth on Section 4.2(l)(iii) of the UTC Disclosure Letter or as, individually or in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect on Hanover UTC, none of UTC RemainCo, any of its subsidiaries or any of its Subsidiaries their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the six (6) years preceding the date of this Agreement contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and no matter is pending (other than routine qualification determination filingsnone of UTC RemainCo, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of its subsidiaries or any of their respective ERISA Affiliates has, within the Hanover Benefit Plans before the IRSpreceding six (6) years, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result withdrawn in a material complete or partial withdrawal from any Multiemployer Plan or incurred any liability to Hanoverunder Section 4202 of ERISA.
(eiv) Each Hanover of the UTC RemainCo Benefit Plan Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9(A) of the Code has satisfied such requirements is so qualified and, in to the knowledge of UTC RemainCo, there are no existing circumstances or any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-affect, in any material respect, the qualified status for of any such Hanover Benefit Plan plan and (B) has received a favorable determination letter or any such trustopinion letter as to its qualification.
(fv) No Hanover Section 4.2(l)(v) of the UTC Disclosure Letter sets forth each UTC RemainCo Benefit Plan that is maintained outside the jurisdiction subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the United StatesCode (each, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreementa “UTC RemainCo Title IV Plan”). With respect to each UTC RemainCo Title IV Plan, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldexcept for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on UTC, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (B) no such UTC RemainCo Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the thirty (30)-day notice requirement has not been waived has occurred, (D) none of UTC RemainCo, any of its subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069, 4204(a) or 4212(c) of ERISA, (E) all premiums to the PBGC have been timely paid in full, (F) no liability (other than for premiums to the PBGC) has been or, to the knowledge of UTC RemainCo, is expected to be incurred by UTC RemainCo or any of its subsidiaries and (G) the PBGC has not instituted proceedings to terminate any such UTC RemainCo Title IV Plan.
(vi) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will result in (A) the acceleration of vesting, exercisability, funding or delivery of, or increase in the amount or value of, any payment, right or other benefit to any current or former employee or director of UTC RemainCo or any of its subsidiaries or (B) result in any limitation on the right of UTC RemainCo or any of its subsidiaries to amend, merge, terminate or receive a material liability reversion of assets from any UTC RemainCo Benefit Plan or related trust on or after the Effective Time. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by UTC RemainCo or any of its subsidiaries 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.
(vii) No person is entitled to Hanoverreceive any additional payment (including any Tax gross-up or other payment) from UTC RemainCo or any of its subsidiaries as a result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(viii) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on UTC, all UTC RemainCo Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment and (C) that are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Samples: Merger Agreement (Raytheon Co/), Merger Agreement (United Technologies Corp /De/)
Benefit Plans. (a) Each Pension Plan, Welfare Plan and Benefit Plan, which is currently maintained by Buyer or any of its ERISA Affiliates or to which Buyer or any of its ERISA Affiliates currently contributes, or contributed or is under any current obligation to contribute, or under which Buyer or any of its ERISA Affiliates has any liability, contingent or otherwise (including any withdrawal liability within the meaning of Section 5.13(a4201 of ERISA) (collectively, the "BUYER EMPLOYEE PLANS" and individually, a "BUYER EMPLOYEE PLAN"), and each management, employment, severance, consulting, non-compete, confidentiality, or similar agreement or contract between Buyer or any of its Subsidiaries and any Buyer Employee pursuant to which Buyer or any of its Subsidiaries has or may have any liability, contingent or otherwise ("BUYER EMPLOYEE AGREEMENT"), is listed in the Hanover Buyer Disclosure Letter lists Schedule. True and complete copies have been delivered or made available to the Company of (i) all documents embodying or relating to each material “Buyer Employee Plan and each Buyer Employee Agreement, including all amendments thereto, written interpretations thereof and trust or funding agreements with respect thereto; (ii) the two most recent annual actuarial valuations, if any, prepared for each Buyer Employee Plan; (iii) a statement of alternative form of compliance pursuant to DOL Regulation ss.2520.104-23, if any, filed for each Buyer Employee Plan which is an "employee pension benefit plan” " (as defined in Section 3(33(2) of ERISA)) for a select group of management or highly compensated employees; (iv) the most recent determination letter received from the IRS, if any, for each Buyer Employee Plan and related trust which is intended to satisfy the requirements of Section 401(a) of the Code; (v) if a Buyer Employee Plan is funded, the most recent annual and periodic accounting of Buyer Employee Plan assets; (vi) the most recent summary plan description together with the most recent summary of material modifications, if any, required under ERISA with respect to each Buyer Employee Plan; and (vii) the most recent annual reports (Series 5500 and all other material employee benefitschedules thereto) filed for plan years 1998 and 1999, bonusif any, incentiveas required under ERISA, deferred compensationin connection with each Buyer Employee Plan or related trust. None of Buyer, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover Buyer Subsidiary or any of its Buyer's Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof Affiliates has any commitment plan or formal plancommitment, whether legally binding or not, to create establish any additional employee benefit plan new Buyer Employee Plan, to enter into any Buyer Employee Agreement or to modify or change to terminate any existing Hanover Benefit Buyer Employee Plan that would affect or Buyer Employee Agreement (except to the extent required by law or to conform any Hanover such Buyer Employee except Plan or Buyer Employee Agreement to the requirements of any applicable law, in each case as previously disclosed to the ordinary course of business. Hanover has heretofore delivered Company, or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereofas required by this Agreement), nor has any related trust intention to do any of the foregoing been communicated to Buyer Employees.
(b) Buyer and each of its ERISA Affiliates has made on a timely basis all contributions or other funding vehicle, the most recent annual reports or summaries payments required to be prepared made by it under the terms of the Buyer Employee Plans, ERISA, the Code, or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan other applicable laws.
(c) Each Buyer Employee Plan intended to qualify under Section 401 of the Code is, and since its inception has been, so qualified and a determination letter has been issued by the three most recent years (AIRS to the effect that each such Buyer Employee Plan is so qualified and that each trust forming a part of any such Buyer Employee Plan is exempt from tax pursuant to Section 501(a) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for circumstances exist which would reasonably be expected to result in a material liability to Hanoveradversely affect this qualification or exemption.
(d) Except as would not, individually Each Buyer Employee Plan (and any related trust or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan other funding instrument) has been operated established, maintained, and administered in all material respects in accordance with its terms and in both form and operation is in compliance in all material respects with the applicable law, including, but not limited to, provisions of ERISA, the Code Code, and the laws other applicable laws, statutes, orders, rules and regulations (other than adoption of any applicable foreign jurisdiction. Except as would plan amendments for which the deadline has not result in a material liability to Hanoveryet expired), and all contributions reports required to be made filed with any governmental agency with respect to each Buyer Employee Plan have been timely filed, other than filings that are inconsequential.
(e) There is no litigation, arbitration, audit or investigation or administrative proceeding pending or, to the knowledge of Buyer, threatened against Buyer or any of its ERISA Affiliates or, to the knowledge of Buyer, any plan fiduciary by the IRS, the DOL, the PBGC, or any participant or beneficiary with respect to any Hanover Benefit Buyer Employee Plan have been timely madeas of the date of this Agreement. There are no pending orNo event or transaction has occurred with respect to any Buyer Employee Plan that would result in the imposition of any tax under Chapter 43 of Subtitle D of the Code. Neither Buyer nor any of its ERISA Affiliates nor, to Hanover’s Knowledgethe knowledge of Buyer, threatened claims byany plan fiduciary of any Pension or Welfare Plan maintained by Buyer or its Subsidiaries has engaged in any transaction in violation of Section 406(a) or (b) of ERISA for which no exemption exists under Section 408 of ERISA or any "prohibited transaction" (as defined in Section 4975(c)(1) of the Code) for which no exemption exists under Section 4975(c)(2) or 4975(d) of the Code, on behalf of or against is subject to any excise tax imposed by the Code or ERISA with respect to any Buyer Employee Plan.
(f) Each Buyer Employee Plan can be amended, terminated or otherwise discontinued without liability to Buyer, any of the Hanover Benefit Plans its Subsidiaries or any assets thereofof its ERISA Affiliates.
(g) No liability under any Buyer Employee Plan has been funded, other than routine claims for benefits under nor has any such plans, that, if adversely determined could, individually or in obligation been satisfied with the aggregate, reasonably be expected purchase of a contract from an insurance company as to result in a Material Adverse Effect on Hanover which Buyer or any of its Subsidiaries and no matter has received notice that such insurance company is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco insolvent or will be promptly furnished to Xxxxxx and Spinco when made) with respect to is in rehabilitation or any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoversimilar proceeding.
(eh) Each Hanover Benefit Plan intended to be “qualified” within Neither the meaning Buyer nor any of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Codeits ERISA Affiliates currently maintains, respectively, and each trust maintained under nor at any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment previous six calendar years maintained or acceleration had an obligation to contribute to, any defined benefit pension plan subject to Title IV of any amountERISA, the accrual or acceleration of any benefit or any increase "multiemployer plan" as defined in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.Section 3(37)
Appears in 2 contracts
Samples: Merger Agreement (Cantel Medical Corp), Merger Agreement (Diker Charles M)
Benefit Plans. (a) Section 5.13(a) of Other than the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA)REIT II Equity Incentive Plan, REIT II and the REIT II Subsidiaries do not and are not required to, and all other material employee benefithave not and have never been required to, bonusmaintain, incentivesponsor or contribute to, deferred compensationand do not have any liability (contingent or otherwise) with respect to, stock option (any Employee Benefit Plan. Neither REIT II nor any REIT II Subsidiary has any contract, plan or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangementscommitment, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or notbinding, to create any additional employee benefit plan or modify or change any existing Hanover Employee Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsPlan.
(b) Except as would not, individually or in the aggregate, have not had and would not reasonably be expected to result in a material liability to Hanoverhave REIT II Material Adverse Effect, (i) neither Hanover nor none of REIT II, any REIT II Subsidiary or any of its their respective ERISA Affiliates has incurred any obligation or liability with respect to or under any employee benefit plan, program or arrangement (including any agreement, program, policy or other arrangement under which any current or former employee, director or consultant has any present or future right to benefits) which has created or will or could create any obligation with respect to, or has resulted in or will or could result in any liability (contingent or otherwise) to REIT II or any of its subsidiaries.
(c) Except as individually or in the aggregate, have not had and would not reasonably be expected to have a REIT II Material Adverse Effect, the REIT II Equity Incentive Plan was established and has been administered in accordance with its terms and in compliance with all applicable Laws, including the Code. (d) None of REIT II, any REIT II Subsidiaries or any of their respective ERISA Affiliates has ever maintained, contributed to, or participated in, or otherwise has any obligation or liability in connection with: (i) a “pension plan” under Section 3(2) of ERISA that is subject to Title IV or Section 302 of ERISA or under Section 412 or 4971 of the Code that has not been satisfied in fullCode, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” (as defined in Section 3(37) of ERISA and ERISA), (iiiii) none a “multiple employer welfare arrangement” (as defined in Section 3(40) of HanoverERISA), or any ERISA Affiliate thereof has made or suffered (iv) a “complete withdrawalmultiple employer plan” or a “partial withdrawal,” (as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a413(c) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust).
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 2 contracts
Samples: Merger Agreement (Griffin Capital Essential Asset REIT, Inc.), Merger Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists With respect to each material “employee benefit plan” (”, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and all other material employee any retirement, welfare benefit, stock purchase, stock option, severance, employment, change-in-control, educational assistance, adoption assistance, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, stock option (or other equitysalary continuation, split-based), severance, change in control, welfare (including post-retirement medical and dollar life insurance, SIMPLE IRA (as defined in Section 408(p) of the Code) and fringe other material employee benefit plans, programs and agreements, programs, policies, practices or other arrangements, whether or not subject to ERISA andERISA, whether written formal or informal, oral or written, legally binding or not (iall the foregoing being herein called “Benefit Plans”), under which any employee, director, independent contractor or former employee, director or independent contractor of PSB or any of its Subsidiaries, or any spouse or dependent of any such employee or director, has any present or future right to benefits, and which is (or was prior to its termination) sponsored, maintained or contributed to or required to be contributed to by Hanover PSB or any of its Subsidiaries or to under which Hanover PSB or any of its Subsidiaries is a party and (ii) in which has or could reasonably be expected to have any individual who is currently present or has been an officerfuture liability, director contingent or employee of Hanover (a “Hanover Employee”) is a participant otherwise (the “Hanover PSB Benefit Plans”). Neither Hanover, any PSB has provided Summit a true, correct and complete copy of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan(i) the most recent three annual reports (Form 5500) filed, whether legally binding or notif any, to create any additional employee benefit plan or modify or change any existing Hanover with the IRS and, where applicable, the related audited financial statements thereof, (ii) such PSB Benefit Plan that would affect Document and all related amendments thereto, (iii) each trust agreement, summary employee booklets or handbooks, annuity contracts, insurance policies or any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available other funding instruments relating to Xxxxxx and Spinco true and complete copies of each Hanover such PSB Benefit Plan and any all related amendments thereto thereto, (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, iv) the most recent annual reports summary plan description, and any summary of material modifications for each PSB Benefit Plan, or summaries required for Benefit Plans not subject to be prepared or filed under ERISA or the Code and that are unwritten, any relevant written summaries distributed to participants, if any, (v) any current contracts with independent contractors (including actuaries, investment managers, etc.) that relate to any PSB Benefit Plan, (vi) the most recent determination letter received from (or equivalent) issued by the IRS with respect to each such plan intended to qualify any PSB Benefit Plan qualified under Section 401 401(a) of the Code Code, and (v) forms 1094 and 1095 for the three most recent years (A) the Form 5500s and attached Schedulesyears, (B) audited financial statements and (Cvi) actuarial valuation reportsany correspondence with any Governmental Entity. There are no unwritten amendments to any PSB Benefit Plan. All PSB Benefit Plans are listed on PSB Disclosure Schedule 3.13(a).
(b) Except No PSB Benefit Plan is invested in or provides the opportunity for participants or beneficiaries therein to purchase or otherwise acquire any employer securities or employer real property (within the meaning of Section 407(d) of ERISA) or any option, warrant or other right to acquire such employer securities or any interest therein.
(c) All contributions (including, without limitations, all employer contributions, employee salary reduction contributions and all premiums or other payments (other than claims)) that are due and payable on or before the Closing Date have been timely paid to or made with respect to each PSB Benefit Plan and, to the extent not presently payable, appropriate reserves have been established for the payment and properly accrued in accordance with customary accounting practices.
(d) No PSB Benefit Plan is, and neither PSB nor its Subsidiaries, nor any entity that together with PSB or its Subsidiaries would be treated as would nota single employer under Section 414 of the Code sponsors, individually maintains, contributes to (or in the aggregatehas an obligation to contribute to), reasonably be expected or has ever sponsored, maintained, or contributed to result in a material liability (or had any obligation to Hanover, contribute to) (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under a plan that is subject to Title IV or Section 302 of ERISA or under is a defined benefit plan within the meaning of Section 412 3(35) of the Code that has not been satisfied in full, and ERISA; (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
a “multiple employer plan” within the meaning of Code Section 413(c)(including plans sponsored by an employee leasing or professional employer organization), (iiii) No Hanover Benefit Plan is a “multiemployer pension plan,” (as such term is defined in Section 3(37) of ERISA and ERISA) or (iiiv) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawalmultiple employer welfare arrangement” or a “partial withdrawal,” (as such terms are respectively defined in Sections 4203 and 4205 Section 3(40) of ERISA, ). No PSB Benefit Plan is subject to the liability for which would reasonably be expected to result in a material liability to Hanoverfunding standards of Code Section 412 or 436 or Section 302 of ERISA.
(de) There have been no prohibited transactions (described under Section 406 of ERISA or Section 4975(c) of the Code), breaches of fiduciary duty or any other breaches or violations of any law by PSB or any of its affiliates, officers, directors, agents or employees, applicable to PSB Benefit Plans that would directly or indirectly subject Summit, PSB or any of their respective Subsidiaries to any material taxes, penalties or other liabilities, including any liability arising through indemnification.
(f) Except as would notset forth on PSB Disclosure Schedule 3.13(f), individually neither PSB nor any of its Subsidiaries sponsors or in maintains, contributes to, or has any obligation to contribute to any PSB Benefit Plan that is intended to meet the aggregate, reasonably be expected to result in requirements of a material liability to Hanover“qualified plan” under Section 401(a) of the Code. Except as set forth on PSB Disclosure Schedule 3.13(f), each Hanover PSB Benefit Plan has been operated and administered in compliance, in all respects in accordance material respects, with its terms and applicable law, including, but not limited to, ERISAthe Code, ERISA and the Age Discrimination in Employment Act, or any regulations or rules promulgated thereunder, and in accordance with its terms and any related trust is exempt from federal income tax under Section 501(a) of the Code and all reports, descriptions and filings required by the laws of Code, ERISA or any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made government agency with respect to any Hanover each PSB Benefit Plan have been timely made. and completely filed or distributed.
(g) There are no pending orclaims, lawsuits or actions relating to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover PSB Benefit Plans or any assets thereof, Plan (other than routine ordinary course claims for benefits being administered in accordance with claims procedures required under such plansERISA) and, thatto the knowledge of PSB none are threatened.
(h) Except as listed on PSB Disclosure Schedule 3.13(h), if adversely determined could, individually no written or in the aggregate, reasonably be expected oral representations have been made to result in a Material Adverse Effect on Hanover any employee or former employee of PSB or any of its Subsidiaries promising or guaranteeing any employer payment or funding for the continuation of medical, dental, life or disability coverage for such individual, their dependent, or any beneficiary for any period of time beyond termination of employment, except as required by Section 4980B of the Code or other applicable law, and at no matter is pending (other than routine qualification determination filingsexpense to PSB or any of its subsidiaries. Except as listed on PSB Disclosure Schedule 3.13(h), copies neither the Merger, nor subsequent events where consequences result solely as a result of which have been furnished to Xxxxxx both the occurrence of the subsequent event and Spinco the occurrence of the Merger, shall accelerate the time of payment or will be promptly furnished to Xxxxxx and Spinco when made) with respect vesting, or increase the amount, of compensation due by PSB or any of its Subsidiaries or any PSB Benefit Plan to any employee, officer, former employee or former officer of the Hanover Benefit Plans before the IRS, the United States Department PSB or any of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverits Subsidiaries.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(gi) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreementlisted on PSB Disclosure Schedule 3.13(i), the consummation of the transactions contemplated by this Agreement shall (whether alone or together with any other event) will not result by itself in any entitlement to payment to any present or with the passage former employee or director or other service provider of time in the payment PSB or any Subsidiary of PSB of any money or other property, or acceleration of any amountrights or benefits, the accrual under any PSB Benefit Plan or acceleration of any benefit other contract or existing arrangement. No such payment will be nondeductible or subject to excise tax under Code Section 4999 or 280G, nor will PSB, Summit or any increase of their respective Subsidiaries be required to “gross up” or otherwise compensate any Person because of the limits contained in such Code sections.
(j) There are no surrender charges, penalties, or other costs or fees that would be imposed by any vested interest Person against PSB or entitlement any of its Subsidiaries, any PSB Benefit Plan, or any other Person, including without limitation, any PSB Benefit Plan participant or beneficiary as a result of the consummation of the transactions contemplated by this Agreement with respect to any benefit insurance, annuity or payment investment contracts or other similar investment held by any employee, officer or director under domestic or foreign law that would, individually or PSB Benefit Plan.
(k) Each PSB Benefit Plan which is a “group health plan” (as defined in the aggregateCode and ERISA) has been operated in compliance, in all material respects, with Part 6 of Subtitle B of Title 1 of ERISA and Sections 4980B, 4980D and 4980H of the Code and any analogous state law. Each such plan is in compliance, in all material respects, with, and no such plan has been operated in a manner that would reasonably be expected to result in the incurrence of any material penalty to PSB, the Surviving Entity or any of their respective Subsidiaries under those Sections of ERISA and the Code and under the Patient Protection and Affordable Care Act and its companion bill, the Health Care and Education Reconciliation Act of 2010, or under ERISA Section 601, et. seq., and Code Section 4980B, each to the extent applicable.
(l) All obligations required to be performed by PSB and its Subsidiaries under any PSB Benefit Plan have been performed by them in all material respects and they are not in default under or in violation of any material provision of any PSB Benefit Plan. To PSB’s knowledge, no event has occurred that would constitute grounds for an enforcement action by any party against PSB or any of its Subsidiaries under part 5 of Title I of ERISA under any PSB Benefit Plan.
(m) PSB and its Subsidiaries have current contracts with one or more insurance company(ies) for each of its Benefit Plans that provide coverage for health, dental, vision, life disability, survivor income benefits, or similar welfare benefit coverages relating to any PSB Benefit Plan. None of such Benefit Plans is self-insured by PSB or funded by PSB through or provided by PSB to its employees under a voluntary employees beneficiary association (VEBA) or a multiple employer welfare arrangement (MEWA).
(n) PSB or a Company Subsidiary may, at any time, amend or terminate any PSB Benefit Plan that it sponsors or maintains and may withdraw from any PSB Benefit Plan to which it contributes (but does not sponsor or maintain), without obtaining the consent of any third party, other than an insurance company in the case of any benefit underwritten by an insurance company, and without incurring any material liability except for unpaid premiums or contributions due for the pay period that includes the effective date of such amendment, withdrawal or termination.
(o) Each PSB Benefit Plan that is a nonqualified deferred compensation plan subject to HanoverCode § 409A is, and has been at all relevant times, in material operational and documentary compliance with Code Section 409A and all regulations and guidance thereunder. No additional tax under Section 409A(a)(1)(ii) of the Code has been or is reasonably expected to be incurred by a participant in any such PSB Benefit Plan or other contract, plan, program, agreement, or arrangement. Neither PSB nor any of its Subsidiaries is a party to, or otherwise obligated under, any contract, agreement, plan or arrangement that provides for the gross-up of taxes imposed by Section 409A(a)(1)(ii) of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Summit Financial Group, Inc.), Merger Agreement (Summit Financial Group, Inc.)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with With respect to each such plan intended material Raytheon Benefit Plan, Raytheon has made available, upon request, to qualify under Section 401 UTC complete and accurate copies of the Code and the three most recent years (A) such Raytheon Benefit Plan and, to the Form 5500s and attached Schedulesextent applicable, summary plan description thereof, (B) the most recent audited financial statements and actuarial or other valuation reports prepared with respect thereto and (C) actuarial valuation reportsthe most recently received Internal Revenue Service (the “IRS”) determination letter or opinion, if applicable.
(bii) Except as would notas, individually or in the aggregate, would not reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Raytheon, (iA) each of the Raytheon Benefit Plans has been operated and administered in compliance with its terms and in accordance with Applicable Laws, including ERISA, the Code and in each case the regulations thereunder, (B) no Raytheon Benefit Plan provides welfare benefits, including death or medical benefits (whether or not insured), with respect to current or former employees or directors of Raytheon or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or comparable U.S. state or foreign law, (C) all contributions or other amounts payable by Raytheon or its subsidiaries as of the Effective Time pursuant to each Raytheon Benefit Plan in respect of current or prior plan years have been timely paid or, to the extent not yet due, have been accrued in accordance with GAAP, (D) neither Hanover Raytheon nor any of its ERISA Affiliates subsidiaries has incurred any liability under Title IV engaged in a transaction in connection with which Raytheon or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 302 409 or 502(i) of ERISA or under a tax imposed pursuant to Section 412 4975 or 4976 of the Code that has not been satisfied in full, and (iiE) there are no condition exists that would reasonably be expected pending or, to result the knowledge of Raytheon, threatened in Hanover incurring writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of, or against any such liabilityof the Raytheon Benefit Plans or any trusts related thereto.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(diii) Except as would notset forth on Section 4.1(l)(iii) of the Raytheon Disclosure Letter or as, individually or in the aggregate, would not reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover Raytheon, none of Raytheon, any of its subsidiaries or any of its Subsidiaries their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the six (6) years preceding the date of this Agreement contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and no matter is pending (other than routine qualification determination filingsnone of Raytheon, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of its subsidiaries or any of their respective ERISA Affiliates has, within the Hanover Benefit Plans before the IRSpreceding six (6) years, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result withdrawn in a material complete or partial withdrawal from any Multiemployer Plan or incurred any liability to Hanoverunder Section 4202 of ERISA.
(eiv) Each Hanover of the Raytheon Benefit Plan Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9(A) of the Code has satisfied such requirements is so qualified and, in to the knowledge of Raytheon, there are no existing circumstances or any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-affect, in any material respect, the qualified status for of any such Hanover Benefit Plan plan and (B) has received a favorable determination letter or any such trustopinion letter as to its qualification.
(fv) No Hanover Section 4.1(l)(v) of the Raytheon Disclosure Letter sets forth each Raytheon Benefit Plan that is maintained outside the jurisdiction subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the United StatesCode (each, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreementan “Raytheon Title IV Plan”). With respect to each Raytheon Title IV Plan, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldexcept for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Raytheon, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (B) no such Raytheon Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) no reportable event within the meaning of Section 4043(c) of ERISA for which the thirty (30)-day notice requirement has not been waived has occurred, (D) none of Raytheon, any of its subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069, 4204(a) or 4212(c) of ERISA, (E) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (F) no liability (other than for premiums to the PBGC) has been or, to the knowledge of Raytheon, is expected to be incurred by Raytheon or any of its subsidiaries and (G) the PBGC has not instituted proceedings to terminate any such Raytheon Title IV Plan.
(vi) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will result in (A) the acceleration of vesting, exercisability, funding or delivery of, or increase in the amount or value of, any payment, right or other benefit to any current or former employee or director of Raytheon or any of its subsidiaries or (B) result in any limitation on the right of Raytheon or any of its subsidiaries to amend, merge, terminate or receive a material liability reversion of assets from any Raytheon Benefit Plan or related trust on or after the Effective Time. Without limiting the generality of the foregoing, no amount paid or payable (whether in cash, in property, or in the form of benefits) by Raytheon or any of its subsidiaries 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.
(vii) No person is entitled to Hanoverreceive any additional payment (including any Tax gross-up or other payment) from Raytheon or any of its subsidiaries as a result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(viii) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on Raytheon, all Raytheon Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment and (C) that are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Samples: Merger Agreement (United Technologies Corp /De/), Merger Agreement (Raytheon Co/)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredWith respect to each material Telaria Benefit Plan, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or Telaria has been an officermade available, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or notupon request, to create any additional employee benefit plan or modify or change any existing Hanover Rubicon Project complete and accurate copies of (A) such Telaria Benefit Plan that would affect any Hanover Employee except in and, to the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicleextent applicable, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such summary plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedulesdescription thereof, (B) the most recent audited financial statements and actuarial or other valuation reports prepared with respect thereto and (C) actuarial valuation reportsthe most recently received Internal Revenue Service (the “IRS”) determination letter or opinion letter, if applicable.
(bii) Except as would notas, individually or and in the aggregate, would not reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Telaria, (iA) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 each of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Telaria Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan Plans has been operated and administered in all respects in accordance compliance with its terms and applicable lawin accordance with Applicable Laws, including, but not limited to, including ERISA, the Code and in each case the laws of any applicable foreign jurisdiction. Except as would regulations thereunder, (B) no Telaria Benefit Plan provides welfare benefits, including death or medical benefits (whether or not result in a material liability to Hanoverinsured), all contributions required to be made with respect to any Hanover current or former employees or directors of Telaria or its Subsidiaries beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or comparable U.S. state or foreign law, (C) all contributions or other amounts payable by Telaria or its Subsidiaries as of the Effective Time pursuant to each Telaria Benefit Plan in respect of current or prior plan years have been timely made. There paid or, to the extent not yet due, have been accrued in accordance with GAAP, (D) neither Telaria nor any of its Subsidiaries has engaged in a transaction in connection with which Telaria or its Subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code and (E) there are no pending or, to Hanover’s Knowledgethe Knowledge of Telaria, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of of, or against any of the Hanover Telaria Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldtrusts related thereto.
(iii) Except as, individually or and in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect on Hanover or Telaria, none of Telaria, any of its Subsidiaries and no matter or any of their respective ERISA Affiliates maintains, contributes to, is pending (other than routine qualification determination filingsobligated to contribute to, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) has any liability with respect to, or within the six (6) years preceding the date of this Agreement has maintained, contributed to, or was obligated to contribute to, a Multiple Employer Plan, and none of Telaria, any of its Subsidiaries or any of their respective ERISA Affiliates has, within the Hanover Benefit Plans before the IRSpreceding six (6) years, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result withdrawn in a material complete or partial withdrawal from any Multiemployer Plan or incurred any liability to Hanoverunder Section 4202 of ERISA.
(eiv) Each Hanover of the Telaria Benefit Plan Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9(A) of the Code has satisfied such requirements is so qualified and, in to the Knowledge of Telaria, there are no existing circumstances or any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-affect, in any material respect, the qualified status for of any such Hanover Benefit plan and (B) has received a favorable determination letter or opinion letter as to its qualification.
(v) None of Telaria, any of its Subsidiaries or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is obligated to contribute to, or has any liability with respect to, or within the six (6) years preceding the date of this Agreement has sponsored, maintained, contributed to, or was obligated to contribute to any Multiemployer Plan or any such trustTelaria Benefit Plan that is subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the Code (each, a “Telaria Title IV Plan”).
(fvi) No Hanover Benefit Plan is maintained outside Neither the jurisdiction execution and delivery of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, nor the consummation of the transactions contemplated by this Agreement shall not hereby (either alone or in conjunction with any other event) will result by itself in (A) the acceleration of vesting, exercisability, funding or with the passage of time delivery of, or increase in the payment amount or acceleration value of, any payment, right or other benefit to any current or former employee or director of any amount, the accrual or acceleration of any benefit Telaria or any increase of its Subsidiaries or (B) result in any vested interest limitation on the right of Telaria or entitlement any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any benefit Telaria Benefit Plan or payment by any employeerelated trust on or after the Effective Time. Without limiting the generality of the foregoing, officer no amount paid or director under domestic or foreign law that wouldcould become payable (whether in cash, individually in property, or in the aggregate, form of benefits) by Telaria or any of its Subsidiaries 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 or can reasonably be expected to result in an “excess parachute payment” within the meaning of Section 280G of the Code.
(vii) No Person is entitled to receive any additional payment (including any Tax gross-up or other payment) from Telaria or any of its Subsidiaries in the event of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(viii) Except as, individually and in the aggregate, would not reasonably be expected to have a material liability Material Adverse Effect on Telaria, all Telaria Benefit Plans subject to Hanoverthe laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment and (C) that are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Samples: Merger Agreement (Telaria, Inc.), Merger Agreement (Rubicon Project, Inc.)
Benefit Plans. (a) Section 5.13(a) of the Hanover The Seller Disclosure Letter Schedule lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredall Employee Benefit Plans of Seller or any Subsidiary thereof, maintained (ii) all employment contracts (x) between Seller and any of its employees and (y) between any Subsidiary of Seller, on the one hand, and its managing director (or contributed person performing similar functions) or any other employee whose annual compensation exceeds $150,000, on the other hand, and (iii) all plans and arrangements pursuant to or required to be contributed to by Hanover which the Seller or any of its Subsidiaries is, or may be or become, obligated to which Hanover make any payment in excess of $150,000, to confer any material benefit upon or accelerate the vesting or exercisability of any benefit for any officer, director, employee or agent of Seller or any of its Subsidiaries as a result of or in connection with any of the transactions contemplated by this Agreement; provided, however, that no such disclosure shall be required of any Employee Benefits Plan that Seller or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed provide under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liabilityapplicable law.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) Seller and its Subsidiaries have complied with all laws relating to the employment of ERISA labor, including provisions thereof relating to wages, hours, equal opportunity, and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, collective bargaining except where the liability for which would failure so to comply could not reasonably be expected to result in have a material liability Material Adverse Effect on Seller, (ii) no labor dispute with employees of Seller exists or, to Hanover.
(d) Except the knowledge of Seller, is threatened, except as would not, individually or in the aggregate, could not reasonably be expected to result have a Material Adverse Effect on Seller, (iii) each Employee Benefit Plan conforms in a all material respects to, and its administration is in conformity in all material respects with, all applicable laws, no material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required or is expected to be made incurred by Seller with respect to any Hanover Employee Benefit Plan except for benefits payable or contributions due under the terms of such plans, and full payment has been made of all amounts that Seller is required to have been timely made. paid as a contribution to each Employee Benefit Plan, (iv) Seller has made available to the Surviving Company a true and correct copy of each of the Employee Benefit Plans and all contracts relating thereto or to the funding thereof, (v) all Employee Benefit Plans intended to satisfy applicable tax qualification requirements or other requirements necessary to secure favorable tax or other legal treatment comply in all material respects with such requirements and (vi) appropriate accruals for all obligations under the Employee Benefit Plans are reflected in the financial statements of Seller.
(c) There are no pending or, to Hanover’s Knowledgethe knowledge of Seller, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover indemnification by Seller or any of its Subsidiaries in favor of directors, officers, employees and no matter is pending (other than routine qualification determination filings, copies agents of which have been furnished to Xxxxxx and Spinco Seller or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverits Subsidiaries.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 2 contracts
Samples: Reorganization Agreement (Central European Media Enterprises LTD), Reorganization Agreement (Lauder Ronald S)
Benefit Plans. (ai) Section 5.13(a3.2(i)(i)(A) of the Hanover Thermo Electron Disclosure Letter lists Schedule sets forth a true and complete list of each material “employee Benefit Plan as of the date hereof with or for the benefit plan” (as defined in Section 3(3) of ERISA)any current or former employee, and all other material employee benefit, bonus, incentive, deferred compensation, stock option (officer or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover director of Thermo Electron or any of its Subsidiaries or ERISA Affiliates or with respect to which Hanover -42- Thermo Electron or any of its Subsidiaries or ERISA Affiliates have any material obligations or liabilities, including each material Benefit Plan that has been adopted or maintained by Thermo Electron, any of its Subsidiaries or any Affiliate, whether formally or informally, or with respect to which Thermo Electron, any of its Subsidiaries or any Affiliate will or may have any material liability, for the benefit of employees or consultants of Thermo Electron or any of its Subsidiaries who perform services outside the United States (collectively, the "Thermo Electron Benefit Plans"). With respect to the Thermo Electron Benefit Plans, no event has occurred, and there exists no condition or set of circumstances, which would reasonably be expected to have a Material Adverse Effect on Thermo Electron and its Subsidiaries, taken as a whole, under ERISA, the Code or any other Applicable Laws. Neither Thermo Electron, nor any of its Subsidiaries, nor, to the Knowledge of Thermo Electron, any other Person, has any express commitment, whether legally enforceable or not, to modify, change or terminate any Thermo Electron Benefit Plan, other than with respect to a modification, change or termination required by ERISA or the Code, or any other Applicable Law or administrative changes that do not increase the liabilities or obligations under any such plans. Thermo Electron has delivered or made available to Fisher true, correct and complete copies of all Thermo Electron Xxxxxxt Plans and, with respect thereto, if applicable, all amendments, trust agreements, insurance contracts, other funding vehicles, determination letters issued by the IRS, the most recent annual reports (Form 5500 series) filed with the IRS and the most recent actuarial report or other financial statement relating to such Thermo Electron Benefit Plan.
(ii) Each Thermo Electron Benefit Plan has been, in all material respects, administered and operated in accordance with its terms, with the applicable provisions of ERISA, the Code and other Applicable Laws and with the terms of all applicable collective bargaining agreements. Each Thermo Electron Benefit Plan, including any material amendments thereto, that is required to obtain Approval has received such Approval (or there remains a period of time in which to obtain such Approval retroactive to the date of any material amendment that has not previously received such Approval), and no event has occurred which would reasonably be expected to result in the revocation of such Approval or the imposition of material sanctions by such authorities. Without limiting the generality of the foregoing, each Thermo Electron Benefit Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter from the IRS that the Thermo Electron Benefit Plan is so qualified and all related trusts are exempt from U.S. federal income taxation under Section 501(a) of the Code, and, to the Knowledge of Thermo Electron, nothing has occurred, whether by action or by failure to act, which would reasonably be expected to cause the loss of such qualification or exemption.
(iii) As of the date hereof to the Knowledge of Thermo Electron, no oral or written representation or commitment with respect to any material aspect of any Thermo Electron Benefit Plan has been made to an employee or former employee of Thermo Electron or any of its Subsidiaries by an authorized Thermo Electron employee that is not materially in accordance with the written or otherwise pre-existing terms and provisions of such Thermo Electron Benefit Plans. As of the date hereof, to the Knowledge of Thermo Electron, neither Thermo Electron nor any of its Subsidiaries has entered into any agreement, arrangement or understanding, whether written or oral, with any trade union, works council or other employee representative body or any material number or category of its employees which would prevent, restrict or materially impede the implementation of any layoff, redundancy, severance or similar program within its or their respective workforces (or any part of them).
(iv) There are no material unresolved claims or disputes under the terms of, or in connection with, any Thermo Electron Benefit Plan (other than routine undisputed claims for benefits), and no action, legal or otherwise, has been commenced or threatened with respect to any material claim or otherwise in connection with a Thermo Electron Benefit Plan.
(v) With respect to each Funded Retirement Plan of Thermo Electron or any of its Subsidiaries, the aggregate fair market value of the assets of such Funded Retirement Plan was, as of the most recently computed actuarial valuation of such plan, equal to or greater than the aggregate value of its liabilities assessed on an ongoing basis and calculated in accordance with the actuarial methods and assumptions used in such valuation pursuant to such Funded Retirement Plan and Applicable Law and GAAP. None of Thermo Electron or any ERISA Affiliate of Thermo Electron has incurred, or is reasonably expected to incur, any liability to a Funded Retirement Plan under Title IV of ERISA (other than for contributions not yet due) or to the Pension Benefit Guaranty Corporation (other than for payment of premiums not yet due) that, when aggregated with other such liabilities, would reasonably be expected to result in a material liability of Thermo Electron and its Subsidiaries, taken as a whole, which liability has not been fully paid.
(vi) Section 3.1(i)(vi) of the Thermo Electron Disclosure Schedule sets forth a true and complete list of each Multiemployer Plan to which Thermo Electron or any ERISA Affiliate of Thermo Electron contributes or is required to contribute, or to which, or with respect to which, Thermo Electron or any ERISA Affiliate of Thermo Electron has any material liability. If any Thermo Electron Multiemployer Plan is subject to Title IV of ERISA, then, (A) neither Thermo Electron nor any ERISA Affiliate of Thermo Electron has made or suffered a "complete withdrawal" or a "partial withdrawal," as such terms are respectively defined in Sections 4203 and 4205 of ERISA (or any liability resulting therefrom has been satisfied in full), (B) no event has occurred that presents a material risk of a complete or partial withdrawal, (C) neither Thermo Electron nor any ERISA Affiliate of Thermo Electron has any contingent liability under Section 4204 of ERISA, (D) no circumstances exist that present a material risk that any such plan will go into reorganization, and (E) to the best of Thermo Electron's Knowledge, the aggregate withdrawal liability of Thermo Electron and each ERISA Affiliate of Thermo Electron computed as if a complete withdrawal by Thermo Electron and any ERISA Affiliate of Thermo Electron had occurred under each such Thermo Electron Benefit Plan on the date hereof, would not reasonably be expected to result in a material liability to Thermo Electron. No Thermo Electron Benefit Plan subject to ERISA is a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA.
(vii) No Thermo Electron Benefit Plan provides health benefits (whether or not insured) with respect to employees or former employees of Thermo Electron or any of its Subsidiaries after retirement or other termination of service (other than coverage mandated by Applicable Laws or benefits, the full cost of which is borne by the employee or former employee).
(viii) Neither the negotiation and execution of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Thermo Electron Benefit Plan (for this purpose, Thermo Electron Benefit Plan (other than with respect to those Plans that are Thermo Electron Foreign Plans) shall be determined without regard to whether any plan, agreement, policy, understanding or arrangement is material despite the use of such qualifier in Section 3.1(i)(i) for purposes of the definition of Benefit Plan and Section 3.2(i)(i) for purposes of the definition of Thermo Electron Benefit Plan) that will or may result in any payment (whether of severance pay or otherwise), acceleration of payment, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee or former employee of Thermo Electron or any of its Subsidiaries or limit the ability to amend, terminate or receive a reversion of assets from any Thermo Electron Benefit Plan or related trust. There is no contract, agreement, plan or arrangement with an employee or former employee of Thermo Electron to which Thermo Electron or any of its Subsidiaries is a party as of the date of this Agreement that, individually or collectively and as a result of the transaction contemplated hereby (ii) in which any individual who is currently whether alone or has been an officer, director or employee upon the occurrence of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change subsequent events) would reasonably be expected to give rise to the payment of any existing Hanover Benefit Plan amount that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered not be deductible pursuant to Sections 280G or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 162(m) of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(bix) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of Thermo Electron and its Subsidiaries and no matter is pending (other than routine qualification determination filingsSubsidiaries, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) taken as a whole, with respect to any each Thermo Electron Benefit Plan established or maintained outside of the Hanover Benefit Plans before the IRS, the United States Department for the benefit of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning employees of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan Thermo Electron or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction Subsidiary of the United States, or covers any employee Thermo Electron residing or working outside the United States.
States (geach, a "Thermo Electron Foreign Plan"): (i) Except as otherwise provided each Thermo Electron Foreign Plan is in or contemplated by this Agreement or any Executed Transaction Agreementcompliance with the applicable provisions of the laws and regulations regarding employee benefits, mandatory contributions and retirement plans of each jurisdiction applicable to such Thermo Electron Foreign Plan; (ii) each Thermo Electron Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities and (iii) the fair market value of the assets of each funded Thermo Electron Foreign Plan, the consummation liability of each insurer for any Thermo Electron Foreign Plan funded through insurance or the book reserve established for any Thermo Electron Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the transactions Closing Date, with respect to all current and former participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Thermo Electron Foreign Plan and no transaction contemplated by this Agreement shall not result by itself cause such assets or insurance obligations to be less than such benefit obligations, and any and all amounts required to be accrued with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement respect to any benefit Thermo Electron Foreign Plan or payment by pursuant to any employeestatutory requirements pertaining to employee benefits, officer mandatory contributions, retirement plans or director under domestic similar benefits, have been properly and timely accrued, including accruals relating to any severance, termination pay or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverprofit sharing benefits.
Appears in 2 contracts
Samples: Merger Agreement (Fisher Scientific International Inc), Merger Agreement (Thermo Electron Corp)
Benefit Plans. (ai) Section 5.13(a) of the Hanover Disclosure Letter lists With respect to each material “employee benefit plan (including, without limitation, any "employee benefit plan” (", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and ) (all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-basedthe foregoing being herein called "Benefit Plans"), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or First-Knox xx any Subsidiary of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and First-Knox (ii) in which any individual who is currently or has been an officerxxe "First-Knox Xxxefit Plans"), director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or First-Knox xxx made available to Xxxxxx and Spinco Park a true and complete copies correct copy of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, A) the most recent annual reports report (Form 5500) filed with the IRS, (B) such First-Knox Xxxefit Plan, (C) each trust agreement relating to such First-Knox Xxxefit Plan, (D) the most recent summary plan description for each First-Knox Xxxefit Plan for which a summary plan description is required, (E) the most recent actuarial report or summaries required valuation relating to be prepared or filed under a First-Knox Xxxefit Plan subject to Title IV of ERISA or the Code and (F) the most recent determination letter received from issued by the IRS with respect to each such plan intended to qualify any First-Knox Xxxefit Plan qualified under Section 401 (a) of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(bii) Except as would notWith respect to the First-Knox Xxxefit Plans, individually or and in the aggregate, reasonably be expected no event has occurred and, to result the knowledge of First-Knox, xxere exists no condition or set of circumstances, in a material liability to Hanover, (i) neither Hanover nor connection with which First-Knox xx any of its ERISA Affiliates has incurred Subsidiaries could be subject to any liability that is reasonably likely to have a material adverse effect on First-Knox (xxcept liability for benefits claims and funding obligations payable in the ordinary course) under Title IV or Section 302 of ERISA or under Section 412 of ERISA, the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring or any such liabilityother applicable law.
(iiii) No Hanover Benefit Each First-Knox Xxxefit Plan complies in all material respects, and has been administered to date in material compliance, with the requirements of ERISA and the Code, to the extent applicable. All reporting and disclosure requirements of ERISA and the Code have been met in all respects by each such First-Knox Xxxefit Plan, to the extent applicable. Each First-Knox Xxxefit Plan that is a “multiemployer an employee pension plan,” benefit plan (as defined in Section 3(373(2) of ERISA and (iiERISA) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter that is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of a qualified plan under Section 401(a) of the Code has received a been amended to comply in all material respects with the current law and First-Knox xxx obtained favorable determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under letters with respect to all such plans. Neither First-Knox xxx any Subsidiary of First-Knox xxx any liability on account of any accumulated funding deficiency (as defined in Section 401(a) 412 of the Code, respectively, and each trust maintained ) or on account of any failure to make contributions to or pay benefits under any Hanover such First-Knox Xxxefit Plan nor is First-Knox xxxre of any claim pending or threatened to be brought by any party regarding such matters, other than routine claims for benefits. No prohibited transaction has occurred with respect to any First-Knox Xxxefit Plan that would result, directly or indirectly, in the imposition of any excise tax under ERISA or the Code and no reportable event under ERISA has occurred with respect to any First-Knox Xxxefit Plan. Neither First-Knox xxx any Subsidiary of First-Knox xx (A) a defendant in any lawsuit or criminal action concerning such entity's conduct as a fiduciary, party-in-interest, or disqualified person with respect to any First-Knox Xxxefit Plan; (B) under investigation or examination by the Department of Labor, Internal Revenue Service, Justice Department, or Pension Benefit Plan intended to satisfy Guaranty Corporation involving compliance with ERISA or the requirements of Section 501(c)(9) provisions of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known relating to exist that would reasonably be expected employee benefit plans; and (C) required to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trustcontribute to a "multiemployer plan" within the meaning of Section 3(37) of ERISA.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 2 contracts
Samples: Merger Agreement (First Knox Banc Corp), Merger Agreement (Park National Corp /Oh/)
Benefit Plans. (ai) Section 5.13(aSchedule 3.1(u) of the Hanover Xxxxxxx Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is contains a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete list of all Xxxxxxx Benefit Plans. Complete copies of each Hanover all material Xxxxxxx Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, Plans including, but not limited to, ERISAany material trust instruments, the Code insurance contracts and the laws of any applicable foreign jurisdiction. Except as would not result in a all amendments thereto have been provided to Mountain.
(ii) Xxxxxxx has no material liability for life, health, medical or other welfare benefits to Hanoverformer employees or beneficiaries or dependents thereof, all and there has been no communication to employees by Xxxxxxx which could reasonably be interpreted to promise or guarantee such employees retiree health or life insurance or other retiree death benefits on a permanent basis.
(iii) No Xxxxxxx Benefit Plan is a “registered pension plan” as such term is defined in the Tax Act.
(iv) Each Xxxxxxx Benefit Plan has been operated in accordance with its terms and any contributions required to be made with under each Xxxxxxx Benefit Plan, as of the date hereof, have been timely made and all obligations in respect to any Hanover of each Xxxxxxx Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or properly accrued and reflected in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverXxxxxxx Financial Statements.
(ev) Each Hanover There has been no amendment to, announcement by Xxxxxxx relating to, or change in employee participation or coverage under, any Xxxxxxx Benefit Plan intended to be “qualified” within which would increase materially the meaning expense of Section 401(amaintaining such plan above the level of the expense incurred therefor for the most recent fiscal year. Except as disclosed in Schedule 3.1(u) of the Code has received a determination letter from Xxxxxxx Disclosure Letter, neither the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) execution of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, nor the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage Xxxxxxx Arrangement will (i) entitle any employees of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit Xxxxxxx to xxxxxxxxx pay or any increase in severance pay upon any vested interest termination of employment after the date hereof, (ii) accelerate the time of payment or entitlement to any benefit vesting or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material liability obligation pursuant to, any of the Xxxxxxx Benefit Plans, or (iii) limit or restrict the right of Xxxxxxx or, after the consummation of the Xxxxxxx Arrangement, Mountain to Hanovermerge, amend or terminate any of the Xxxxxxx Benefit Plans.
Appears in 2 contracts
Samples: Arrangement Agreement (Mountain Province Diamonds Inc.), Arrangement Agreement (Mountain Province Diamonds Inc.)
Benefit Plans. (a) Section 5.13(a) 3.09 of the Hanover Maleic Business Disclosure Letter lists each material “contains a list of all "employee pension benefit plan” plans" (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), maintained or contributed to by Ashland for the benefit of any officers or employees of the Maleic Business ("Maleic Pension Plans") and all "employee welfare benefit plans" (as defined in Section
3(1) of ERISA), and all other material employee benefit, bonus, incentivestock option, stock purchase, deferred compensation, stock option (compensation plans or arrangements and other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and employee fringe benefit plansplans maintained, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to to, by Hanover Ashland or any of its Subsidiaries affiliates for the benefit of one or to which Hanover more current or former employees of the Maleic Business (other than any former employee of the Maleic Business who became employed by MAP or any of its Subsidiaries is subsidiaries following termination of employment with Ashland or any of its affiliates) (each, a party "Maleic Business Employee") (all the foregoing, including Maleic Pension Plans, being herein called "Maleic Benefit Plans"). Ashland has provided to Marathon true, complete and correct copies of (i) each Maleic Benefit Plan (or, in the case of any unwritten Maleic Benefit Plans, fair and accurate summary descriptions thereof), (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the two most recent annual reports or summaries required to be prepared or on Form 5500 filed under ERISA or with the Code and the most recent determination letter received from the IRS Internal Revenue Service with respect to each Maleic Benefit Plan (if any such plan intended to qualify under Section 401 of report was required), (iii) the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements summary plan description for each Maleic Benefit Plan for which such a summary plan description is required and (Civ) actuarial valuation reportseach trust agreement, group annuity contract or other funding and financing arrangement relating to any Maleic Benefit Plan.
(b) Except There does not exist as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in fulldate of this Agreement, and (ii) no condition exists nor do any circumstances exist as of the date of this Agreement that would reasonably be expected to result in Hanover incurring in, any such liability.
Employee Benefits Liability (i) No Hanover as defined below), whether under any Maleic Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanoveror otherwise, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan become a liability of HoldCo or any such trust.
of its affiliates at or after the Closing. "Employee Benefits Liability" means any liability of Ashland or any entity required to be treated as a single employer under Section 414(b), (fc), (m) No Hanover Benefit Plan is maintained outside the jurisdiction or (o) of the United StatesCode with Ashland prior to the Closing under (i) Sections 302, 405, 409 or covers any employee residing Title IV of ERISA, (ii) Section 412, 4971 or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation 4975 of the transactions contemplated by this Agreement shall not result by itself Code or with (iii) Sections 601 et. seq. and 701 et seq. of ERISA and Section 4980B and Sections 9801 et seq. of the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverCode.
Appears in 2 contracts
Samples: Assignment and Assumption Agreement (Ashland Inc), Assignment and Assumption Agreement (Ashland Inc)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, None of the employee benefit plans maintained or contributed to or required to be contributed to at any time by Hanover the Company or any of its Subsidiaries Subsidiary or to the trusts created thereunder has engaged in a prohibited transaction which Hanover or could subject any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional such employee benefit plan or modify trust to a material tax or change penalty on prohibited transactions imposed under Internal Revenue Code Section 4975 or ERISA;
(ii) None of the employee benefit plans maintained at any existing Hanover Benefit Plan that would affect time by the Company or any Hanover Employee except in the ordinary course Subsidiary which are employee pension benefit plans and which are subject to Title IV of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except trusts created thereunder has been terminated so as would not, individually or in the aggregate, reasonably be expected to result in a material liability liability, fine or penalty of either Borrower under ERISA nor has any such employee benefit plan of the Company or any Subsidiary incurred any material liability, fine or penalty to Hanoverthe Pension Benefit Guaranty Corporation established pursuant to ERISA, (i) other than for required insurance premiums which have been paid or are not yet due and payable; neither Hanover the Company nor any Subsidiary has withdrawn from or caused a partial withdrawal to occur with respect to any Multi-employer Plan resulting in any assessed and unpaid withdrawal liability; the Company and the Subsidiaries have made or provided for all contributions to all such employee pension benefit plans which they maintain and which are required as of its ERISA Affiliates the end of the most recent fiscal year under each such plan; neither the Company nor any Subsidiary has incurred any liability accumulated funding deficiency with respect to any such plan, whether or not waived; nor has there been any reportable event, or other event or condition, which presents a material risk of termination of any such employee benefit plan by such Pension Benefit Guaranty Corporation;
(iii) Except as set forth in Schedule 6.01(p), the present value of all vested accrued benefits under the employee pension benefit plans which are subject to Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, maintained by the liability Company or any Subsidiary, did not, as of the most recent valuation date for which would reasonably be expected each such plan, exceed the then current value of the assets of such employee benefit plans allocable to result in a material liability to Hanover.such benefits;
(div) Except as would not, individually The consummation of the Loans and the issuance of the Letters of Credit provided for in Article II and Article III will not involve any prohibited transaction under ERISA which is not subject to a statutory or in administrative exemption;
(v) To the aggregate, reasonably be expected to result in a material liability to Hanoverbest of the Company's knowledge, each Hanover Benefit Plan employee pension benefit plan subject to Title IV of ERISA, maintained by the Company or any Subsidiary, has been operated and administered in all respects in accordance with its terms in all material respects and is in compliance in all material respects with all applicable lawrequirements of ERISA and other applicable laws, including, but not limited to, ERISA, the Code regulations and the laws of any applicable foreign jurisdiction. Except as would not result in a rules;
(vi) There has been no material withdrawal liability to Hanover, all contributions required to be made incurred and unpaid with respect to any Hanover Benefit Multi-employer Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of which the Hanover Benefit Plans Company or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually Subsidiary is or in the aggregate, reasonably be expected to result in was a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.contributor;
(evii) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, As used in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of terms "employee benefit plan," "employee pension benefit plan," "accumulated funding deficiency," "reportable event," and "accrued benefits" shall have the transactions contemplated by this Agreement respective meanings assigned to them in ERISA, and the term "prohibited transaction" shall not result by itself or with have the passage of time meaning assigned to it in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.Code Section 4975 and ERISA;
Appears in 2 contracts
Samples: Credit Facilities and Reimbursement Agreement (Autonation Inc /Fl), Reimbursement Agreement (Republic Industries Inc)
Benefit Plans. (a) Section 5.13(a) Schedule 2.17 hereto sets forth a true and complete list of the Hanover Disclosure Letter lists each all material “employee benefit plans or arrangements that are pension, profit-sharing, savings, retirement, supplemental retirement, employment, consulting, severance pay, termination, executive compensation, incentive compensation, deferred compensation, bonus, stock purchase, stock option, phantom stock or other equity-based compensation, change-in-control, retention, salary continuation, vacation, sick leave, disability death benefit, group insurance, hospitalization, medical, dental, life, Code Section 125 “cafeteria” or “flexible” benefit, employee loan, education assistance or fringe benefit plan” (as defined , whether written or oral, including any plans described in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangementsemployee benefits plan, whether or not subject to ERISA andERISA, whether written under which current or oral (i) sponsoredformer Business Employees have any present or future rights to benefits, maintained or contributed with respect to or required to be contributed to by Hanover which the Sellers or any of its Subsidiaries or their ERISA Affiliates have any obligation to which Hanover contribute or any of its Subsidiaries is a party and (ii) in which current or future liability with respect to any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant Business Employee (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any The Sellers have no obligation or contractual commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or compensation plans, policies or arrangements that would cover the Business Employees or, except as may be required by applicable law, to modify or change any existing Hanover Benefit Plan in a manner that would affect could increase the benefits provided to any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or Business Employees thereunder.
(b) The Sellers have made available to Xxxxxx and Spinco true and complete the Buyers copies (or descriptions, if not in writing) of each Benefit Plan and, to the extent applicable with respect thereto, copies of each Hanover Benefit Plan and any amendments thereto (related trusts, funding agreements or if the plan is not a written planinsurance policies, a description thereof), any related trust or other funding vehicleamendments, the most recent annual reports report (Form 5500), determination or summaries required to be prepared or filed under ERISA or opinion letter issued by the Code IRS, the most recent summary plan description, summary of material modifications, audited financial statements, and the most recent actuarial valuation report (if applicable).
(c) With respect to each Benefit Plan: (i) such plan has been established and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable laws; (ii) no breach of fiduciary duty has occurred with respect to which the Sellers or any Benefit Plan would be liable in any respect; (iii) no “prohibited transaction” (within the meaning of either Section 4975(c) of the Code or Section 406 of ERISA) has occurred with respect to which the Sellers or any Benefit Plan would be liable in any material respect; and (iv) each Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified and has received a favorable determination letter received from the IRS with respect to each such plan intended that effect, and to qualify under Section 401 the Knowledge of the Code and the three most recent years (A) the Form 5500s and attached SchedulesSellers, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually there are no facts or in the aggregate, circumstances that could reasonably be expected to result in a cause the loss of such qualification or the imposition of any material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would notset forth on Schedule 2.17, individually or in neither the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated execution and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws delivery of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, nor the consummation of the transactions contemplated by this Agreement shall not hereby will (either alone or in combination with another event) (i) result by itself in any payment becoming due, or with increase the passage amount of time any compensation due to any Offered Employee; (ii) increase any benefits otherwise payable under any Benefit Plan or otherwise; (iii) result in the acceleration of the time of payment or acceleration vesting of any amount, such compensation or benefits with respect to any Offered Employee; or (iv) cause the accrual or acceleration payment of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law amount that wouldcould, individually or in combination with any other such payment, constitute an “excess parachute payment,” as defined in Section 280G(b)(1) of the aggregateCode with respect to any Offered Employee.
(e) Except as set forth on Schedule 2.17, reasonably be expected no Benefit Plan is a “multiemployer” plan within the meaning of Section 4001(a)(3) of ERISA (“Multiemployer Plan”) or subject to result in Title IV of ERISA. The Sellers have not (i) terminated or filed any notice of intent to terminate, any Title IV Plan, (ii) incurred any outstanding liability under Section 4062 of ERISA to the PBGC, or to a material trustee appointed under Section 4042 of ERISA, or (iii) incurred a complete or partial withdrawal from a Multiemployer Plan, within the last six (6) years. Except as set forth on Schedule 2.17, neither the Sellers nor any of their ERISA Affiliates have incurred any liability to Hanoveror on account of any Benefit Plan pursuant to Title IV of ERISA, during the last six (6) years, which has not been fully paid. To the Knowledge of the Sellers, there is no ERISA Affiliate Liability.
(f) Except as set forth on Schedule 2.17, the Sellers have no obligation to provide or make available post-employment welfare benefits or welfare benefit coverage for any current Business Employee, or for any other person, except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”).
(g) There has been no “mass layoff” or “plant closing” (as defined by the Worker Adjustment and Retraining Notification Act of 1988 (“WARN”)) with respect to the Sellers within the past six (6) months. The Sellers have not incurred any liability or obligation under WARN, or any similar foreign, state or local law that remains unsatisfied within the past three (3) years.
(h) Except as set forth on Schedule 2.17, there are no pending, or to the Sellers’ Knowledge, threatened claims by or on behalf of any Benefit Plan, or by any employee or beneficiary covered under any such Benefit Plan with respect to any such Benefit Plan (other than routine claims for benefits).
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Easton-Bell Sports, Inc.)
Benefit Plans. (ai) Section 5.13(a3.2(i)(i)(A) of the Hanover Fxxxxx Disclosure Letter lists Schedule sets forth a true and complete list of each material “employee Benefit Plan with or for the benefit plan” (as defined in Section 3(3) of ERISA)any current or former employee, and all other material employee benefit, bonus, incentive, deferred compensation, stock option (officer or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover director of Fxxxxx or any of its Subsidiaries or ERISA Affiliates or with respect to which Hanover Fxxxxx or any of its Subsidiaries is a party and (ii) in which or ERISA Affiliates have any individual who is currently obligations or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant liabilities (the “Hanover Fxxxxx Benefit Plans”). With respect to the Fxxxxx Benefit Plans, no event has occurred, and there exists no condition or set of circumstances, which would reasonably be expected to have a Material Adverse Effect on Fxxxxx and its Subsidiaries, taken as a whole, under ERISA, the Code or any other Applicable Laws. Neither HanoverFxxxxx, nor any of its Subsidiaries nor Subsidiaries, nor, to the Knowledge of Fxxxxx, any ERISA Affiliate thereof other Person, has any commitment express or formal planimplied commitment, whether legally binding enforceable or not, to create modify, change or terminate any additional employee benefit plan Fxxxxx Benefit Plan, other than with respect to a modification, change or modify termination required by ERISA or change the Code or any existing Hanover Benefit Plan that would affect any Hanover Employee except other Applicable Laws. Except as set forth in Section 3.2(i)(i)(B) of the ordinary course of business. Hanover Fxxxxx Disclosure Schedule, Fxxxxx has heretofore delivered or made available to Xxxxxx and Spinco true Apogent true, correct and complete copies of each Hanover all Fxxxxx Benefit Plan and any amendments thereto Plans (or, if not so delivered, has delivered or if the plan is not made available to Apogent a written plansummary of their material terms) and, a description thereof)with respect thereto, any related all amendments, trust or agreements, insurance Contracts, other funding vehiclevehicles, determination letters issued by the Internal Revenue Service, the most recent annual reports or summaries required to be prepared or (Form 5500 series) filed under ERISA or with the Code Internal Revenue Service and the most recent determination letter received from actuarial report or other financial statement relating to such Fxxxxx Benefit Plan.
(ii) Each Fxxxxx Benefit Plan has been, in all material respects, administered and operated in accordance with its terms, with the IRS with respect to each such plan intended to qualify under Section 401 applicable provisions of ERISA, the Code and other Applicable Laws and with the three most recent years terms of all applicable collective bargaining agreements. Each Fxxxxx Benefit Plan, including any material amendments thereto, that is capable of Approval has received such Approval (A) or there remains a period of time in which to obtain such Approval retroactive to the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a date of any material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code amendment that has not been satisfied in fullpreviously received such Approval), and (ii) no condition exists that event has occurred which would reasonably be expected to result in Hanover incurring any the revocation of such liabilityApproval or the imposition of material sanctions by such authorities. Without limiting the generality of the foregoing, each Fxxxxx Benefit Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter from the Internal Revenue Service that the Fxxxxx Benefit Plan is so qualified and all related trusts are exempt from U.S. federal income taxation under Section 501(a) of the Code, and, to the Knowledge of Fxxxxx, nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification or exemption.
(iiii) No Hanover Except as set forth in Section 3.2(i)(iii) of the Fxxxxx Disclosure Schedule, to the Knowledge of Fxxxxx, no oral or written representation or commitment with respect to any material aspect of any Fxxxxx Benefit Plan has been made to an employee or former employee of Fxxxxx or any of its Subsidiaries by an authorized Fxxxxx employee that is not materially in accordance with the written or otherwise pre-existing terms and provisions of such Fxxxxx Benefit Plans. To the Knowledge of Fxxxxx, neither Fxxxxx nor any of its Subsidiaries has entered into any agreement, arrangement or understanding, whether written or oral, with any trade union, works council or other employee representative body or any material number or category of its employees which would prevent, restrict or materially impede the implementation of any layoff, redundancy, severance or similar program within its or their respective workforces (or any part of them).
(iv) There are no material unresolved claims or disputes under the terms of, or in connection with, any Fxxxxx Benefit Plan (other than routine undisputed claims for benefits), and no action, legal or otherwise, has been commenced or threatened with respect to any material claim or otherwise in connection with a “multiemployer pension plan,” Fxxxxx Benefit Plan.
(v) Except as defined set forth in Section 3(373.2(i)(v) of ERISA the Fxxxxx Disclosure Schedule, with respect to each Funded Retirement Plan of Fxxxxx or any of its Subsidiaries, the aggregate value of the assets of such Funded Retirement Plan is equal to or greater than the aggregate value of its liabilities assessed on an ongoing and (ii) none terminated basis and calculated in accordance with the actuarial methods and assumptions used in such valuation pursuant to such Funded Retirement Plan and Applicable Laws and GAAP. None of Hanover, Fxxxxx or any ERISA Affiliate thereof of Fxxxxx has made incurred, or suffered is reasonably expected to incur, any liability to a “complete withdrawal” Funded Retirement Plan under Title IV of ERISA (other than for contributions not yet due) or a “partial withdrawal,” as to the Pension Benefit Guaranty Corporation (other than for payment of premiums not yet due) that, when aggregated with other such terms are respectively defined in Sections 4203 and 4205 of ERISAliabilities, the liability for which would reasonably be expected to result in a material liability to Hanoverof Fxxxxx and its Subsidiaries, taken as a whole, which liability has not been fully paid.
(dvi) Section 3.2(i)(vi) of the Fxxxxx Disclosure Schedule sets forth a true and complete list of each Multiemployer Plan to which Fxxxxx or any ERISA Affiliate of Fxxxxx contributes or is required to contribute, or to which, or with respect to which, Fxxxxx or any ERISA Affiliate of Fxxxxx has any material liability.
(vii) Except as would notset forth in Section 3.2(i)(vii) of the Fxxxxx Disclosure Schedule, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover no Fxxxxx Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable lawprovides health benefits (whether or not insured), including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf employees or former employees of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover Fxxxxx or any of its Subsidiaries and no matter is pending after retirement or other termination of service (other than routine qualification determination filingscoverage mandated by Applicable Laws or benefits, copies the full cost of which have been furnished to Xxxxxx and Spinco is borne by the employee or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverformer employee).
(eviii) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Except as set forth in Section 401(a3.2(i)(viii)(A) of the Code has received a determination letter from Fxxxxx Disclosure Schedule, neither the IRS stating that they negotiation and the trusts maintained thereunder are exempt from taxation under Section 401(a) execution of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, nor the consummation of the transactions contemplated by hereby will (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Fxxxxx Benefit Plan that will or may result in any payment (whether of severance pay or otherwise), acceleration of payment, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee or former employee of Fxxxxx or any of its Subsidiaries. Except as set forth in Section 3.2(i)(viii)(B) of the Fxxxxx Disclosure Schedule, there is no contract, agreement, plan or arrangement with an employee or former employee of Fxxxxx to which Fxxxxx or any of its Subsidiaries is a party as of the date of this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldthat, individually or in collectively and as a result of the aggregatetransaction contemplated hereby (whether alone or upon the occurrence of any additional or subsequent events) or otherwise, would reasonably be expected to result in a material liability give rise to Hanoverthe payment of any amount that would not be deductible pursuant to Sections 280G or 162(m) of the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fisher Scientific International Inc), Agreement and Plan of Merger (Apogent Technologies Inc)
Benefit Plans. (ai) Section 5.13(a4.1(l)(i) of the Hanover Janus Disclosure Letter lists each Schedule sets forth a true and complete list, as of the date hereof, of all material “employee benefit plan” Janus Plans.
(as defined in Section 3(3ii) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject Janus has made available to ERISA and, whether written or oral Xxxxxxxxx: (i) sponsoredcopies of all material documents setting forth the terms of each material Janus Plan, maintained or contributed to or required to be contributed to by Hanover or including all amendments thereto and all related trust documents (or, in the case of any of its Subsidiaries or to which Hanover or any of its Subsidiaries such Janus Plan that is a party and unwritten, descriptions thereof); (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries report (Form Series 5500), if any, required to be prepared or filed under ERISA or the Code and in connection with each material Janus Plan; (iii) the most recent determination letter received from actuarial reports (if applicable) for all Janus Plans; (iv) the IRS most recent summary plan description, if any, required under ERISA with respect to each such Janus Plan; (v) all material administrative service agreements and group insurance Contracts relating to each material Janus Plan; (vi) the most recent Internal Revenue Service (IRS) determination or opinion letter issued with respect to each Janus Plan intended to be qualified under Section 401(a) of the Code; and (vii) all filings within the past two years under the IRS’ Employee Plans Compliance Resolution System Program or any of its predecessors or the Department of Labor Delinquent Filer Program.
(iii) None of Janus, its subsidiaries, or any of their respective ERISA Affiliates has any material liability with respect to any plan subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA.
(iv) Each Janus Plan intended to qualify under Section 401 401(a) of the Code is qualified and has received a determination letter from the three most recent years (A) IRS upon which it may rely regarding its qualified status under the Form 5500s and attached SchedulesCode and, (B) audited financial statements and (C) actuarial valuation reportsto the knowledge of Janus, nothing has occurred, whether by action or by failure to act, that could cause the loss of such qualification or the imposition of any penalty or Tax liability.
(bv) No Action has been, since January 1, 2015, threatened, asserted, instituted or, to the knowledge of Janus, is anticipated against any of the Janus Plans (other than routine claims for benefits and appeals of such claims), any trustee or fiduciaries thereof, or any of the assets of any trust of any of the Janus Plans or against Janus or any of its subsidiaries in respect of the Janus Plans.
(vi) Except as would not, individually or in the aggregate, reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Janus, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in fullsince January 1, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover2015, each Hanover Benefit Janus Plan complies in form and has been maintained and operated and administered in all material respects in accordance with its terms and applicable lawApplicable Laws, including, but not limited towithout limitation, ERISA, the Code ERISA and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverCode.
(evii) Each Hanover Benefit Plan intended to be No non-exempt “qualifiedprohibited transaction,” within the meaning of Section 401(a) 4975 of the Code and Section 406 of ERISA, has received a determination letter from occurred or is reasonably expected to occur with respect to the IRS stating that they Janus Plans.
(viii) No Janus Plan provides post-retirement health and the trusts maintained thereunder are exempt from taxation welfare benefits to any current or former employee of Janus or its subsidiaries, except as required under Section 401(a) 4980B of the Code, respectivelyPart 6 of Title I of ERISA or any other Applicable Laws.
(ix) There are no loans by Janus or any of its subsidiaries to any of their respective employees, and each trust maintained officers, directors or other service providers outstanding in violation of Section 402 of the Xxxxxxxx-Xxxxx Act.
(x) The consummation of the Merger alone, or in combination with any other event, will not (a) trigger or give rise to any liability under any Hanover Benefit Janus Plan intended (including any liability for special, lump sum, or accelerated funding, payments or contributions) or accelerate the time of payment or vesting or increase the amount of compensation or benefits due to satisfy the requirements any employee director or other individual service provider of Section 501(c)(9Janus or its subsidiaries (whether current, former or retired) of the Code has satisfied such requirements andor their beneficiaries, in any such case, no event has occurred (b) trigger (or condition is known to exist that would could reasonably be expected to adversely affect such tax-qualified status trigger) the commencement of any investigation by any competent Governmental Entity with authority in the relevant jurisdiction in relation to any Janus Plan or (c) trigger the winding up or termination of any Janus Plan. No amount that could be received (whether in cash or property or the vesting of property), as a result of the consummation of the Merger, by any employee, director or other individual service provider of Janus or its subsidiaries under any Janus Plan or otherwise would not be deductible by reason of Section 280G of the Code or would be subject to an excise tax under Section 4999 of the Code. Neither Janus nor any of its subsidiaries has any indemnity obligation on or after the Effective Time for any such Hanover Benefit Plan Taxes imposed under Section 4999 or any such trust409A of the Code.
(fxi) No Hanover Benefit With respect to each Janus Plan that is maintained mandated by a government other than the United States or subject to the Applicable Laws of a jurisdiction outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation fair market value of the transactions contemplated by this Agreement assets of each such Janus Plan that is funded, or the liability of each insurer for any such Janus Plan that is funded through insurance or the book reserve established for any such Janus Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such Janus Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Janus Plan, and no Transaction shall not result by itself cause such assets or insurance obligations to be less than such benefit obligations. Since January 1, 2015, each such Janus Plan has been maintained and operated in all material respects in accordance with the passage of time in the payment or acceleration of any amountapplicable plan document and all Applicable Laws and other requirements, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement and if intended to any benefit or payment by any employeequalify for special Tax treatment, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoversatisfies all requirements for such treatment.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Janus Henderson Group PLC), Agreement and Plan of Merger (Janus Capital Group Inc)
Benefit Plans. (a) Section 5.13(a) of As used in this Agreement, the Hanover Disclosure Letter lists term “Benefit Plan” means each material “employee benefit plan” plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), and all each other material employee benefitbenefit or compensation plan, bonusprogram, incentiveagreement or arrangement, deferred compensationthat is maintained, stock option administered or contributed to by the Parent or a Seller or the Southern Entities (or to which a Seller or any of the Southern Entities is obligated to contribute) for the benefit of any current or former Southern Business Employee, other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral than (i) sponsoredany plan, maintained program, agreement or contributed to or required to be contributed to arrangement mandated by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party applicable Laws and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit multiemployer plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA (a “Multiemployer Plan”). Section 2.02(q) of the Disclosure Schedule separately lists each Benefit Plan and each other employee benefit plan for which a Seller or Seller’s Subsidiary could reasonably be expected to incur any liability, including any liability under Title IV of ERISA. The Parent has furnished or made available to the Purchaser a complete and accurate copy of the plan document and summary plan description of each Benefit Plan. In addition, with respect to any Benefit Plan that is sponsored solely by a Seller or a Seller’s Subsidiary or the Southern Entities (a “Company Plan”), the Parent has furnished or made available to the Purchaser the most recent annual report, financial statement and actuarial valuation, if any, with respect to such Company Plan, and each summary of material modifications, the most recently filed Form 5500 and the most recent determination letter from the Internal Revenue Service (“IRS”). No Seller or Subsidiary of a Seller or any of the Southern Entities has any express or implied commitment whether legally enforceable or not to (x) create or incur liability with respect to any other employee benefit plan, program or arrangement, (y) enter into any contract or agreement to provide compensation or benefits to any individual except in the ordinary course or (z) modify, change or terminate any Company Plan other than as required by ERISA or the Internal Revenue Code of 1986, as amended (the “Code”). Except as specified in Section 2.02(q) of the Disclosure Schedule or as would not reasonably be expected to be material:
(i) neither the Parent nor any member of the Parent’s “controlled group,” within the meaning of Sections 414(b) and (c) of the Code, has incurred any direct or indirect liability under ERISA or the Code in connection with the termination of, withdrawal from or failure to fund any Benefit Plan or Multiemployer Plan that could result in liability to a Seller or a Seller’s Subsidiary or the Southern Entities, and no event has occurred that could reasonably be expected to give rise to such liability;
(ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered the Company Plans provides for the payment of a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISAbenefit, the liability for which would reasonably be expected to result in increase of a material liability to Hanover.benefit amount, the payment of a contingent benefit or the acceleration of the payment or vesting of a benefit by reason of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement;
(diii) Except as would notthere are no pending, individually threatened or in to the aggregateknowledge of the Parent, reasonably be expected anticipated claims relating to result in a material liability to Hanoverany Company Plan, other than routine claims for benefits;
(iv) each Hanover Benefit Plan of the Company Plans has been operated and administered maintained in all material respects in accordance with its terms and with the requirements of applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any Law;
(v) none of the Hanover Benefit Company Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in is a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.Multiemployer Plan;
(evi) Each Hanover Benefit each Company Plan which is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a favorable determination letter from the IRS that it is so qualified, and each trust established in connection with any Company Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code has received a determination letter from the IRS stating that they it is so exempt, and to the trusts maintained thereunder are exempt from taxation under Section 401(a) knowledge of the CodeParent, respectively, and no fact or event has occurred since the date of such determination letter from the IRS to adversely affect the qualified status of any such Plan or the exempt status of any such trust;
(vii) each trust maintained under any Hanover Benefit Plan or contributed to by a Seller or a Seller’s Subsidiary which is intended to satisfy the requirements of be qualified as a voluntary employees’ beneficiary association and exempt from federal income taxation under Section 501(c)(9) of the Code has satisfied such requirements andreceived a favorable determination letter from the IRS that it is so qualified and so exempt, in any such caseand to the knowledge of the Parent, no fact or event has occurred or condition is known to exist that would reasonably be expected since the date of such determination by the IRS to adversely affect such tax-qualified status or exempt status;
(viii) all contributions, premiums or payments required to be made with respect to any Company Plan have been made on or before their due dates, and all unpaid liabilities of a Seller or a Seller’s Subsidiary with respect to a Company Plan that are not yet due have been properly accrued in accordance with GAAP; all such contributions have been fully deducted for income tax purposes and no such deduction has been challenged or disallowed by the IRS; and to the knowledge of the Parent no fact or event exists which could give rise to any such Hanover Benefit Plan challenge or disallowance;
(ix) the Sellers and the Southern Entities are in compliance with the requirements of WARN and have no outstanding liabilities that are payable pursuant to WARN or any such trust.similar state law;
(fx) No Hanover Benefit Plan there is maintained outside the jurisdiction no current or projected liability in respect of post-employment or post-retirement health or medical or life insurance benefits for current or former Southern Business Employees, except as required to avoid excise tax under Section 4980B of the United StatesCode, that could become a liability of the Purchaser or of any of its affiliates;
(xi) no Transferred Employee (as defined in Section 4.13(a)(ii)) will become entitled to any bonus, retirement, severance, job security or similar benefit, or covers the enhancement of any employee residing or working outside the United States.
(g) Except such benefit, as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation a result of the transactions contemplated by this Agreement shall not result by itself hereby; and
(xii) there is no contract, plan or with the passage of time in the payment arrangement (written or acceleration of otherwise) covering any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldSouthern Business Employee that, individually or in collectively, could give rise to the aggregate, reasonably payment by Purchaser or any of its affiliates of any amount that would not be expected deductible pursuant to result in a material liability to Hanoverthe terms of Sections 280G or 162(m) of the Code.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (J C Penney Co Inc)
Benefit Plans. (a) Section 5.13(a4.13(a) of the Hanover Company Disclosure Letter lists Schedule sets forth a true and complete list of each material “employee benefit plan” Company Benefit Plan as of the date of this Agreement. With respect to each material Company Benefit Plan, the Company has made available to Purchaser a current, complete and accurate copy (as defined in Section 3(3or to the extent no copy exists, an accurate summary) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredeach such Company Benefit Plan, maintained or contributed to or required to be contributed to by Hanover or including any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and material amendments thereto, (ii) in which any individual who is currently trust, insurance, annuity or has been an officerother funding instrument related thereto, director (iii) any summary plan description and other written communications (or employee a description of Hanover (any oral communications) by the Company or a “Hanover Employee”) is Subsidiary thereof to Company Employees concerning the extent of the benefits provided under a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Company Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, iv) for the most recent annual year and to the extent applicable, (A) audited financial statements, (B) actuarial or other valuation reports prepared with respect thereto (where such statements or summaries reports are required to be prepared under applicable Law or filed under ERISA or the Code otherwise reasonably available), (C) Form 5500 and the most recent determination letter received attached schedules, and (D) nondiscrimination testing results, and (v) any non-routine material correspondence from the IRS any Governmental Entity with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsany Company Benefit Plan.
(b) Except as set forth on Section 4.13(b) of the Company Disclosure Schedule:
(i) except as would not, individually or in the aggregate, not reasonably be expected to result in a material liability to Hanoverthe Company or its Subsidiaries, individually or in the aggregate, the Company has never been the sponsor of, been obligated to make contributions under nor has any actual or contingent liabilities or obligations under (A) a “multiemployer plan” (as defined in Title I or Title IV of ERISA), (iB) neither Hanover nor any of its ERISA Affiliates has incurred any liability under a plan subject to Title IV or of ERISA, (C) a multiple employer plan as described in Section 302 of ERISA or under Section 412 413 of the Code that has not been satisfied or (D) a multiple employer welfare arrangement as described in full, and Section 3(40) of ERISA;
(ii) no condition exists that except as would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would not reasonably be expected to result in a material liability to Hanover.
(d) Except as would notthe Company or its Subsidiaries, individually or in the aggregate, each Company Benefit Plan that is intended to be tax-qualified under Section 401(a) of the Code (A) has received a favorable determination or opinion letter as to its qualification, (B) has been established under a standardized master and prototype or volume submitter plan for which a current favorable Internal Revenue Service advisory letter or opinion letter has been obtained by the plan sponsor and is valid as to the adopting employer or (C) has time remaining under applicable Laws to apply for a determination or opinion letter or to make any amendments necessary to obtain a favorable determination or opinion letter, and no such determination letter or opinion letter has been revoked nor has revocation been threatened, nor has any amendment or, to the Knowledge of the Company, other action or omission occurred with respect to any such plan since the date of its most recent determination letter or opinion letter which would adversely affect its qualification;
(iii) except as would not reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with the Company or its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldSubsidiaries, individually or in the aggregate, reasonably be expected to result each Company Benefit Plan has been operated in a Material Adverse Effect on Hanover compliance in all respects with its respective terms and all applicable Laws, all premiums, contributions, or any other payments required under the terms of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which each Company Benefit Plan or applicable Laws have been furnished timely made, and all reports, returns and similar documents required to Xxxxxx and Spinco be filed on behalf of each Company Benefit Plan with any Governmental Entity or will be promptly furnished to Xxxxxx and Spinco when made) with respect distributed to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor plan participant have been duly and timely filed or the PBGC that would, individually or in the aggregate, distributed;
(iv) except as would not reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred Company or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldits Subsidiaries, individually or in the aggregate, no Action is pending or, to the Knowledge of the Company, threatened with respect to any Company Benefit Plan (other than claims for benefits in the ordinary course) and to the Knowledge of the Company, no fact or event exists that could reasonably be expected to give rise to any such Action;
(v) except as would not reasonably be expected to result in a material liability to Hanoverthe Company or its Subsidiaries, individually or in the aggregate, neither the Company nor any of its Subsidiaries are obligated under any employee welfare benefit plan as described in Section 3(1) of ERISA to provide medical or death benefits with respect to any employee or former employee of the Company, its Subsidiaries or their predecessors after termination of employment, except as required under Section 4980B of the Code or Part 6 of Title I of ERISA or other applicable Law;
(vi) neither the execution and delivery of this Agreement nor the consummation of the Transactions, will (w) result in any material payment (including, without limitation, severance, unemployment compensation, golden parachute or otherwise) becoming due to any director, officer or any employee of the Company or any of its Subsidiaries from the Company or any of its Subsidiaries under any Company Benefit Plan or otherwise, (x) materially increase any benefits otherwise payable under any Company Benefit Plan, (y) result in any material acceleration of the timing of payment or vesting of any such benefits or (z) will be the direct or indirect cause of any amount paid or payable by the Company or any of its Subsidiaries being classified as an excess parachute payment under Section 280G of the Code.
Appears in 2 contracts
Samples: Transaction Agreement (Replay Acquisition LLC), Transaction Agreement (Replay Acquisition Corp.)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredWith respect to each material Rubicon Project Benefit Plan, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or Rubicon Project has been an officermade available, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or notupon request, to create any additional employee benefit plan or modify or change any existing Hanover Telaria complete and accurate copies of (A) such Rubicon Project Benefit Plan that would affect any Hanover Employee except in and, to the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicleextent applicable, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such summary plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedulesdescription thereof, (B) the most recent audited financial statements and actuarial or other valuation reports prepared with respect thereto, and (C) actuarial valuation reportsthe most recently received IRS determination letter or opinion letter, if applicable.
(bii) Except as would notas, individually or and in the aggregate, would not reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on Rubicon Project, (iA) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 each of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Rubicon Project Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan Plans has been operated and administered in all respects in accordance compliance with its terms and applicable lawin accordance with Applicable Laws, including, but not limited to, including ERISA, the Code and in each case the laws of any applicable foreign jurisdiction. Except as would regulations thereunder, (B) no Rubicon Project Benefit Plan provides welfare benefits, including death or medical benefits (whether or not result in a material liability to Hanoverinsured), all contributions required to be made with respect to any Hanover current or former employees or directors of Rubicon Project or its Subsidiaries beyond their retirement or other termination of service, other than coverage mandated by COBRA, or comparable U.S. state or foreign law, (C) all contributions or other amounts payable by Rubicon Project or its Subsidiaries as of the Effective Time pursuant to each Rubicon Project Benefit Plan in respect of current or prior plan years have been timely made. There paid or, to the extent not yet due, have been accrued in accordance with GAAP, (D) neither Rubicon Project nor any of its Subsidiaries has engaged in a transaction in connection with which Rubicon Project or its Subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code and (E) there are no pending or, to Hanover’s Knowledgethe Knowledge of Rubicon Project, threatened in writing or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Hanover Rubicon Project Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldtrusts related thereto.
(iii) Except as, individually or and in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect on Hanover or Rubicon Project, none of Rubicon Project, any of its Subsidiaries and no matter or any of their respective ERISA Affiliates maintains, contributes to, is pending (other than routine qualification determination filingsobligated to contribute to, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) has any liability with respect to, or within the six (6) years preceding the date of this Agreement has maintained, contributed to, or was obligated to contribute to, a Multiple Employer Plan, and none of Rubicon Project, any of its Subsidiaries or any of their respective ERISA Affiliates has, within the Hanover Benefit Plans before the IRSpreceding six (6) years, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result withdrawn in a material complete or partial withdrawal from any Multiemployer Plan or incurred any liability to Hanoverunder Section 4202 of ERISA.
(eiv) Each Hanover of the Rubicon Project Benefit Plan Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9(A) of the Code has satisfied such requirements is so qualified and, in to the Knowledge of Rubicon Project, there are no existing circumstances or any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-affect, in any material respect, the qualified status for of any such Hanover Benefit plan and (B) has received a favorable determination letter or opinion letter as to its qualification.
(v) None of Rubicon Project, any of its Subsidiaries or any of their respective ERISA Affiliates sponsors, maintains, contributes to, is obligated to contribute to, or has any liability with respect to, or within the six (6) years preceding the date of this Agreement has sponsored, maintained, contributed to, or was obligated to contribute to any Multiemployer Plan or any such trustRubicon Project Benefit Plan that is subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the Code (each, a “Rubicon Project Title IV Plan”).
(fvi) No Hanover Benefit Plan is maintained outside Neither the jurisdiction execution and delivery of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, nor the consummation of the transactions contemplated by this Agreement shall not hereby (either alone or in conjunction with any other event) will result by itself in (A) the acceleration of vesting, exercisability, funding or with the passage of time delivery of, or increase in the payment amount or acceleration value of, any payment, right or other benefit to any current or former employee or director of any amount, the accrual or acceleration of any benefit Rubicon Project or any increase of its Subsidiaries or (B) result in any vested interest limitation on the right of Rubicon Project or entitlement any of its Subsidiaries to amend, merge, terminate or receive a reversion of assets from any benefit Rubicon Project Benefit Plan or payment by any employeerelated trust on or after the Effective Time. Without limiting the generality of the foregoing, officer no amount paid or director under domestic or foreign law that wouldcould become payable (whether in cash, individually in property, or in the aggregate, form of benefits) by Rubicon Project or any of its Subsidiaries 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 or can reasonably be expected to result in an “excess parachute payment” within the meaning of Section 280G of the Code.
(vii) No Person is entitled to receive any additional payment (including any Tax gross-up or other payment) from Rubicon Project or any of its Subsidiaries in the event of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(viii) Except as, individually and in the aggregate, would not reasonably be expected to have a material liability Material Adverse Effect on Rubicon Project, all Rubicon Project Benefit Plans subject to Hanoverthe laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment and (C) that are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
Appears in 2 contracts
Samples: Merger Agreement (Rubicon Project, Inc.), Merger Agreement (Telaria, Inc.)
Benefit Plans. (a) Section 5.13(aSet forth on Schedule 4.19(a) is a true and complete list of the Hanover Disclosure Letter lists each material Foreign Plan of a Newegg Subsidiary (each, a “Newegg Benefit Plan”). No Newegg Subsidiary has ever maintained or contributed to (or had an obligation to contribute to) any “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would notWith respect to each Newegg Benefit Plan which covers any current or former officer, individually director, consultant or in the aggregateemployee (or beneficiary thereof) of a Newegg Subsidiary, reasonably be expected Newegg has provided to result in a material liability to HanoverLLIT accurate and complete copies, if applicable, of: (i) neither Hanover nor all Newegg Benefit Plans and related trust agreements or annuity Contracts (including any of its ERISA Affiliates has incurred any liability under Title IV amendments, modifications or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and supplements thereto); (ii) no condition exists the most recent annual and periodic accounting of plan assets; (iii) the most recent actuarial valuation; and (iv) all communications with any Governmental Authority concerning any matter that would reasonably be expected to result in Hanover incurring is still pending or for which a Newegg Subsidiary has any such liabilityoutstanding Liability or obligation.
(c) With respect to each Newegg Benefit Plan: (i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Newegg Benefit Plan has been operated administered and administered enforced in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws requirements of any and all applicable foreign jurisdiction. Except as would not result Laws, and has been maintained, where required, in a material liability good standing with applicable regulatory authorities and Governmental Authorities; (ii) no breach of fiduciary duty has occurred; (iii) no Action is pending, or to HanoverNewegg’s Knowledge, threatened (other than routine claims for benefits arising in the ordinary course of administration); and (iv) all contributions and premiums required to be made with respect to any Hanover a Newegg Benefit Plan have been timely made. There are no pending orNo Newegg Subsidiary has incurred any obligation in connection with the termination of, to Hanover’s Knowledgeor withdrawal from, threatened claims by, on behalf of or against any Newegg Benefit Plan.
(d) The present value of the Hanover accrued benefit liabilities (whether or not vested) under each Newegg Benefit Plans or any assets thereofPlan, other than routine claims for benefits under such plansdetermined as of the end of Newegg’s most recently ended fiscal year on the basis of actuarial assumptions, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies each of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any is reasonable, did not exceed the current value of the Hanover assets of such Newegg Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected Plan allocable to result in a material liability to Hanoversuch benefit liabilities.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the The consummation of the transactions contemplated by this Agreement shall not result by itself and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or with other benefits or compensation; or (ii) accelerate the passage time of time in the payment or acceleration vesting, or increase the amount of any amountcompensation due, or in respect of, any individual.
(f) Except to the accrual extent required by applicable Law, no Newegg Subsidiary provides health or acceleration welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(g) All Newegg Benefit Plans can be terminated at any benefit time as of or after the Closing Date without resulting in any liability to any Newegg Subsidiary, LLIT or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any increase in any vested interest other charges or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverliabilities.
Appears in 2 contracts
Samples: Merger Agreement (Lianluo Smart LTD), Merger Agreement (Lianluo Smart LTD)
Benefit Plans. (a) Section 5.13(aSchedule 3.14(a) sets forth a true and correct list of each material Employee Benefit Plan or arrangement that is maintained or contributed to by any of the Hanover Disclosure Letter lists Transferred Subsidiaries or in which any current or former employee of the Transferred Subsidiaries participates. Except as set forth on Schedule 3.14(a), none of the Employee Benefit Plans that any Transferred Subsidiary maintains or to which any Transferred Subsidiary makes contributions or in which any current or former employee of Transferred Subsidiaries participates is subject to ERISA or the Code. No Transferred Subsidiary nor any trade or business, whether or not incorporated, which together with any Transferred Subsidiary would be deemed a “single employer” within the meaning of Section 4001 of ERISA (each material Subsidiary and each such trade or business is referred to herein as an “employee benefit plan” ERISA Affiliate”), has maintained or made contributions to any Employee Benefit Plan subject to Section 412 of the Code or Title IV of ERISA for the six-year period prior to the date of this Agreement.
(as defined in b) No Transferred Subsidiary nor any ERISA Affiliate has been obligated to make contributions to any Employee Benefit Plan subject to ERISA that is a multiemployer plan (within the meaning of Section 3(33(37) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not no Transferred Subsidiary nor any ERISA Affiliate has made contributions to any Employee Benefit Plan subject to ERISA and, whether written that is a multiple employer plan as defined in Section 413 of the Code for the six-year period prior to the date of this Agreement. All contributions or oral (i) sponsored, other amounts payable by Seller or any of the Transferred Subsidiaries as of the Closing Date with respect to each Employee Benefit Plan or arrangement that is maintained or contributed to or required to be contributed to by Hanover or any of its the Transferred Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently current or has been an officer, director or former employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither HanoverTransferred Subsidiaries participates in respect of current or prior plan years have been either paid or accrued on the Unaudited Interim Balance Sheet, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment except to the extent the failure to make or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that accrue such payments would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in have a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liabilityMaterial Adverse Effect.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(dc) Except as would notset forth on Schedule 3.14(c), individually no employee of a Transferred Subsidiary is subject to Section 280G or in Section 409A of the aggregate, reasonably be expected to result in a Code. No material liability to Hanover, each Hanover Employee Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability or arrangement that is maintained or contributed to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against by any of the Hanover Benefit Plans Transferred Subsidiaries or in which any assets thereof, current or former employee of the Transferred Subsidiaries participates provides death or medical benefits (whether or not insured) beyond their retirement or other termination of service the cost of which is material to the Transferred Subsidiaries taken as a whole other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated coverage mandated by this Agreement or any Executed Transaction Agreement, the applicable Law. The consummation of the transactions contemplated by this Agreement shall will not result by itself (i) entitle any current or former employee or officer of a Transferred Subsidiary to severance pay, unemployment compensation or any other payment or (ii) accelerate the time of payment or vesting, or increase the amount of, any compensation due any such employee or officer.
(d) Each Employee Benefit Plan of a Transferred Subsidiary that is subject to the Laws of a non-U.S. jurisdiction is in substantial compliance with the passage applicable Laws of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverjurisdiction.
Appears in 2 contracts
Samples: Acquisition Agreement (Wireless Facilities Inc), Acquisition Agreement (LCC International Inc)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists Schedule 10.15 identifies each material “employee benefit plan” (as defined in Section 3(3) of ERISA)pension, and all other material employee benefitretirement, profit sharing, stock bonus, stock option, stock purchase, bonus, incentive, deferred compensation, stock option (or other equity-based)hospitalization, medical, dental, vision, vacation, insurance, sick pay, disability, severance, change in controlor other plan, welfare (including post-retirement medical and life insurance) and fringe benefit plansfund, programs and arrangementsprogram, whether policy, contract or not subject to ERISA and, whether written arrangement providing employee pensions or oral (i) sponsored, benefits maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) NCI in which any individual who is currently employees or former employees of NCI participates or under which any of them has been an officeraccrued and remains entitled to any benefits (all such plans, director or employee of Hanover (a “Hanover Employee”) is a participant (funds, programs, policies, contracts and arrangements being referred to as the “Hanover Benefit "Plans”"). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof NCI has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete Buyer copies of each Hanover Benefit Plan all written Plans, and any amendments thereto (or if the all summary plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each descriptions for such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsplans.
(b) Except NCI has not been involved in any transaction that is likely to cause NCI to be subject to liability with respect to a plan subject to Title IV of ERISA (a "Title IV Plan") to which NCI contributed or was obligated to contribute during the six year period ending on the Closing Date under Section 4062 or 4069 of ERISA. NCI has filed all required returns and reports with the Department of Labor and with the Internal Revenue Service, as would not, individually or in required by all laws and regulations applicable to the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates Plans. NCI has not incurred any material liability under Title IV or Section 302 of ERISA that is likely to become or under remain a liability of NCI or Buyer after the Closing Date.
(c) Except as set forth in Schedule 10.15, (A) all contributions and deposits of employee' elective deferrals to the Plans that may have been required to be made in accordance with ERISA or the Code have been timely made, (B) there has been no application for or waiver of the minimum funding standards imposed by Section 412 of the Code that has not been satisfied in full, with respect to any Plan and (iiC) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
Plan maintained by NCI has an "accumulated funding deficiency" within the meaning of Section 412 (i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37a) of ERISA and (ii) none the Code as of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanovermost recent plan year.
(d) Except as would notTo the best knowledge of Ezelius, individually each of NCI's retirement plans has been the subject of a determination letter from the Internal Revenue Service to the effect that such retirement plan is qualified and exempt from Federal income taxes under Sections 401 and 501, respectively, of the Code, and such determination letters have not been revoked nor, to the knowledge of Ezelius, has revocation been threatened.
(e) To the best knowledge of Ezelius, neither NCI, nor any of the Plans, any trust created thereunder or any trustee or administrator thereof, has knowingly engaged in the aggregate, reasonably a transaction in connection with which NCI is likely to be expected subject to result in either a material liability or a material civil penalty assessed pursuant to HanoverSections 409 or 502(i) or (1) of ERISA, each Hanover Benefit Plan or a material tax imposed pursuant to Section 4975 of the Code. Each of the Plans has been operated and administered in all material respects in accordance with its terms and applicable lawlaws, including, including but not limited to, ERISA, the Code to ERISA and the laws of any applicable foreign jurisdictionCode. Except as would not result in a material liability to Hanoverdisclosed on Schedule 10.15, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There there are no material pending or, to Hanover’s Knowledgethe knowledge of Ezelius, threatened claims by, on behalf of or against any of the Hanover Benefit Plans Plans, by any employee or beneficiary covered under any assets thereofsuch Plan, or otherwise involving any such Plan (other than routine claims for benefits under such plans, that, if adversely determined could, individually or benefits). NCI is in compliance with all reporting and disclosure obligations imposed by ERISA and the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) Code with respect to all of its Plans. Ezelius is not aware of any of the Hanover Benefit Plans before the IRS, the United States Department of Labor fact or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist circumstance that would reasonably be expected afford a basis for the Internal Revenue Service to adversely affect such tax-qualified status for disqualify any such Hanover Benefit Plan or any such trustwhich is a pension benefit plan, as defined in ERISA.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material All “employee benefit planplans” (as defined in Section within the meaning of section 3(3) of ERISA), ) and all other material employee stock purchase, stock option, severance, employment, change-in-control, fringe benefit, bonus, incentive, deferred compensation, stock option (or employee loan, and all other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe employee benefit plans, programs and agreements, programs, policies or other arrangements, and whether or not subject to ERISA andERISA, whether written under which any employee, former employee, director, officer, independent contractor or oral (i) sponsored, maintained consultant of East Alabama or contributed to or required to be contributed to by Hanover or any of its Subsidiaries has any present or future right to benefits or under which Hanover East Alabama or any of its Subsidiaries is a party and (ii) in which has any individual who is currently present or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (future liability are referred to herein as the “Hanover Benefit East Alabama Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit .” Each material East Alabama Plan that would affect any Hanover Employee except is identified in the ordinary course of business. Hanover East Alabama Disclosure Letter.
(b) With respect to each material East Alabama Plan, East Alabama has heretofore delivered furnished or made available to Xxxxxx and Spinco true SSB a current, accurate and complete copies of each Hanover Benefit Plan and any amendments thereto copy thereof and, to the extent applicable: (or if the plan is not a written plan, a description thereof), i) any related trust agreement or other funding vehicleinstrument, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and (ii) the most recent determination or opinion letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and IRS, if applicable, (iii) the three most recent years summary plan description, (iv) any other written communication (or a description of any oral communication) by East Alabama or its Subsidiaries to employees of East Alabama or its Subsidiaries, including concerning the extent of any post-retirement medical or life insurance benefits provided under an East Alabama Plan, and (v) for the most recent year (A) the Form 5500s 5500 and attached Schedulesschedules, (B) audited financial statements and (C) actuarial valuation reports.
(bc) Except as would notWith respect to each East Alabama Plan, except to the extent that the inaccuracy of any of the representations set forth in this Section, individually or in the aggregate, reasonably be expected to result in have not had a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.Material Adverse Effect:
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit East Alabama Plan has been operated established and administered in all respects in accordance with its terms and in compliance with the applicable law, including, but not limited to, ERISA, provisions of ERISA and the Code and the laws of any other applicable foreign jurisdiction. Except as would not result in a material liability to HanoverLaw, and all contributions required to be made with respect to under the terms of any Hanover Benefit East Alabama Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.;
(eii) Each Hanover Benefit each East Alabama Plan intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code has received a determination letter favorable determination, advisory and/or opinion letter, as applicable, from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements it is so qualified and, in any to the knowledge of East Alabama, nothing has occurred, whether by action or failure to act, since the date of such case, no event has occurred or condition is known to exist letter that would reasonably be expected to adversely affect cause the loss of such tax-qualified status of such East Alabama Plan;
(iii) there is no Litigation (including any investigation, audit or other administrative proceeding) by the United States Department of Labor, the PBGC, the IRS or any other Agency or by any plan participant or beneficiary pending or threatened relating to East Alabama Plans, any fiduciaries thereof with respect to their duties to East Alabama Plans or the assets of any of the trusts under any East Alabama Plans (other than routine claims for benefits) nor are there facts or circumstances that exist that could reasonably give rise to any such Hanover Benefit Litigation. No written or oral communication has been received from the PBGC in respect of any East Alabama Plan subject to Title IV of ERISA concerning the funded status of any such plan or any transfer of assets and liabilities from any such trustplan in connection with the transactions contemplated herein; and
(iv) no “reportable event” (as such term is defined in Section 4043 of ERISA) that could reasonably be expected to result in liability; no nonexempt “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code); and no “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code) or failure to timely satisfy any “minimum funding standard” (within the meaning of Section 302 of ERISA or Sections 412 or 430 of the Code), in each case whether or not waived, has occurred with respect to any East Alabama Plan.
(fd) No Hanover Benefit (i) Each East Alabama Plan is maintained outside the jurisdiction pursuant to which East Alabama or any of its Subsidiaries could incur any current or projected liability in respect of post-employment or post-retirement health, medical, or life insurance benefits for current, former, or retired employees of East Alabama or any of its Subsidiaries (except as required to avoid an excise Tax under Section 4980B of the United StatesCode or otherwise except as may be required by applicable Law) (“retiree medical benefits”), and (ii) the provisions of each East Alabama Plan which provide retiree medical benefits may be terminated at any time by East Alabama or covers any employee residing its Subsidiaries without liability to East Alabama or working outside the United Statesits Subsidiaries.
(ge) Except Neither East Alabama nor any of its Subsidiaries is a party to any Contract that will, directly or in combination with other events, result, separately or in the aggregate, in the payment, acceleration or enhancement of any benefit as otherwise provided in or a result of the transactions contemplated by this Agreement or any Executed Transaction Agreement, and neither the execution of this Agreement, East Alabama shareholder approval of this Agreement nor the consummation of the transactions contemplated by this Agreement shall not hereby will (A) result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit severance pay or any increase in severance pay upon any vested interest termination of employment after the date of this Agreement, (B) accelerate the time of payment or entitlement vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation to, any of the East Alabama Plans, (C) limit or restrict the right of East Alabama to merge, amend, or terminate any of the East Alabama Plans, (D) cause East Alabama to record additional compensation expense on its income statement with respect to any benefit outstanding stock option or payment by any employeeother equity-based award, officer or director under domestic or foreign law that would, individually or (E) result in the aggregate, reasonably payment of payments which would not be expected to result in a material liability to Hanoverdeductible under Section 280G of the Code.
Appears in 1 contract
Samples: Merger Agreement (Southern States Bancshares, Inc.)
Benefit Plans. (ai) Section 5.13(aThe Confidential Exceptions Schedule lists all (A) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA)pension, and all other material employee benefitretirement, bonus, incentiveprofit sharing, deferred compensation, stock option option, stock ownership, severance pay, vacation, bonus, and incentive plans or arrangements, (B) medical, vision, dental or other equity-basedhealth plans, policies or arrangements, (C) life, health or disability plans, policies or arrangements, (D) employment, retention or severance contracts or arrangements and (E) fringe benefits or perquisites, provided or which may be provided by it or First Community Bank, to any present or past employee, director or the spouse or beneficiaries thereof (collectively, the “Benefits”). True and complete copies of all Benefit documents and written agreements established or maintained and currently in force during the preceding five years, together with copies of any tax determination letters, trust agreements, summary plan descriptions, insurance contracts, investment management agreements established or maintained during the preceding five years and the three most recent annual reports on form series 5500 with respect to any plan or arrangement have been made available to First Guaranty.
(ii) Except for the plans identified as such on the Confidential Exceptions Schedule (the “Benefit Plans”), severance, change in control, welfare (including post-retirement medical each of it and life insurance) and fringe benefit plans, programs and arrangements, whether or First Community Bank has not subject to ERISA and, whether written or oral (i) at any time sponsored, maintained or contributed to or required any employee benefit plan that is subject to be contributed to by Hanover or any the Employee Retirement Income Security Act of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and 1974 (ii) “ERISA”), in which any individual who employee is currently or was a participant. All contributions required by it and First Community Bank have been made, all insurance premiums required have been paid and each Benefit Plan has been an officer, director maintained and administered in compliance with its terms and all applicable laws. No transaction has occurred that could result in the imposition of a tax or employee of Hanover (a “Hanover Employee”) is a participant penalty under the Internal Revenue Code (the “Hanover Code”) or ERISA; there is no matter relating to any such Benefit Plans”). Neither HanoverPlan pending or threatened, nor, to its and First Community Bank’s knowledge, are there any circumstances that could lead to (other than routine filings such as qualification determination filings) proceedings before, or administrative actions by, any governmental agency; there are no Actions pending or threatened (including, without limitation, breach of its Subsidiaries nor fiduciary duty actions, but excluding routine uncontested claims for benefits) against any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover such Benefit Plan that would affect any Hanover Employee except in or its assets. Each of it and First Community Bank has complied with the ordinary course reporting and disclosure requirements of businessERISA and the Code. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover No Benefit Plan and any amendments thereto (is a multi-employer plan within the meaning of ERISA. A favorable determination or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination opinion letter received from has been issued by the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of qualified under Code Section 401(a) of the Code has received a determination letter from ), the IRS stating that they has taken no action to revoke any such letter and nothing has occurred which would cause the trusts loss of such qualification. Each of it and First Community Bank has not sponsored, maintained thereunder or made contributions to any arrangement subject to ERISA Title IV or to Code Section 412 or providing for post-retirement medical benefits. Each deferred compensation plan complies with ERISA Section 409A.
(iii) All group health plans of it and First Community Bank to which Code Section 4980B(f) or ERISA Section 601 applies are exempt from taxation under in full compliance with the continuation coverage requirements of Code Section 401(a4980B(f) of the Code, respectivelyand ERISA Section 601, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements prior violations of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trustSections have been cured.
(fiv) No Hanover Benefit Plan is maintained outside The Mergers will not (A) result in the jurisdiction imposition of the United Statesany obligation or liability on Seller, First Community Bank or First Guaranty pursuant to ERISA Section 280(G), or covers any employee residing or working outside the United States.
(gB) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverprohibited transaction as such term is used in Code Section 4975 or ERISA Section 406.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, All bonus, incentive, deferred compensation, incentive compensation, share purchase, share option, stock option (appreciation, phantom stock, savings, profit sharing, severance or termination pay, health or other equitymedical, life, disability or other insurance (whether insured or self-basedinsured), severancesupplementary unemployment benefit, change in controlpension, welfare retirement, supplementary retirement and every other benefit plan, programme, agreement or arrangement including vacation, sick leave and leave of absence policies (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (iunwritten) sponsored, maintained or contributed to or required to be contributed to by Hanover or Sellers for the benefit of any of its Subsidiaries their employees or to which Hanover their dependants or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant beneficiaries (the “Hanover "Benefit Plans”") are listed in Schedule 4.24(a). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate Sellers have delivered to Buyer true, complete and up-to-date copies thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any all amendments thereto (together with, as applicable, all funding agreements, all summary descriptions of the Benefit Plans provided to past or if the plan is not a written plan, a description thereof), any related trust or other funding vehiclepresent participants therein, the most recent annual reports or summaries required to be prepared or filed under ERISA or actuarial report, the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements relating thereto, if any, and (C) actuarial valuation reports.evidence of any registration in respect thereof;
(b) Except as would not, individually or in the aggregate, reasonably be expected to result disclosed in a material liability letter dated August 1, 1996 from Xxxxxxx X. Xxxxxx Ltd., a copy of which has been provided to HanoverBuyer (the "Mercer Letter") and is annexed hereto as Schedule 4.24(b), (iSellers have no ------------- knowledge of any fact, condition or circumstance since the date of the documents provided in accordance with Section 4.24(a) neither Hanover nor above which would materially affect the information contained therein and, in particular, and without limiting the generality of the foregoing, no promises or commitments have been made by the Sellers to amend any Benefit Plan or to provide increased benefits thereunder to any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 Sellers' employees except as required by law;
(c) All of the Code that has not been satisfied in fullBenefit Plans are, and have been since their establishment, duly registered where required by legislation (iiincluding registration with the relevant tax authorities where such registration is required to qualify for tax exemption or other beneficial tax status) and are in good standing under, and in material compliance with, all applicable legislation and administrative guidelines issued by the regulatory authorities;
(d) Any Benefit Plan that is a pension plan registered under the Income Tax Act (Canada) which has been created as a result of the division of a predecessor pension plan or the merger of one or more pension plans, has received any approval which is required therefor from all appropriate regulatory authorities;
(e) No investment held in respect of a Benefit Plan is a prohibited investment under the terms of the Benefit Plan and all supporting documents, and each Benefit Plan has or had the power and authority to make each investment and is permitted under the terms of the Benefit Plan and all supporting documents to continue to hold such investments;
(f) Except as permitted by the Benefit Plans and applicable legislation, there has been no condition exists that would reasonably withdrawal of surplus assets or any other amounts from any of the Benefit Plans other than proper payments of benefits to eligible beneficiaries, and refunds of over-contributions to plan members and Sellers;
(g) To the best of Sellers' knowledge, the past employer contribution holidays have been permitted by the terms of the Benefit Plans and have been in accordance with applicable legislation.
(h) There are no material outstanding defaults or violations by Sellers of any obligation required to be expected performed by them in connection with any Benefit Plan and, to result the knowledge of Sellers, no order has been made or notice given pursuant to any applicable legislation requiring (or proposing to require) Sellers to take (or refrain from taking) any action in Hanover incurring respect of any such liability.Benefit Plan;
(i) No Hanover All employer and, if applicable, employee contributions under the Benefit Plans (including, without limitation, all current service costs and any special payments required to be made) have been remitted in a timely manner (other than current contributions not in arrears), and the Pension Plan for Salaried Employees of PNG Products Inc. Pac National Group (amended and restated as at January 1, 1992) has no past service funding liabilities and is fully funded on both an ongoing and a “multiemployer pension plan,” as defined solvency basis using the methods and assumptions set out in Section 3(37the most recent actuarial report, which report shall be listed in Schedule 4.24(i);
(j) All returns, filings, reports and disclosures relating to the Benefit Plans required pursuant to the terms of ERISA and (ii) none of Hanoverthe Benefit Plans, applicable legislation or any ERISA Affiliate thereof has made regulatory authority, have been filed or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects distributed in accordance with its terms all requirements, and all filing fees and levies imposed on the Benefit Plans by regulatory authorities or applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in legislation have been made on a material liability to Hanover, all contributions required to be made with timely basis;
(k) With respect to any Hanover the Benefit Plan have been timely made. There Plans, there are no actions, suits, claims, trials, demands, investigations, arbitrations or other proceedings pending against Sellers, or to the knowledge of Sellers, against the funding agent or the fund of such Benefit Plans, or, to Hanover’s Knowledgethe knowledge of Sellers, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereofthreatened, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected ordinary course or as disclosed in writing by Sellers to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.Buyer;
(el) Each Hanover Benefit Plan intended to be “qualified” within To the meaning knowledge of Section 401(a) of the Code Sellers, no step has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such casebeen taken, no event has occurred and no condition or condition is known to exist circumstance exists that would has resulted or could reasonably be expected to adversely affect such tax-qualified status for result in any such Hanover Benefit Plan being ordered or required to be terminated or wound-up in whole or in part or having its registration under any applicable legislation being refused or revoked or being placed under the administration of any trustee or receiver or any such trust.regulatory authority or being required to pay any material taxes or penalties under any applicable legislation;
(fm) No Hanover Benefit Plan is maintained outside the jurisdiction None of the United States, or covers any employee residing or working outside the United States.Assigned Plans is a multiemployer pension plan;
(gn) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the The consummation of the transactions transaction contemplated by this Agreement shall not constitute an event under any Benefit Plan that shall or may result by itself in any acceleration, vesting or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in benefits with respect any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually employee or in the aggregate, reasonably be expected to result in a material liability to Hanoverfunding requirements of any Benefit Plan.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(a) of the Hanover The Disclosure Letter lists contains a true and complete list of each material “pension, retirement, savings, profit sharing, deferred compensation, incentive compensation, bonus, stock option, severance or termination pay, medical, dental, life or other insurance, disability plan or other employee benefit plan or program, agreement or arrangement maintained, sponsored or contributed to by either Seller, whether covering employees of such Seller, former employees of such Seller, or directors or former directors of such Seller (including, but not limited to, any "employee benefit plan” (", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), all of the foregoing being herein called "Benefit Plans." With respect to the Benefit Plans, individually and in the aggregate, each Seller has made available to Purchaser a true and correct copy or description of: (a) the most recent annual report (Form 5500) filed with the IRS, if any, (b) such Benefit Plan, (c) any summary plan description relating to such Benefit Plan, (d) each trust agreement and group annuity contract, if any, relating to such Benefit Plan, and (e) the most recent actuarial report or valuation relating to each Benefit Plan subject to Title IV of ERISA (if any). With respect to the Benefit Plans, individually and in the aggregate, no event has occurred and, to the Knowledge of Endeavor or the Seller, there currently exists no condition or set of circumstances in connection with which either Seller could be subject to any liability under ERISA, the Code, or any other applicable statute, order or governmental rule or regulation.
(a) Except as noted in the Disclosure Letter, neither Seller sponsors or maintains any Benefit Plan or related trust that is intended to be qualified, respectively, under Section 401(a) and Section 501(a) of the Code.
(b) With respect to the Benefit Plans, individually and in the aggregate, all other material employee benefitrequired reports and descriptions have been appropriately filed and distributed.
(c) With respect to the Benefit Plans, bonusindividually and in the aggregate, incentivethere has been no prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code and there has been no action, deferred compensationsuit, stock option (grievance, arbitration or other equity-based), severance, change in control, welfare claim with respect to the administration or investment of assets of the Benefit Plans (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except other than routine claims for benefits made in the ordinary course of business. Hanover plan administration pending or, to the Knowledge of Endeavor and the Seller, threatened, and none of Endeavor or the Sellers has heretofore delivered any Knowledge of any facts which are reasonably likely to give rise to any such action, suit grievance, arbitration or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereofother claim), except in any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportscase for those which would not have a Material Adverse Effect.
(bd) Except as would not, individually Neither Seller has ever sponsored or in maintained any Benefit Plan subject to the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any provisions of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or been subject to any potential liability under Section 412 such Title as a result of the Code that has not been satisfied sponsorship of any such plan by an "affiliate" as defined in fullSection 407(d)(7) of ERISA, and (ii) no condition exists that would reasonably be expected neither Seller has ever been obligated to result in Hanover incurring make any such liability.
(i) No Hanover Benefit Plan is a “contributions to any "multiemployer pension plan,” " as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(aNeither the Company nor any member of a group of trades or businesses under common control ("ERISA Affiliate") of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3Sections 4001(a)(14) or 4001(b)(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) with the Company have at any time sponsored, contributed to, or been obligated under Title I or IV of ERISA to contribute to a "defined benefit plan" as defined in ERISA Section 3(35), or to any "multiemployer plan" as defined in ERISA Section 3(37).
(b) Schedule 5.23 lists every Employee Benefit Plan that affects or is ------------- available to employees or independent contractors performing duties to or for the Company or its Subsidiaries.
(c) The Company has made available to Merger Corp. and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral MAPICS (i) sponsoredcopies of each Employee Benefit Plan, maintained or contributed to or required to be contributed to by Hanover or including the Employee Benefit Plans of any Subsidiary, and any amendments, or, in the case of its Subsidiaries or to which Hanover or any of its Subsidiaries is unwritten Employee Benefit Plans, a party and written summaries thereof; (ii) all determination letters, rulings, opinion letters, information letters or advisory opinions issued by the IRS or, the Department of Labor in which connection with any individual who is currently such Employee Benefit Plan; (iii) annual reports or returns, audited or unaudited financial statements, actuarial valuations and reports, and summary annual reports prepared for any such Employee Benefit Plan with respect to the most recent three plan years; and (iv) the most recent summary plan description for any such Employee Benefit Plan and any material modifications thereto.
(d) Each Employee Benefit Plan has been an officermaintained in compliance with the applicable terms of ERISA, director the Code and any other applicable law. Each Employee Benefit Plan has been administered in accordance with its written terms except to the extent inconsistent with applicable law. No oral or employee written representation or communication with respect to any aspect of Hanover (a “Hanover Employee”) is a participant (any Employee Benefit Plan has been made to employees of the “Hanover Benefit Plans”). Neither Hanover, any of Company or its Subsidiaries nor any ERISA Affiliate thereof has any commitment prior to the Closing that is not in accordance with the written or formal planotherwise preexisting terms and provisions of such Employee Benefit Plan. There are no unresolved claims or disputes under the terms of, whether legally binding or notin connection with, to create any additional employee benefit plan Employee Benefit Plans of the Company or modify or change any existing Hanover Benefit Plan its Subsidiaries other than claims for benefits that would affect any Hanover Employee except are payable in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanoveraction, proceeding, prosecution, inquiry, hearing or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan investigation has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) commenced with respect to any of the Hanover Employee Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Plans. Each Hanover Employee Benefit Plan that is intended to be “qualified” within the meaning of qualified under Section 401(a) of the Internal Revenue Code has received a determination letter from the IRS stating to that they effect, and the trusts maintained thereunder are exempt from taxation under Section 401(aCompany does not Know of any circumstances that could result in revocation of any such favorable determination letter.
(e) of the Code, respectively, and each trust maintained No provision under any Hanover Employee Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist exists that would reasonably be expected to adversely affect such tax-qualified status for prevent the Company or its Subsidiaries from amending or terminating any such Hanover Employee Benefit Plan or without incurring any such trustliability thereunder.
(f) No Hanover All contributions and payments accrued under each Employee Benefit Plan is maintained outside Plan, determined in accordance with prior funding and accrual practices, as adjusted to include proportional accruals for the jurisdiction of period ending on the United StatesClosing Date, will be discharged and paid on or covers any employee residing or working outside prior to the United StatesClosing Date.
(g) Except as otherwise provided in set forth on Schedule 5.23, no Employee Benefit Plan ------------- provides life or contemplated health benefits beyond the termination of covered employment except to the extent required by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverCOBRA.
Appears in 1 contract
Samples: Merger Agreement (Mapics Inc)
Benefit Plans. (a) Section 5.13(a) Schedule 4.15 contains a complete and accurate list of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither HanoverTrue, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plancorrect, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if all the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS following documents with respect to each such plan intended Benefit Plan, to qualify under Section 401 of the Code extent applicable, have been delivered to Buyer: (i) all documents constituting the Benefit Plan, including but not limited to, trust agreements, insurance policies, service agreements, and formal and informal amendments thereto; (ii) all IRS determination letters for the three Benefit Plan; (iii) the most recent years summary plan description and any amendments or modifications thereof; (Aiv) all memoranda, minutes, resolutions and similar documents describing the Form 5500s and attached Schedules, (B) audited financial statements manner in which the Benefit Plan is or has been administered or describing corrections to the administration of a Benefit Plan; and (Cv) actuarial valuation reportsall employee manuals or handbooks containing personnel or employee relations policies.
(b) Except as would notset forth in Schedule 4.15, individually or Seller and the ERISA Affiliates have fulfilled their respective obligations under the minimum funding requirements of Section 302 of ERISA and Section 412 of the Code with respect to each Benefit Plan which is an "employee pension benefit plan" as defined in Section 3(2) of ERISA and to which Section 302 of ERISA applies, and each such plan is in compliance in all material respects with the aggregatepresently applicable provisions of ERISA and the Code. Except as set forth in Schedule 4.15, neither Seller nor any ERISA Affiliate has incurred any material liability under Title IV of ERISA to the PBGC (other than premiums not yet due) in connection with any Benefit Plan which is subject to Title IV of ERISA, and no condition exists that could reasonably be expected to result in a Seller or an ERISA Affiliate incurring such material liability nor is there or has there been any reportable event (as defined in Section 4043 of ERISA), which has not been waived by the PBGC with respect to Hanover, (i) neither Hanover nor any Benefit Plan. Each of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or the Benefit Plans that is intended to be qualified under Section 412 401(a) of the Code that has been determined by the IRS to be so qualified and exempt from tax under section 501(a) of the Code, and each such determination remains in effect and has not been satisfied in fullrevoked. Copies of the most recent IRS determination letters, and (ii) no condition exists if any, applicable to the Benefit Plans have been delivered to Buyer. To the Knowledge of Seller, nothing has occurred with respect to the design or operation of any Qualified Plan that would reasonably be expected to result in Hanover incurring could cause the loss of such qualification or exemption or the imposition of any such liability, lien, penalty, or tax under ERISA or the Code.
(ic) No Hanover Benefit Plan is Seller does not contribute to, and has never contributed to or had any other liability with respect to, a “multiemployer pension plan,” plan as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a Seller has no material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover benefit plan or arrangement other than the Benefit Plan have been timely madePlans.
(e) With respect to each Benefit Plan, there has occurred no non-exempt "prohibited transaction" (within the meaning of Section 4975 of the Code or Section 406 of ERISA) or breach of any fiduciary duty described in Section 404 of ERISA that could result in any material liability, direct or indirect, for Seller.
(f) Seller has not incurred any material liability for any excise, income or other taxes or penalties with respect to any Benefit Plan, and no event has occurred and no circumstance exists or has existed that could give rise to any such material liability. There are no pending or, or to Hanover’s Knowledge, the Knowledge of Seller threatened material claims by, by or on behalf of any Benefit Plans, or against by or on behalf of any participants or beneficiaries of the Hanover any Benefit Plans or any assets thereof, other persons (other than routine claims for benefits under such plansbenefits), that, if adversely determined could, individually or in alleging any breach of fiduciary duty on the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover part of Seller or any of its Subsidiaries and no matter is pending (officers, directors or employees under ERISA or any applicable law, or claiming benefit payments other than routine qualification determination filingsthose made in the ordinary operation of such plans, copies nor to the Knowledge of which have Seller is there any basis for any such claim. No Benefit Plan is presently under audit or examination (nor has notice been furnished to Xxxxxx and Spinco received of a potential audit or will be promptly furnished to Xxxxxx and Spinco when madeexamination) with respect to any of the Hanover Benefit Plans before by the IRS, the United States Department of Labor or the PBGC that wouldLabor, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United Statesother governmental entity.
(g) Except as otherwise provided in No Benefit Plan contains any provision or is subject to any law that would prohibit the transactions contemplated by this Agreement or that would give rise to any Executed Transaction Agreementvesting of benefits, the consummation severance, termination, or other payments or liabilities as a result of the transactions contemplated by this Agreement shall Agreement, and no payments or benefits under any Benefit Plan or other agreement of Seller will be considered "excess parachute payments" under Section 280G of the Code. Seller has not result declared or paid any bonus compensation in contemplation of the transactions contemplated by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverthis Agreement.
Appears in 1 contract
Benefit Plans.
(a) Section 5.13(a6.12(a) of the Hanover Company Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-basedbased compensation), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, and whether written or oral (i) oral, sponsored, maintained or contributed to or required to be contributed to by Hanover the Company or any of its Subsidiaries or the Company Subsidiaries, to which Hanover the Company or any of its the Company Subsidiaries is a party and (ii) or in which any individual Person who is currently or currently, has been or, prior to the Effective Time, is expected to become an officer, director or employee of Hanover the Company or any of the Company Subsidiaries (a “Hanover Company Employee”) is a participant (the “Hanover Company Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 which the Company or any of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCompany Subsidiaries has or could have any material liability.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a No material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV (including Sections 4069 and 4212(c) of ERISA) or Section 302 of ERISA or under Section 412 has been incurred by the Company, any of the Code that has not been satisfied in fullCompany Subsidiaries or any ERISA Affiliate of any of them, and (ii) no condition exists that would reasonably be expected to result in Hanover the Company, any of the Company Subsidiaries or any ERISA Affiliate of any of them incurring any such liability, other than liability for premiums due to the PBGC. The present value of accrued benefits under each Company Benefit Plan that is subject to Title IV of ERISA, determined based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such plan’s actuary with respect to such plan, did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(c) (i) No Hanover Company Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanoverthe Company, the Company Subsidiaries or any ERISA Affiliate thereof of any of them has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result has not been satisfied in a material liability to Hanoverfull.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Each Company Benefit Plan has been operated and administered in all material respects in accordance with its terms and applicable lawLaw, including, but not limited to, ERISA, the Code ERISA and the laws of any applicable foreign jurisdictionCode. Except as would not result in a material liability to Hanover, all All contributions required to be made with respect to any Hanover Company Benefit Plan have been timely made, except for outstanding contributions in the ordinary course. There Except as set forth in Section 6.12(d) of the Company Disclosure Letter, there are no pending or, to Hanoverthe Company’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Company Benefit Plans in effect as of the date hereof or any assets Assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldwould reasonably be expected to have, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries the Company and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx Verizon and Spinco or will be promptly furnished to Xxxxxx Verizon and Spinco when made) with respect to any of the Hanover Company Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.PBGC.
(e) Each Hanover Company Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they is so qualified and the trusts maintained thereunder are exempt from taxation under Section 401(a501(a) of the Code, respectively, and each trust maintained under any Hanover Company Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any either such case, no event has occurred or or condition is known to exist that would reasonably be expected to adversely affect have a material adverse effect on such tax-qualified status for any such Hanover Company Benefit Plan or any such trust.
(f) No Hanover Company Benefit Plan is maintained outside or employment arrangement, and no contractual arrangements between the jurisdiction Company and any third party, exists that could result in the payment to any current, former or future director, officer, stockholder or employee of the United StatesCompany or any of the Company Subsidiaries, or covers of any employee residing entity the assets or working outside capital stock of which have been acquired by the United States.
(g) Except Company or a Company Subsidiary, of any money or other property or rights or accelerate or provide any other rights or benefits to any such individual as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, a result of the consummation of the transactions contemplated by this Agreement shall the Transaction Agreements whether or not result by itself (a) such payment, acceleration or with provision would constitute a “parachute payment” (within the passage meaning of time in Section 280G of the payment Code) or (b) some other subsequent action or event would be required to cause such payment, acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement provision to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanovertriggered.
Appears in 1 contract
Samples: Merger Agreement
Benefit Plans. (a) Section 5.13(a) Since January 1, 2009, neither the Companies nor any Subsidiary has had any employees and the business and operations of the Hanover Company and the Subsidiaries have been conducted by employees of Seller or its Affiliates (other than the Companies or any of the Subsidiaries). Section 3.9 of the Disclosure Letter Schedule lists each material “employee benefit plan” (as defined in Section 3(3) all of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) the Employee Benefit Plans sponsored, maintained or maintained, contributed to to, or required to be contributed to by Hanover Seller or any trade or business (whether or not incorporated) that together with Seller is treated as a single employer under Section 414 of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party the Code (an “ERISA Affiliate”) and (ii) in which any individual who Employee is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant eligible to participate (the “Hanover Seller Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover Seller nor any of its ERISA Affiliates has incurred or expects to incur any liability (other than normal claims for benefits) under any provision of ERISA (including, without limitation, Title IV thereof) or Section 302 other Applicable Law relating to any Employee Benefit Plan that could become a liability of Buyer as a successor to the business of the Companies and/or the Subsidiaries or otherwise. Each Seller Benefit Plan has been established, maintained and administered in compliance in all material respects with its terms and complies in all material respects, both in form and operation, with the applicable provisions of ERISA or under Section 412 of (including without limitation the Code that has not been satisfied in fullfunding and prohibited transactions provisions thereof), the Code, and (iiall other Applicable Laws. Each Seller Benefit Plan which is intended to be qualified within the meaning of Code Section 401(a) no condition exists is so qualified and nothing has occurred that would could reasonably be expected to result cause the loss of such qualification. Seller has made available to Buyer true and complete copies of the most recent summary plan descriptions and annual enrollment guides with respect to Seller Benefit Plans. Except as described in Hanover incurring any such liability.
Section 3.9 of the Disclosure Schedule, (i) No Hanover no Seller Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37provides welfare benefits, including, without limitation, death or medical benefits (through insurance or otherwise) with respect to Employees or former Employees beyond their retirement or other termination of ERISA and service other than coverage mandated by Applicable Law, (ii) none of Hanoverthe Companies or Subsidiaries is a party to any plan, agreement or any ERISA Affiliate thereof has made other arrangement that will or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to could result in a material liability to Hanover.
(d) Except as would not, individually or in any compensation amount the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies deductibility of which have been furnished to Xxxxxx and Spinco is disallowed under Section 280G or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a162(m) of the Code has received a determination letter from or any amount that is subject to the IRS stating that they and the trusts maintained thereunder are exempt from taxation under gross income inclusion requirements of Section 401(a409A(a)(1) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy (iii) neither the requirements execution of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or nor any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, could reasonably be expected to (either alone or upon the occurrence of any additional or subsequent events) result in “excess parachute payments” (within the meaning of Section 280G(b) of the Code) to any Employee. Buyer, the Companies and the Subsidiaries will not have any obligation to contribute to a material liability multiemployer plan as described in Section 3(37) of ERISA or pension plan subject to HanoverTitle IV of ERISA in which Seller or any of its ERISA Affiliates participate or to which Seller or any of its ERISA Affiliates contribute.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredWith respect to each material MWV Benefit Plan, maintained MWV has made available to RockTenn complete and accurate copies of (A) such MWV Benefit Plan (or, with respect to any such arrangement that is not in writing, a written description of the material terms thereof), including any amendment thereto, and to the extent applicable, summary plan description thereof, (B) each trust, insurance, annuity or contributed to other funding contract related thereto, (C) the two most recent audited financial statements and actuarial or other valuation reports prepared with respect thereto, (D) the two most recent annual reports on Form 5500 required to be contributed filed with the Internal Revenue Service (the “IRS”) with respect thereto and the two most recent annual information returns required to by Hanover be filed with any Governmental Entity, (E) the most recently received IRS determination letter or opinion and (F) all material correspondence with a Governmental Entity. Except as specifically provided in the foregoing documents made available to RockTenn, there are no amendments to any material MWV Benefit Plans that have been adopted or approved nor has MWV or any of its Subsidiaries subsidiaries undertaken to make any such amendments or to which Hanover adopt or approve any of its Subsidiaries is a party and new material MWV Benefit Plans.
(ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would notas, individually or in the aggregate, would not reasonably be expected to result in have a material liability to HanoverMaterial Adverse Effect on MWV, (iA) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 each of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover MWV Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan Plans has been operated and administered in all respects in accordance compliance with its terms and applicable lawin accordance with Applicable Laws, including, but not limited to, including ERISA, the Code and in each case the laws of any applicable foreign jurisdiction. Except as would regulations thereunder; (B) no MWV Benefit Plan provides welfare benefits, including death or medical benefits (whether or not result in a material liability to Hanoverinsured), all contributions required to be made with respect to any Hanover current or former employees or directors of MWV or its subsidiaries beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), or comparable U.S. state or foreign law; (C) all contributions or other amounts payable by MWV or its subsidiaries as of the Effective Time pursuant to each MWV Benefit Plan in respect of current or prior plan years have been timely made. There are no pending paid or, to Hanover’s Knowledgethe extent not yet due, have been accrued in accordance with GAAP; (D) neither MWV nor any of its subsidiaries has engaged in a transaction in connection with which MWV or its subsidiaries could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code; and (E) there are no pending, or to the knowledge of MWV, threatened or anticipated claims, actions, investigations or audits (other than routine claims for benefits) by, on behalf of or against any of the Hanover MWV Benefit Plans or any assets thereoftrusts related thereto.
(iii) Section 4.1(j)(iii) of the MWV Disclosure Letter sets forth each Multiemployer Plan or Multiple Employer Plan to which MWV, other than routine claims for benefits under such plansany of its subsidiaries or any of their respective ERISA Affiliates contributes or is obligated to contribute, thator within the six years preceding the Original Signing Date, if adversely determined couldcontributed, or was obligated to contribute. Except as set forth on Section 4.1(j)(iii) of the MWV Disclosure Letter and as, individually or in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect on Hanover MWV, none of MWV, any of its subsidiaries or any of its Subsidiaries their respective ERISA Affiliates contributes to or is obligated to contribute to, or within the six years preceding the Original Signing Date contributed to, or was obligated to contribute to, a Multiemployer Plan or Multiple Employer Plan, and no matter is pending (other than routine qualification determination filingsnone of MWV, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of its subsidiaries or any of their respective ERISA Affiliates has, within the Hanover Benefit Plans before the IRSpreceding six years, the United States Department withdrawn in a complete or partial withdrawal from any Multiemployer Plan or incurred any liability under Section 4202 of Labor or the PBGC that wouldERISA.
(iv) Except as, individually or in the aggregate, would not reasonably be expected to result in have a material liability to Hanover.
(e) Each Hanover Material Adverse Effect on MWV, each of the MWV Benefit Plan Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, (A) is so qualified and each trust maintained under there are no existing circumstances or any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has events that have occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-the qualified status for of any such Hanover Benefit Plan plan and (B) has received a favorable determination letter or any such trustopinion letter as to its qualification.
(fv) No Hanover Section 4.1(j)(v) of the MWV Disclosure Letter sets forth each MWV Benefit Plan that is maintained outside the jurisdiction subject to Section 302 or Title IV or Section 412, 430 or 4971 of the United StatesCode (each, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreementa “MWV Title IV Plan”). With respect to each MWV Title IV Plan, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldexcept for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on MWV, (A) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (B) no such MWV Title IV Plan is currently in “at risk” status within the meaning of Section 430 of the Code or Section 303(i) of ERISA, (C) the present value of accrued benefits under such MWV Title IV Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such MWV Title IV Plan’s actuary with respect to such MWV Title IV Plan, did not, as of its latest valuation date, exceed the then current fair market value of the assets of such MWV Title IV Plan allocable to such accrued benefits, (D) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, (E) none of MWV, any of its subsidiaries or any of their respective ERISA Affiliates has engaged in any transaction described in Section 4069, 4204(a) or 4212(c) of ERISA, (F) all premiums to the Pension Benefit Guaranty Corporation (the “PBGC”) have been timely paid in full, (G) no liability (other than for premiums to the PBGC) has been or, to the knowledge of MWV, is expected to be incurred by MWV or any of its subsidiaries and (H) the PBGC has not instituted proceedings to terminate any such MWV Title IV Plan. Except for matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on MWV, there does not now exist, nor do any circumstances exist that could result in, any Controlled Group Liability that would be a liability following the Closing of MWV, any of its subsidiaries or any of their respective ERISA Affiliates. Since July 1, 2014, there has not been any material change in any actuarial or other assumption used to calculate funding obligations with respect to any MWV Title IV Plan, or any material change in the manner in which contributions to any MWV Title IV Plan are made or the basis on which such contributions are determined.
(vi) Except as provided by this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (A) result in any payment (including severance, unemployment compensation, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of indebtedness or otherwise) becoming due to any current or former director or any employee of MWV or its subsidiaries under any MWV Benefit Plan or otherwise, (B) increase any benefits otherwise payable under any MWV Benefit Plan or (C) result in any acceleration of the time of payment, funding or vesting of any such benefits.
(vii) No person is entitled to receive any additional payment (including any Tax gross-up or other payment) from MWV or any of its subsidiaries as a material liability result of the imposition of the excise Taxes required by Section 4999 of the Code or any Taxes required by Section 409A of the Code.
(viii) Except as, individually or in the aggregate, would not reasonably be expected to Hanoverhave a Material Adverse Effect on MWV, all MWV Benefit Plans subject to the laws of any jurisdiction outside of the United States (A) have been maintained in accordance with all applicable requirements, (B) that are intended to qualify for special tax treatment meet all requirements for such treatment, and (C) that are intended to be funded and/or book-reserved are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.
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Benefit Plans. (ai) Section 5.13(a3.2(i)(i)(A) of the Hanover Xxxxxx Disclosure Letter lists Schedule sets forth a true and complete list of each material “employee Benefit Plan with or for the benefit plan” (as defined in Section 3(3) of ERISA)any current or former employee, and all other material employee benefit, bonus, incentive, deferred compensation, stock option (officer or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover director of Xxxxxx or any of its Subsidiaries or ERISA Affiliates or with respect to which Hanover Xxxxxx or any of its Subsidiaries is a party and (ii) in which or ERISA Affiliates have any individual who is currently obligations or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant liabilities (the “Hanover "Xxxxxx Benefit Plans”"). With respect to the Xxxxxx Benefit Plans, no event has occurred, and there exists no condition or set of circumstances, which would reasonably be expected to have a Material Adverse Effect on Xxxxxx and its Subsidiaries, taken as a whole, under ERISA, the Code or any other Applicable Laws. Neither HanoverXxxxxx, nor any of its Subsidiaries nor Subsidiaries, nor, to the Knowledge of Xxxxxx, any ERISA Affiliate thereof other Person, has any commitment express or formal planimplied commitment, whether legally binding enforceable or not, to create modify, change or terminate any additional employee benefit plan Xxxxxx Benefit Plan, other than with respect to a modification, change or modify termination required by ERISA or change the Code or any existing Hanover Benefit Plan that would affect any Hanover Employee except other Applicable Laws. Except as set forth in Section 3.2(i)(i)(B) of the ordinary course of business. Hanover Xxxxxx Disclosure Schedule, Xxxxxx has heretofore delivered or made available to Xxxxxx and Spinco true Apogent true, correct and complete copies of each Hanover all Xxxxxx Benefit Plan and any amendments thereto Plans (or, if not so delivered, has delivered or if the plan is not made available to Apogent a written plansummary of their material terms) and, a description thereof)with respect thereto, any related all amendments, trust or agreements, insurance Contracts, other funding vehiclevehicles, determination letters issued by the Internal Revenue Service, the most recent annual reports or summaries required to be prepared or (Form 5500 series) filed under ERISA or with the Code Internal Revenue Service and the most recent determination letter received from actuarial report or other financial statement relating to such Xxxxxx Benefit Plan.
(ii) Each Xxxxxx Benefit Plan has been, in all material respects, administered and operated in accordance with its terms, with the IRS with respect to each such plan intended to qualify under Section 401 applicable provisions of ERISA, the Code and other Applicable Laws and with the three most recent years terms of all applicable collective bargaining agreements. Each Xxxxxx Benefit Plan, including any material amendments thereto, that is capable of Approval has received such Approval (A) or there remains a period of time in which to obtain such Approval retroactive to the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a date of any material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code amendment that has not been satisfied in fullpreviously received such Approval), and (ii) no condition exists that event has occurred which would reasonably be expected to result in Hanover incurring any the revocation of such liabilityApproval or the imposition of material sanctions by such authorities. Without limiting the generality of the foregoing, each Xxxxxx Benefit Plan that is intended to be qualified under Section 401(a) of the Code has obtained a favorable determination letter from the Internal Revenue Service that the Xxxxxx Benefit Plan is so qualified and all related trusts are exempt from U.S. federal income taxation under Section 501(a) of the Code, and, to the Knowledge of Xxxxxx, nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification or exemption.
(iiii) No Hanover Except as set forth in Section 3.2(i)(iii) of the Xxxxxx Disclosure Schedule, to the Knowledge of Xxxxxx, no oral or written representation or commitment with respect to any material aspect of any Xxxxxx Benefit Plan has been made to an employee or former employee of Xxxxxx or any of its Subsidiaries by an authorized Xxxxxx employee that is not materially in accordance with the written or otherwise pre-existing terms and provisions of such Xxxxxx Benefit Plans. To the Knowledge of Xxxxxx, neither Xxxxxx nor any of its Subsidiaries has entered into any agreement, arrangement or understanding, whether written or oral, with any trade union, works council or other employee representative body or any material number or category of its employees which would prevent, restrict or materially impede the implementation of any layoff, redundancy, severance or similar program within its or their respective workforces (or any part of them).
(iv) There are no material unresolved claims or disputes under the terms of, or in connection with, any Xxxxxx Benefit Plan (other than routine undisputed claims for benefits), and no action, legal or otherwise, has been commenced or threatened with respect to any material claim or otherwise in connection with a “multiemployer pension plan,” Xxxxxx Benefit Plan.
(v) Except as defined set forth in Section 3(373.2(i)(v) of ERISA the Xxxxxx Disclosure Schedule, with respect to each Funded Retirement Plan of Xxxxxx or any of its Subsidiaries, the aggregate value of the assets of such Funded Retirement Plan is equal to or greater than the aggregate value of its liabilities assessed on an ongoing and (ii) none terminated basis and calculated in accordance with the actuarial methods and assumptions used in such valuation pursuant to such Funded Retirement Plan and Applicable Laws and GAAP. None of Hanover, Xxxxxx or any ERISA Affiliate thereof of Xxxxxx has made incurred, or suffered is reasonably expected to incur, any liability to a “complete withdrawal” Funded Retirement Plan under Title IV of ERISA (other than for contributions not yet due) or a “partial withdrawal,” as to the Pension Benefit Guaranty Corporation (other than for payment of premiums not yet due) that, when aggregated with other such terms are respectively defined in Sections 4203 and 4205 of ERISAliabilities, the liability for which would reasonably be expected to result in a material liability to Hanoverof Xxxxxx and its Subsidiaries, taken as a whole, which liability has not been fully paid.
(dvi) Section 3.2(i)(vi) of the Xxxxxx Disclosure Schedule sets forth a true and complete list of each Multiemployer Plan to which Xxxxxx or any ERISA Affiliate of Xxxxxx contributes or is required to contribute, or to which, or with respect to which, Xxxxxx or any ERISA Affiliate of Xxxxxx has any material liability.
(vii) Except as would notset forth in Section 3.2(i)(vii) of the Xxxxxx Disclosure Schedule, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover no Xxxxxx Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable lawprovides health benefits (whether or not insured), including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf employees or former employees of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover Xxxxxx or any of its Subsidiaries and no matter is pending after retirement or other termination of service (other than routine qualification determination filingscoverage mandated by Applicable Laws or benefits, copies the full cost of which have been furnished to Xxxxxx and Spinco is borne by the employee or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverformer employee).
(eviii) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Except as set forth in Section 401(a3.2(i)(viii)(A) of the Code has received a determination letter from Xxxxxx Disclosure Schedule, neither the IRS stating that they negotiation and the trusts maintained thereunder are exempt from taxation under Section 401(a) execution of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, nor the consummation of the transactions contemplated by hereby will (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any Xxxxxx Benefit Plan that will or may result in any payment (whether of severance pay or otherwise), acceleration of payment, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee or former employee of Xxxxxx or any of its Subsidiaries. Except as set forth in Section 3.2(i)(viii)(B) of the Xxxxxx Disclosure Schedule, there is no contract, agreement, plan or arrangement with an employee or former employee of Xxxxxx to which Xxxxxx or any of its Subsidiaries is a party as of the date of this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that wouldthat, individually or in collectively and as a result of the aggregatetransaction contemplated hereby (whether alone or upon the occurrence of any additional or subsequent events) or otherwise, would reasonably be expected to result in a material liability give rise to Hanoverthe payment of any amount that would not be deductible pursuant to Sections 280G or 162(m) of the Code.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(a6.21(a) of the Hanover MultiplAI Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) sets forth a true and complete list of ERISA)all MultiplAI Benefit Plans, and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit than mandatory statutory plans, programs programs, practices or arrangements that are required under applicable Law and arrangementsmaintained by any Governmental Authority.
(b) With respect to each MultiplAI Benefit Plan, whether or not subject MultiplAI has made available to ERISA andSPAC and Company, whether written or oral if applicable, (i) sponsoreda true and complete copy of the current plan document and all amendments thereto and each trust or other funding arrangement, maintained (ii) copies of the most recent summary plan description and any summaries of material modifications, and (iii) any material non-routine correspondence from any Governmental Authority with respect to any MultiplAI Benefit Plan within the past three (3) years.
(c) Neither the execution and delivery of this Agreement nor the other Transaction Documents nor the consummation of the Transactions will or contributed could reasonably be expected to (alone or in combination with any other event) (i) result in (A) a material increase in the amount of compensation or benefits to or required in respect of any current or former employee, officer, director, individual independent contractor or consultant; (B) any material payment or benefit becoming due to be contributed or in respect of any current or former employee, officer, director, individual independent contractor and/or consultant; (C) the acceleration of the vesting, funding or timing of payment of any material compensation or benefits payable to by Hanover or in respect of any current or former employee, officer, director, individual independent contractor or consultant; or (D) any increased or accelerated material funding obligation with respect to any MultiplAI Benefit Plan; (ii) limit the right to merge, amend or terminate any material MultiplAI Benefit Plan; or (iii) give rise to any “excess parachute payment” within the meaning of Section 280G of the Code. Neither MultiplAI nor any of its Subsidiaries has any material indemnity or gross-up obligation for any Taxes imposed under Section 4999 or Section 409A of the Code or otherwise.
(d) None of the MultiplAI Benefit Plans provides for, nor does MultiplAI or any of its Subsidiaries have or reasonably expect to which Hanover have any material liability or obligation to provide any post-employment or post-service health or welfare benefits or retiree medical or life insurance to any current or former employee, officer, director, individual independent contractor or consultant of MultiplAI or any of its Subsidiaries after termination of employment or service except (i) as set forth in any existing employment or severance agreement or (ii) as may be required under Section 4980B of the Code and Parts 6 and 7 of Title I of ERISA or similar applicable Law for which the covered individual pays the full cost of coverage.
(e) In all material respects, (i) each MultiplAI Benefit Plan is a party and has been established, maintained and administered in accordance with its terms and in compliance with the requirements of all applicable Laws, and (ii) in which any individual who is currently other than routine or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except non-material claims for benefits in the ordinary course of business. Hanover has heretofore delivered , no material actions, litigation, claims, lawsuits, audits, inquiries, arbitrations, investigations, or made available proceedings are pending or, to Xxxxxx and Spinco true and complete copies the knowledge of each Hanover MultiplAI, threatened, from any Governmental Authority in connection with any MultiplAI Benefit Plan and or by or on behalf of any amendments thereto (participant in any MultiplAI Benefit Plan, or if otherwise involving or relating to any MultiplAI Benefit Plan or the assets of any MultiplAI Benefit Plan or any trust thereunder or the plan is not a written plansponsor or plan administrator of any MultiplAI Benefit Plan (acting in such individual’s capacity as plan sponsor or plan administrator) and, a description thereof)to the knowledge of MultiplAI, no facts or circumstances exist that could reasonably be expected to give rise to any related trust such material action, litigation, claim, lawsuit, audit, inquiry, arbitration, investigation or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsproceeding.
(bf) Except as would notnot result in material liability to MultiplAI and its Subsidiaries, taken as a whole, either individually or in the aggregate, there have been no acts or omissions by MultiplAI or any of its Subsidiaries with respect to any MultiplAI Benefit Plan that have given or could reasonably be expected to result in a give rise to any fines, penalties, taxes or related charges under applicable Law.
(g) All material liability to Hanover, (i) neither Hanover nor liabilities or expenses of MultiplAI or any of its ERISA Affiliates has incurred Subsidiaries in respect of any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has MultiplAI Benefit Plan which have not been satisfied paid, if any, have been properly accrued on the MultiplAI Financial Statements in fullcompliance with IFRS. With respect to each MultiplAI Benefit Plan, all material contributions or payments and (ii) no condition exists premium or benefit payments that would reasonably are due or are required to be expected to result in Hanover incurring made under the terms of any such liability.
(i) No Hanover MultiplAI Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its applicable Laws, if any, have been made within the time periods prescribed by the terms of each MultiplAI Benefit Plan, and applicable lawLaws, includingas the case may be, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except except as would not result in a material liability to HanoverMultiplAI, and all such contributions or payments that are not yet due or required to be made with respect to under the terms of any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover MultiplAI Benefit Plan or any such trustin accordance with applicable Laws, if any, have been properly accrued in accordance with IFRS, applied on a consistent basis, and reflected on the MultiplAI Financial Statements.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 1 contract
Samples: Business Combination Agreement (APx Acquisition Corp. I)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists With respect to each material “employee benefit plan” (”, as defined in Section 3(3) of ERISA), and all other material Benefit Plans, under which any employee, director, independent contractor or former employee, director or independent contractor of ViewPoint or any of its Subsidiaries, or any spouse or dependent of any such employee benefitor director, bonushas any present or future right to benefits, incentive, deferred compensation, stock option and which is (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject was prior to ERISA and, whether written or oral (iits termination) sponsored, maintained or contributed to or required to be contributed to by Hanover ViewPoint or any of its Subsidiaries or to under which Hanover ViewPoint or any of its Subsidiaries is a party and (ii) in which has any individual who is currently present or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant future liability (the “Hanover ViewPoint Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof ViewPoint has any commitment or formal planprovided Legacy a true, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true correct and complete copies copy of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, i) the most recent annual reports report (Form 5500) filed with the IRS and, where applicable, the related audited financial statements thereof, (ii) such ViewPoint Benefit Plan and all related amendments thereto, (iii) each trust agreement, summaries, employee booklets or summaries handbooks, annuity contracts, insurance policies or any other Funding Arrangements relating to such ViewPoint Benefit Plan and all related amendments thereto, (iv) the most recent summary plan description for each ViewPoint Benefit Plan for which a summary plan description is required by ERISA, for Benefit Plans not subject to be prepared or filed under ERISA or the Code that are unwritten, any relevant summaries, (v) any contracts with independent contractors (including actuaries, investment managers, etc.) that relate to any ViewPoint Benefit Plan, and (vi) the most recent determination letter received from (or equivalent) issued by the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover ViewPoint Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation qualified under Section 401(a) of the Code. There are no unwritten amendments to any ViewPoint Benefit Plan.
(b) All contributions (including, respectivelywithout limitations, all employer contributions, employee salary reduction contributions and all premiums or other payments (other than claims)) that are due and payable on or before the Closing Date have been timely paid to or made with respect to each ViewPoint Benefit Plan and, to the extent not presently payable, appropriate reserves have been established for the payment and properly accrued in accordance with customary accounting practices.
(c) No ViewPoint Benefit Plan is subject to Title IV of ERISA or is a defined benefit plan within the meaning of Section 3(35) of ERISA or, without limitation, either a multiple employer plan (including plans sponsored by an employee leasing or professional employer organization), or “multi-employer plan” (as either such term is defined in the Code or ERISA). No ViewPoint Benefit Plan is subject to the funding standards of Code Section 412 or 436 or Section 302 of ERISA.
(d) There have been no prohibited transactions (described under Section 406 of ERISA or Section 4975(c) of the Code), breaches of fiduciary duty or any other breaches or violations of any law applicable to the ViewPoint Benefit Plans that would directly or indirectly subject ViewPoint or any of its Subsidiaries to any material taxes, penalties or other liabilities, including any liability arising through indemnification.
(e) Each ViewPoint Benefit Plan that is represented to be qualified under Code Section 401(a) either has a favorable determination letter that covers all existing amendments up to and including EGTRRA or is an adoption of a prototype or volume submitter plan for which a favorable opinion letter has been issued up to and including EGTRRA, on which ViewPoint is entitled to reliance equivalent to a determination letter, and, in either case, ViewPoint has no obligation to adopt any amendments for which the remedial amendment period under Code Section 401(b) has expired, and each trust maintained under ViewPoint is not aware of any Hanover circumstances likely to result in revocation of any such favorable determination or inability to rely on any opinion letter. Each ViewPoint Benefit Plan intended to satisfy the requirements of has been operated in compliance, in all material respects, with applicable law or in accordance with its terms and any related trust is exempt from federal income tax under Section 501(c)(9501(a) of the Code has satisfied such requirements and, in all reports, descriptions and filings required by the Code, ERISA or any such case, no event has occurred or condition is known government agency with respect to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover each ViewPoint Benefit Plan have been timely and completely filed or any such trustdistributed.
(f) No Hanover There are no pending claims, lawsuits or actions relating to any ViewPoint Benefit Plan is maintained outside (other than ordinary course claims for benefits) and, to the jurisdiction knowledge of the United States, or covers any employee residing or working outside the United StatesViewPoint none are threatened.
(g) Except as otherwise provided set forth in ViewPoint Disclosure Schedule 4.13(g), no written or oral representations have been made to any employee or former employee of ViewPoint promising or guaranteeing any employer payment or funding for the continuation of medical, dental, life or disability coverage for such individual, their dependent, or any beneficiary for any period of time beyond the end of the current plan year or beyond termination of employment, except as required by law. Neither the Merger, nor subsequent events where consequences result solely as a result of both the occurrence of the subsequent event and the occurrence of the Merger, shall accelerate the time of payment or vesting, or increase the amount, of compensation due to any employee, officer, former employee or former officer of ViewPoint or any of its Subsidiaries.
(h) No ViewPoint Benefit Plan, ViewPoint Stock Plans or other contract or arrangement exists that could result in the payment to any present or former employee or director of ViewPoint or any Subsidiary of ViewPoint of any money or other property or accelerate or provide any other rights or benefits to any present or former employee of ViewPoint or any Subsidiary of ViewPoint as a result of the transactions contemplated by this Agreement Agreement. Unless specifically disclosed on such schedule, no such payment will be nondeductible or subject to excise tax under Code Section 4999 or 280G, nor will ViewPoint or any Executed Transaction Agreementof its Subsidiaries be required to “gross up” or otherwise compensate any Person because of the limits contained in such Code sections.
(i) There are no surrender charges, penalties, or other costs or fees that would be imposed by any Person against ViewPoint, any ViewPoint Subsidiary, any ViewPoint Benefit Plan, or any other Person, including without limitation, any ViewPoint Benefit Plan participant or beneficiary as a result of the consummation of the transactions contemplated by this Agreement shall with respect to any insurance, annuity or investment contracts or other similar investment held by any ViewPoint Benefit Plan.
(j) Each ViewPoint Benefit Plan which is a “group health plan” (as defined in the Code and ERISA) has been operated in compliance, in all material respects, with Part 6 of Subtitle B of Title 1 of ERISA and Sections 4980B and 4980D of the Code and any analogous state law. Each such plan is in compliance, in all material respects, with, and the operation of each such plan will not result by itself or with the passage of time in the payment or acceleration incurrence of any amountmaterial penalty to ViewPoint or any of its Subsidiaries under those Code Sections nor the Patient Protection and Affordable Care Act and its companion xxxx, the accrual Health Care and Education Reconciliation Act of 2010, to the extent applicable.
(k) All obligations required to be performed by ViewPoint and its Subsidiaries under any ViewPoint Benefit Plan have been performed by them in all material respects and they are not in default under or acceleration in violation of any material provision of any ViewPoint Benefit Plan. To ViewPoint’s knowledge, no event has occurred that would constitute grounds for an enforcement action by any party against ViewPoint or any of its Subsidiaries under part 5 of Title I of ERISA under any ViewPoint Benefit Plan.
(l) Except as described in ViewPoint Disclosure Schedule 4.13(l), ViewPoint is insured by one or more insurance company(ies) for all health, dental, vision, life disability, survivor income benefits, or similar claims relating to any ViewPoint Benefit Plan and ViewPoint and its Subsidiaries do not self-insure against such claims.
(m) ViewPoint or a ViewPoint Subsidiary may, at any time, amend or terminate any ViewPoint Benefit Plan that it sponsors or maintains and may withdraw from any ViewPoint Benefit Plan to which it contributes (but does not sponsor or maintain), without obtaining the consent of any third party, other than an insurance company in the case of any benefit underwritten by an insurance company, and without incurring liability except for unpaid premiums or contributions due for the pay period that includes the effective date of such amendment, withdrawal or termination.
(n) Except as disclosed in ViewPoint Disclosure Schedule 4.13(n), no ViewPoint Benefit Plan is invested in or provides the opportunity for the purchase of any increase employer security or employer real property (within the meaning of Section 407(d) of ERISA).
(o) Each ViewPoint Benefit Plan that is a “nonqualified deferred compensation plan” within the meaning of Code § 409A(d)(1) (a “Nonqualified Deferred Compensation Plan”) subject to Code § 409A has (i) been maintained and operated since January 1, 2005 (or, if later, from its inception) in good faith compliance with Section 409A of the Code and all applicable IRS regulations promulgated thereunder and, as to any such plan in existence prior to January 1, 2005, has not been “materially modified” (within the meaning of IRS Notice 2005-1) at any time after October 3, 2004, or has been amended in a manner that conforms with the requirements of Section 409A of the Code, and (ii) since January 1, 2009, been in documentary and operational compliance with Section 409A of the Code and all applicable IRS guidance promulgated thereunder. No additional tax under Section 409A(a)(1)(ii) of the Code has been or is reasonably expected to be incurred by a participant in any vested interest such ViewPoint Benefit Plan or entitlement to any benefit other contract, plan, program, agreement, or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverarrangement.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(aExcept for the arrangements set forth in Schedule 3.19(c) of the Hanover Lilien Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA)Schedule, and all other material employee benefitneither Lilien nor Lilien Corp. sponsors, bonusmaintains or contributes to any pension, incentiveprofit-sharing, deferred compensation, bonus, stock option (or other equity-based)option, share appreciation right, severance, change in controlgroup or individual health, welfare (including post-retirement medical and dental, medical, life insurance) and fringe benefit plans, programs and arrangementssurvivor benefit, or similar plan, policy or arrangement, whether formal or not subject to ERISA andinformal, for the benefit of any director, member, officer, consultant, or employee of any of them, whether written active or oral (i) sponsored, terminated; nor has Lilien or Lilien Corp. ever maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal such plan, whether legally binding policy, or notarrangement that was subject to ERISA. Each of the arrangements set forth in Schedule 3.19(c) of the Lilien Disclosure Schedule is herein referred to as an “Employee Benefit Plan.” With respect to each Employee Benefit Plan, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover Seller has heretofore delivered provided Buyer with, or made available to Xxxxxx Buyer, complete and Spinco true and complete correct copies of (i) each Hanover Employee Benefit Plan Plan, including all amendments thereto, (ii) the most recent summary plan description (if any) and any amendments thereto all other documents pursuant to which the Employee Benefit Plans are maintained, (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, iii) the most recent annual reports or summaries required to be prepared or report (Form 5500 series) filed under ERISA or the Code and the most recent determination letter received from with the IRS (with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedulesattachments), (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in fullif any, and (iiiv) no condition exists that would reasonably be expected to result all IRS determination letters, rulings and opinions received by Lilien or Lilien Corp., if any, in Hanover incurring respect of any such liability.
(iapplicable Employee Benefit Plans. Except as set forth in Schedule 3.19(c) No Hanover of the Lilien Disclosure Schedule, each Employee Benefit Plan is and has been maintained and operated in compliance, in all material respects, with the terms of such plan and with the applicable requirements prescribed (whether as a “multiemployer pension plan,” matter of substantive Law or as defined in Section 3(37necessary to secure favorable Tax treatment) of ERISA by any and (ii) none of Hanoverall statutes, governmental, or any ERISA Affiliate thereof has made court orders, or suffered a “complete withdrawal” governmental rules or a “partial withdrawal,” as such terms are respectively defined regulations in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected effect from time to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable lawtime, including, but not limited to, ERISA, ERISA and the Code. Each Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code is so qualified. Absence of Certain Events and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. Arrangements: There are is no pending or, to Hanover’s Knowledgethe Knowledge of Seller, threatened claims bythreatened, on behalf of legal action, Proceeding, or against any of the Hanover Benefit Plans or any assets thereofinvestigation, other than routine claims for benefits benefits, concerning any Employee Benefit Plan, or any fiduciary or service provider thereof and, to the Knowledge of Seller, there is no basis for any such legal action or Proceeding. With respect to each Employee Benefit Plan, to the Knowledge of Seller, neither Lilien, Lilien Corp. nor any other Party in interest in respect thereof have engaged in a prohibited transaction that could subject Lilien or Lilien Corp., directly or indirectly, to Liability under such plansSections 409 or 502(i) of ERISA or Section 4975 of the Code. No communication, report or disclosure has been made by Seller or Lilien Corp. with respect to any Employee Benefit Plan that, if adversely determined couldat the time made, individually did not accurately reflect the material terms and operations of any Employee Benefit Plan or in the aggregate, reasonably be expected to that would result in a Material Adverse Effect on Hanover Effect. No Employee Benefit Plan requires Lilien or any Lilien Corp. to provide welfare benefits subsequent to termination of its Subsidiaries and no matter is pending employment to employees or their beneficiaries (other than routine qualification determination filings, copies of which have been furnished except to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRSextent required by applicable state insurance laws, the United States Department Consolidated Omnibus Budget Reconciliation Act of Labor or the PBGC that would1985 (COBRA) and Title I, individually or in the aggregate, reasonably be expected Part 6 of ERISA). Neither Lilien nor Lilien Corp. has undertaken to result in a material liability to Hanover.
(e) Each Hanover maintain any Employee Benefit Plan intended to be “qualified” within the meaning for any specific period of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, time and each trust maintained under any Hanover Benefit Plan intended such plan is terminable at the sole discretion of Lilien or Lilien Corp., subject only to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably constraints as may be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) imposed by applicable Law. No Hanover Employee Benefit Plan is maintained outside pursuant to a collective bargaining agreement or, is or has been subject to the jurisdiction minimum funding requirements of Section 302 of ERISA or Section 412 of the United States, Code or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the is a defined benefit pension plan. The consummation of the transactions contemplated by this Agreement shall not result by itself will not, either alone or in combination with any other event expressly contemplated hereby in this Agreement; (i) except as set forth in Schedule 3.19(c) of the passage Lilien Disclosure Schedule, entitle any current or former employee or officer of Lilien or Lilien Corp. to severance pay, or any other payment, except as expressly provided in this Agreement; (ii) accelerate the time in the of payment or acceleration increase the amount of or vesting of compensation or benefits due any amount, the accrual such employee or acceleration officer; (iii) result in termination or forgiveness of any indebtedness or (iv) otherwise give rise to a benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, would be reasonably be expected to result be treated as a parachute payment under Section 280G of the Code. With respect to each Employee Benefit Plan which is intended or deemed to be a “non-qualified deferred compensation plan,” Lilien or Lilien Corp., as the case may be, has operated such Plan during 2006 and 2007 in a material liability to Hanovergood faith compliance with Code Section 409A, IRS Notice 2005-1 and any treasury regulations and other applicable guidance issued by the IRS.
Appears in 1 contract
Samples: Asset Purchase and Merger Agreement (Sysorex Global Holdings Corp.)
Benefit Plans.
(a) Section 5.13(aSchedule 5.11(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is sets forth a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies list of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsLSG Employee Plan.
(b) Except as would notEach LSG Employee Plan has been established, individually operated and administered in all material respects in accordance with its terms, and each such LSG Employee Plan is in material compliance with all applicable Laws. All contributions (including all employer contributions and employee salary reduction contributions) and premiums required to have been paid by LSG to any LSG Employee Plan under the terms of any such LSG Employee Plan or in its related trust, insurance contract or other funding arrangement, or pursuant to any applicable law have been paid within the aggregatetime prescribed by any such LSG Employee Plan, reasonably trust, contract or arrangement, or applicable Law. All contributions and premiums for any period ending on or before the Closing Date that are not yet due have been made to each such LSG Employee Plan or its related trust, insurance contract or other funding arrangement.
(c) All amendments and actions required to bring each LSG Employee Plan into conformity with applicable provisions of ERISA, the Code and other applicable law have been made or taken, except to the extent that such amendments or actions are not required by law to be expected to result in made or taken until after the Closing Date.
(d) No LSG Employee Plan is (a) a material liability to Hanover, (i) neither Hanover nor any “multiple employer plan” for purposes of its ERISA Affiliates has incurred any liability under Title IV Sections 4063 or Section 302 4064 of ERISA or under (b) subject to Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in or Section 3(37) of ERISA and (ii) none of Hanover, 302 or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 Title IV of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
or (dc) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation qualified under Section 401(a) of the Code. Neither LSG nor, respectivelyto the Knowledge of LSG, any LSG ERISA Affiliate has incurred any liability (including as a result of any indemnification obligation) under Title I or Title IV of ERISA for which LSG could be liable. No event has occurred, no condition exists, and each trust maintained there are no pending or, to the Knowledge of LSG, threatened claims by or on behalf of any LSG Employee Plan by any person covered thereby (other than ordinary claims for benefits submitted by participants or beneficiaries) or any Governmental Authority that would subject LSG, either directly or by reason of affiliation with an LSG ERISA Affiliate, to any material Tax, fine, Encumbrance, or other liability imposed by ERISA, the Code or other applicable Law. No asset of LSG is subject to any Encumbrance under ERISA or the Code. None of LSG, its Affiliates, and/or any Hanover Benefit Plan intended LSG ERISA Affiliate has any liability or contributes (or has at any time contributed or had an obligation to satisfy contribute) to any “multiemployer plan” (within the requirements meaning of Section 501(c)(94001(a)(3) of ERISA).
(e) With respect to each LSG Employee Plan, LSG has provided or made available to LED true and complete copies of: (i) such LSG Employee Plan, if written, or a description of such LSG Employee Plan, if not written, and (ii) to the Code has satisfied extent applicable to such requirements andLSG Employee Plan: all trust agreements, in insurance contracts or other funding arrangements; the three most recent Forms 5500 required to have been filed with the IRS and all schedules thereto; the most recent IRS determination letter, all current summary plan descriptions, all material communications received from or sent to the IRS or the Department of Labor (including a written description of any oral communication); and all amendments and modifications to any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trustdocument.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided set forth in Schedule 5.11(f), No LSG Employee Plan exists that could result in the payment to any LSG employee of any money or contemplated by this Agreement other property (including any severance payments, bonus of other compensation) or in the acceleration of any Executed Transaction Agreement, the consummation other rights or benefits to any LSG employee as a result of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverherein.
Appears in 1 contract
Samples: Exchange and Contribution Agreement
Benefit Plans. (a) Section 5.13(a) Schedule 3.15 contains a list of the Hanover Disclosure Letter lists each material “all "employee pension benefit plan” plans" (as defined in Section 3(33(2) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), maintained or contributed to by Sellers or any of their affiliates for the benefit of any officers or employees of the Business ("Seller Pension Plans") and all "employee welfare benefit plans" (as defined in Section 3(1) of ERISA), and all other material employee benefit, bonus, incentivestock option, stock purchase, deferred compensation, stock option (compensation plans or arrangements and other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and employee fringe benefit plansplans maintained, programs or contributed to, by Sellers or any of their affiliates for the benefit of any officers or employees of the Business (all the foregoing, including Seller Pension Plans, being herein called "Seller Benefit Plans"). Sellers have made available to Purchaser true, complete and arrangements, whether or not subject to ERISA and, whether written or oral correct copies of (i) sponsoredeach Seller Benefit Plan, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or report on Form 5500 filed under ERISA or with the Code and the most recent determination letter received from the IRS Internal Revenue Service with respect to each Seller Benefit Plan (if any such plan intended to qualify under Section 401 of report was required), (iii) the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements summary plan description for each Seller Benefit Plan for which such a summary plan description is required and (Civ) actuarial valuation reportseach trust agreement, group annuity contract or other funding and financing arrangement relating to any Seller Benefit Plan.
(b) Except as would not, individually or Each Seller Benefit Plan has been administered in all material respects in accordance with its terms. Seller and all the aggregate, reasonably be expected to result Seller Benefit Plans are in a compliance in all material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 respects with the applicable provisions of ERISA or under Section 412 of and the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liabilityall applicable collective bargaining agreements.
(ic) No Hanover Benefit Plan is a “Seller contributes to, has ever contributed to, or has ever been required to contribute to any "multiemployer pension plan,” " (as defined in Section 3(37) of ERISA) and no Seller has any liability (including withdrawal liability) under any multiemployer plan.
(d) No Seller has incurred any cost, fee, expense, liability, claim, suit, obligation or other damage under Title IV of ERISA and (ii) none that could give rise to the imposition of Hanoverany liability, cost, fee, expense or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for obligation which would reasonably be expected to result in become a material liability of Purchaser and, to Hanover.
(d) Except as the Knowledge of Sellers, no facts or circumstances exist that could give rise to any such cost, fee, expense, liability, claim, suit, obligation or other damage, which would not, individually or in the aggregate, be reasonably be expected to result in become a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverPurchaser.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(aSchedule 3.18(a) hereto sets forth a list of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover HSI Benefit Plans”). Neither Hanover.
(b) With respect to each HSI Benefit Plan, any of its Subsidiaries nor any ERISA Affiliate thereof HSI has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to the Xxxxxx and Spinco Group true and complete copies of each Hanover Benefit Plan of: (i) any and all material plan texts and agreements including the current employee handbook(s) applicable to Schein Business Employees, (ii) any amendments thereto and all outstanding summary plan descriptions and material modifications thereto, (or if iii) the plan is not a written plan, a description thereofthree (3) most recent annual reports (Form 5500), any related trust or other funding vehicleif applicable, (iv) the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and periodic accounting of plan assets, if applicable, (v) the most recent determination letter or opinion letter received from the IRS with respect to each such plan intended to qualify under Section 401 of IRS, if applicable, and (vi) the Code and the three most recent years actuarial reports (Aif applicable) for all HSI Benefit Plans. The disclosures under this paragraph are only required to the Form 5500s and attached Schedulesextent they relate to HSI Benefit Plans for service providers, (B) audited financial statements and (C) actuarial valuation reportswhether current, former or retired, whose duties are primarily or solely related to the Contributed Schein Vet Business.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(ec) Each Hanover HSI Benefit Plan intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code has received a favorable determination letter or opinion letter from the IRS stating that they regarding such plan’s qualified status for all statutory and regulatory changes with respect to plan qualification requirements for which the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectivelyIRS will issue such a letter for such plan (taking into account any applicable remedial amendment period currently in effect for such plan), and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, there are no event has occurred facts or condition is known to exist circumstances that would could reasonably be expected to adversely affect cause the loss of such tax-qualified status for any such Hanover qualification. The representations in this paragraph relate solely to HSI, its Subsidiaries and the HSI Benefit Plan or any such trustPlans as they relate to the Contributed Schein Vet Business.
(fd) No Hanover Benefit Plan is maintained outside Neither the jurisdiction execution and delivery of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, nor the consummation of the transactions contemplated by this Agreement shall not and the other Transaction Documents will (either alone or in combination with another event) result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law amount that wouldcould, individually or in combination with any other such payment, constitute an “excess parachute payment,” as defined in Section 280G(b)(l) of the aggregateCode, reasonably made or to be expected made to or for the benefit of any “disqualified individual” with respect to HSI or any Affiliate.
(e) No HSI Benefit Plan is a Multiemployer Plan or subject to ERISA Section 312, Title IV of ERISA or Code Section 412. During the current year and within the six (6) years prior, none of HSI, any ERISA Affiliate or any of their predecessors has (i) maintained, contributed to, participated in, maintains, contributes to or participates in or has or has had any liability with respect to or has terminated or filed any notice of intent to terminate, any plan subject to ERISA Section 312, Title IV of ERISA or Code Section 412; (ii) incurred any outstanding liability under Section 4062 of ERISA to the Pension Benefit Guaranty Corporation, or to a trustee appointed under Section 4042 of ERISA, or (iii) incurred a complete or partial withdrawal from a Multiemployer Plan.
(f) All contributions (including all employer contributions and employee salary reduction contributions) and payments (including all insurance premiums and intercompany charges) required to have been made under the terms of any HSI Benefit Plan, other agreement or in accordance with Applicable Law and GAAP, as of the date hereof have been timely made or reflected on HSI’s financial statements and all contributions and premium payments for any period ending on or prior to the Closing which are not yet due will, on or prior to the Closing, have been paid or accrued on HSI’s financial statements in accordance with GAAP.
(g) Except as set forth in Schedule 3.18(g), neither HSI, nor NLS, nor any ERISA Affiliate has any obligation to provide or make available post-employment welfare benefits or welfare benefit coverage for any employee, officer, director, stockholder, consultant or other service provider whose duties are primarily or solely related to the Contributed Schein Vet Business (whether current, former or retired) or any beneficiary thereof, except as may be required under COBRA, and at the expense of the employee or former employee.
(h) No liability or obligation with respect to the Contributed Schein Vet Business under the WARN Act or any similar state or local law has been incurred which remains unsatisfied.
(i) Neither HSI nor any of its Subsidiaries has any direct or indirect liability, whether actual or contingent, with respect to any misclassification of any person as an independent contractor rather than as an employee except where any such misclassification would not result in a material liability to HanoverXxxxxx Holding or any of its Subsidiaries.
Appears in 1 contract
Samples: Omnibus Agreement (Henry Schein Inc)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, None of the employee benefit plans maintained or contributed to or required to be contributed to at any time by Hanover the Borrower or any of its Subsidiaries Subsidiary or to the trusts created thereunder has engaged in a prohibited transaction or violated any Foreign Benefit Law which Hanover or could subject any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional such employee benefit plan or modify trust to a material tax or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered penalty on prohibited transactions imposed under Internal Revenue Code Section 4975 or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 any Foreign Benefit Law;
(ii) None of the Code employee benefit plans maintained at any time by the Borrower or any Subsidiary which are employee pension benefit plans and which are subject to Title IV of ERISA or any Foreign Benefit Law or the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except trusts created thereunder has been terminated so as would not, individually or in the aggregate, reasonably be expected to result in a material liability of the Borrower under ERISA or under any Foreign Benefit Law nor has any such employee benefit plan of the Borrower or any Subsidiary incurred any material liability to Hanoverthe Pension Benefit Guaranty Corporation established pursuant to ERISA or any other Person exercising similar duties and functions under any Foreign Benefit Law, (i) other than for required insurance premiums which have been paid or are not yet due and payable; neither Hanover the Borrower nor any Subsidiary has withdrawn from or caused a partial withdrawal to occur with respect to any Multi-employer Plan resulting in any assessed and unpaid withdrawal liability; the Borrower and the Subsidiaries have made or provided for all contributions to all such employee pension benefit plans which they maintain and which are required as of its ERISA Affiliates the end of the most recent fiscal year under each such plan; neither the Borrower nor any Subsidiary has incurred any liability accumulated funding deficiency with respect to any such plan, whether or not waived; nor has there been any reportable event, or other event or condition, which presents a material risk of termination of any such employee benefit plan by such Pension Benefit Guaranty Corporation or any other Person exercising similar duties and functions under any Foreign Benefit Law;
(iii) The present value of all vested accrued benefits under the employee pension benefit plans which are subject to Title IV or Section 302 of ERISA or under Section 412 any Foreign Benefit Law, maintained by the Borrower or any Subsidiary, did not, as of the Code that has not been satisfied in fullmost recent valuation date for each such plan, and (ii) no condition exists that would reasonably be expected exceed the then current value of the assets of such employee benefit plans allocable to result in Hanover incurring any such liability.benefits;
(iiv) No Hanover The consummation of the Loans and the issuance of the Letters of Credit provided for in Article II and Article III will not involve any prohibited transaction under ERISA or any Foreign Benefit Plan Law which is not subject to a “multiemployer statutory or administrative exemption;
(v) To the best of the Borrower's knowledge, each employee pension plan,” as defined in Section 3(37) benefit plan subject to Title IV of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made Foreign Benefit Law, maintained by the Borrower or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISAany Subsidiary, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms in all material respects and is in compliance in all material respects with all applicable lawrequire- ments of ERISA and other applicable laws, including, but not limited to, ERISA, the Code regulations and the laws of rules and any applicable foreign jurisdiction. Except as would not result in a material Foreign Benefit Law;
(vi) There has been no withdrawal liability to Hanover, all contributions required to be made incurred and unpaid with respect to any Hanover Benefit Multi-employer Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of which the Hanover Benefit Plans Borrower or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually Subsidiary is or in the aggregate, reasonably be expected to result in was a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.contributor;
(evii) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, As used in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of terms "employee benefit plan," "employee pension benefit plan," "accumulated funding deficiency," "reportable event," and "accrued benefits" shall have the transactions contemplated by this Agreement respective meanings assigned to them in ERISA, and the term "prohibited transaction" shall not result by itself or with have the passage of time meaning assigned to it in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.Code Section 4975 and ERISA;
Appears in 1 contract
Samples: Credit Facilities and Reimbursement Agreement (Proffitts Inc)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (Deliver to Lender written notice, as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA soon as possible and, whether written or oral (i) sponsoredin any event, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.later than
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37Ten (10) of ERISA and (ii) none of HanoverBusiness Days after Borrower, its Subsidiaries, or any ERISA Affiliate thereof knows or has made reason to know that: (1) an ERISA Event or suffered a “complete withdrawal” Reportable Event or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any comparable event under any applicable foreign jurisdiction. Except as would not result law has occurred or is likely to occur; or (2) that a contributing sponsor of a Benefit Plan is subject to the advance reporting requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof) or under any applicable foreign law and an event described in subsection .62-.68 of PBGC Regulation Section 4043 or a material liability comparable event under applicable foreign law is reasonably expected to Hanoveroccur with respect to such Benefit Plan within the following 30 days;
(ii) Three (3) Business Days after Borrower, all contributions its Subsidiaries, or any ERISA Affiliate knows or has reason to know that: (1) any Governmental Authority intends to investigate or terminate any Benefit Plan or to have or consider having a trustee appointed to administer any Benefit Plan or any trustee seeks to terminate any Benefit Plan; (2) that an accumulated funding deficiency has been incurred or an application may be or has been made for a waiver or modification of the minimum funding standard with respect to a Plan; (3) any Person files a lawsuit involving a Plan; (4) any contribution required to be made with respect to any Hanover a Plan has been or will be made late; (5) a Benefit Plan has been or may be involuntarily terminated, reorganized, partitioned or declared insolvent; (6) a Benefit Plan has an Unfunded Current Liability in excess of $9,200,000, or the aggregate Unfunded Current Liability of all Benefit Plans is in excess of $16,240,000; (7) proceedings may be or have been timely made. There are no pending instituted to terminate or appoint a trustee to administer a Benefit Plan; (8) an involuntary proceeding has been instituted pursuant to Section 515 of ERISA or under any applicable foreign law to collect a delinquent contribution to a Benefit Plan; (9) Borrower, its Subsidiaries, or any ERISA Affiliate will or may incur any liability to or on account of the termination of or withdrawal from a Benefit Plan; or (10) a material adverse change in the funding status of, or accrued benefits under, a Benefit Plan from that reflected on the documents attached as Schedule 5.13 has occurred.
(b) Any such notice shall (i) set forth to the extent known and in reasonable detail the occurrence and the action, if any, that Borrower, its Subsidiaries, any ERISA Affiliate, Plan, or Benefit Plan administrator is required or proposes to take, (ii) attach any notice required or proposed to be given to or filed by any entity listed in clause (i) to or with the PBGC or any other Governmental Authority or provided to any Benefit Plan participant; and (iii) any notice received by any entity listed in clause (i) from the PBGC or any other Governmental Authority.
(c) Deliver to Lender copies of documents required to be filed with any Governmental Authority with respect to any Benefit Plan within 20 Business Days of filing such documents, including all documents that must be furnished to the PBGC and a complete copy of the annual report (5500 series) of each Benefit Plan (including all related financial and actuarial statements and opinions and other supporting statements, certifications, schedules and information) required to be filed with the Internal Revenue Service or any other Governmental Authority.
(d) Deliver to Lender, upon Lender's request, a copy of each Plan (or, where any such plan is not in writing, complete description thereof) (and if applicable, related trust agreements or other funding instruments) and all amendments thereto, all written interpretations thereof and written descriptions thereof that have been distributed to Hanover’s Knowledgeemployees or former employees of Borrower, threatened claims by, on behalf of or against any of the Hanover Benefit Plans its Subsidiaries or any assets thereofof its ERISA Affiliates; (ii) for the three most recent plan years, annual reports on Form 5500 Series required or any other than routine claims report to be filed with any Governmental Authority for benefits under such plansthe German Benefit Plan, thatthe UK Benefit Plan and any other Benefit Plan; (iii) all actuarial reports prepared for the last three plan years for the German Benefit Plan, if adversely determined couldthe UK Benefit Plan and any other Benefit Plan; (iv) a listing of all Multiemployer Plans, individually or in with the aggregate, reasonably aggregate amount of the most recent annual contributions required to be expected to result in a Material Adverse Effect on Hanover made by Borrower or any of its Subsidiaries or ERISA Affiliates to each such plan and no matter is pending (other than routine qualification determination filings, copies of which have the collective bargaining agreements requiring such contributions; (v) any information that has been furnished provided to Xxxxxx and Spinco Borrower or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of its Subsidiaries or ERISA Affiliates regarding withdrawal liability under any Multiemployer Plan or any liability under any other Benefit Plan; and (vi) the Hanover Benefit Plans before aggregate amount of the IRS, the United States Department most recent annual payments made to former employees of Labor Borrower or the PBGC that would, individually any of its Subsidiaries or in the aggregate, reasonably be expected to result in a material liability to HanoverERISA Affiliates under any Plan.
(e) Each Hanover Cause Anacomp UK to pay or contribute to the UK Benefit Plan intended an amount equal to the amounts required to be “qualified” within paid or contributed by Anacomp UK, under the meaning of Section 401(a) rules of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover UK Benefit Plan or any such trust.
(f) No Hanover applicable law and cause Anacomp Germany and Xidex GmbH, a company organized under the laws of Germany to pay or contribute to the German Benefit Plan, an amount equal to the amounts required under the rules of the German Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United Statesapplicable law.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option Parent shall provide (or other equity-based), severance, change in control, welfare (including post-retirement medical cause to be provided) to Agent and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral each Lender (i) sponsoredpromptly and in any event within 5 Business Days after Borrower, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither HanoverParent, any of its Borrower’s Subsidiaries nor or any ERISA Affiliate thereof knows or has any commitment or formal planreason to know that, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under any Benefit Plan, any ERISA Event or “accumulated funding deficiency” (within the meaning of Section 401 of 412 or the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV IRC or Section 302 of ERISA ERISA) has occurred or that an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the Code that has not been satisfied in fullIRC, a statement of an Authorized Person setting forth the details of such occurrence and the action, if any, which Borrower, Parent or such Subsidiary or ERISA Affiliate proposes to take with respect thereto, (ii) no condition exists that would reasonably be expected to result promptly and in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) event within 5 Business Days after receipt thereof by Borrower, Parent, any of ERISA and (ii) none of Hanover, Borrower’s Subsidiaries or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, from the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filingsPBGC, copies of which each notice received by any of them of the PBGC’s intention to terminate any Benefit Plan or to have been furnished a trustee appointed to Xxxxxx administer any Benefit Plan, (iii) promptly and Spinco or will be promptly furnished in any event within 5 Business Days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to Xxxxxx and Spinco when madethe annual report (Form 5500 Series) with respect to each Benefit Plan, (iv) promptly and in any event within 5 Business Days after Borrower, Parent, any of the Hanover Benefit Plans before the IRS, the United States Department of Labor Borrower’s Subsidiaries or the PBGC any ERISA Affiliate knows or has reason to know that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” required installment within the meaning of Section 401(a) 412 of the Code IRC has received not been made when due with respect to a determination letter Benefit Plan, a statement of an Authorized Person describing the failure to make such installment and (vi) promptly and in any event within 5 Business Days after receipt thereof by Borrower, Parent, any of Borrower’s Subsidiaries or any ERISA Affiliate from a sponsor of a Multiemployer Plan or from the IRS stating that they and PBGC, a copy of each notice received by any such Person concerning the trusts maintained thereunder are exempt from taxation imposition of withdrawal liability under Section 401(a4202 of ERISA or indicating that a Multiemployer Plan may enter reorganization status under Section 4241 of ERISA. Parent shall timely make (or cause to be timely made) each required contribution (other than a de minimis contribution) with respect to each Benefit Plan (including each quarterly contribution required by Section 412 of the Code, respectively, IRC at the time specified in such section) and shall provide (or cause to be provided) to Agent and each trust maintained under Lender promptly and in any Hanover event within 5 Business Days of each such contribution, proof that such contribution was made along with a statement from the Benefit Plan’s actuary indicating that such contribution constitutes full and timely payment of all required contributions then due with respect to such Benefit Plan intended to satisfy the requirements of Section 501(c)(9) and that there are no past-due contributions outstanding for any Benefit Plan. For purposes of the Code foregoing sentence only, a contribution that actually is made within 15 Business Days of when it actually was due shall be considered timely made if (i) the contribution is less than $1,000,000; (ii) the total outstanding past-due contributions with respect to all Benefit Plans (determined without regard to this sentence) do not exceed $1,000,000; and (iii) the PBGC has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or perfected a Lien with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement respect to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverBenefit Plan.
Appears in 1 contract
Benefit Plans. Schedule 5.11(a) sets forth a true and complete list of each LSG Employee Plan. Each LSG Employee Plan has been established, operated and administered in all material respects in accordance with its terms, and each such LSG Employee Plan is in material compliance with all applicable Laws. All contributions (including all employer contributions and employee salary reduction contributions) and premiums required to have been paid by LSG to any LSG Employee Plan under the terms of any such LSG Employee Plan or its related trust, insurance contract or other funding arrangement, or pursuant to any applicable law have been paid within the time prescribed by any such LSG Employee Plan, trust, contract or arrangement, or applicable Law. All contributions and premiums for any period ending on or before the Closing Date that are not yet due have been made to each such LSG Employee Plan or its related trust, insurance contract or other funding arrangement. All amendments and actions required to bring each LSG Employee Plan into conformity with applicable provisions of ERISA, the Code and other applicable law have been made or taken, except to the extent that such amendments or actions are not required by law to be made or taken until after the Closing Date. No LSG Employee Plan is (a) Section 5.13(a) a "multiple employer plan" for purposes of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) Sections 4063 or 4064 of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected subject to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in or Section 3(37) of ERISA and (ii) none of Hanover, 302 or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 Title IV of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
or (dc) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation qualified under Section 401(a) of the Code. Neither LSG nor, respectivelyto the Knowledge of LSG, any LSG ERISA Affiliate has incurred any liability (including as a result of any indemnification obligation) under Title I or Title IV of ERISA for which LSG could be liable. No event has occurred, no condition exists, and each trust maintained there are no pending or, to the Knowledge of LSG, threatened claims by or on behalf of any LSG Employee Plan by any person covered thereby (other than ordinary claims for benefits submitted by participants or beneficiaries) or any Governmental Authority that would subject LSG, either directly or by reason of affiliation with an LSG ERISA Affiliate, to any material Tax, fine, Encumbrance, or other liability imposed by ERISA, the Code or other applicable Law. No asset of LSG is subject to any Encumbrance under ERISA or the Code. None of LSG, its Affiliates, and/or any Hanover Benefit Plan intended LSG ERISA Affiliate has any liability or contributes (or has at any time contributed or had an obligation to satisfy contribute) to any "multiemployer plan" (within the requirements meaning of Section 501(c)(94001(a)(3) of ERISA). With respect to each LSG Employee Plan, LSG has provided or made available to LED true and complete copies of: (i) such LSG Employee Plan, if written, or a description of such LSG Employee Plan, if not written, and (ii) to the Code has satisfied extent applicable to such requirements andLSG Employee Plan: all trust agreements, in insurance contracts or other funding arrangements; the three most recent Forms 5500 required to have been filed with the IRS and all schedules thereto; the most recent IRS determination letter, all current summary plan descriptions, all material communications received from or sent to the IRS or the Department of Labor (including a written description of any oral communication); and all amendments and modifications to any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) document. Except as otherwise provided set forth in Schedule 5.11(f), No LSG Employee Plan exists that could result in the payment to any LSG employee of any money or contemplated by this Agreement other property (including any severance payments, bonus of other compensation) or in the acceleration of any Executed Transaction Agreement, the consummation other rights or benefits to any LSG employee as a result of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverherein.
Appears in 1 contract
Samples: Exchange and Contribution Agreement (Lighting Science Group Corp)
Benefit Plans. (a) Section 5.13(a) As of the Hanover Disclosure Letter lists date hereof, Schedule 3.17(a) sets forth a correct and complete list of each Company Benefit Plan and each material “employee benefit plan” Seller Benefit Plan. With respect to each Company Benefit Plan and each Seller Benefit Plan, the Company Group has provided a correct and complete copy of the following documents, to the extent applicable: (as defined in Section 3(3i) of ERISA)all current plan documents, and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and amendments thereto; (ii) in which the three (3) most recent filed IRS Form 5500s and all schedules thereto; (iii) the most recent IRS determination letter or opinion letter, as applicable; (iv) the most recent summary plan descriptions and summaries of material modifications thereto; (v) written summaries of all material terms of non-written Company Benefit Plans and Seller Benefit Plans (if any) and (vi) any individual who is currently communications to participants regarding any material modifications of any Company Benefit Plan or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Seller Benefit Plan that would affect any Hanover Employee except in take effect on or after the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsdate hereof.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, set forth on Schedule 3.17(b):
(i) neither Hanover nor No Company Benefit Plan or Seller Benefit Plan is a “multiple employer plan” described in Section 413(c) of the Code, and no Company Group Member has, within the last six years, contributed to, been required to contribute to, or otherwise had any Liability in connection with any “multiemployer pension plan” (as defined in Sections 3(37) or 4001(a)(3) of its ERISA) or “multiple employer plan”;
(ii) No Company Benefit Plan or Seller Benefit Plan is an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA Affiliates has incurred any liability under that is subject to Title IV or Section 302 of ERISA or under Section 412 of the Code that and no Company Group Member has not been satisfied any Liability in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.connection with an Employee Benefit Plan of an ERISA Affiliate under Title IV of ERISA;
(iiii) No Hanover Each Company Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Seller Benefit Plan has been operated established and administered in all material respects in accordance with its terms and in compliance with applicable lawLaws, including, but not limited to, ERISA, the Code including ERISA and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Code;
(iv) Each Company Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Seller Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are is intended to be exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9501(a) of the Code has satisfied received a favorable determination letter from the U.S. Internal Revenue Service (the “IRS”) or other letter indicating that it is so qualified, or is in the process of obtaining such requirements a letter. To the Knowledge of Seller, nothing has occurred since the issuance of the IRS determination letters referred to in this Section 3.17(b)(iv) that could result in the revocation of any such IRS determination letters or adversely affect the qualification of such Company Benefit Plan or Seller Benefit Plan; and
(v) For the past three (3) years there have been no and there is no pending or, to the Knowledge of Seller, threatened Action (other than a routine claim for benefits) with respect to any Company Benefit Plan or Seller Benefit Plan.
(c) To the Knowledge of Seller, no Person has engaged in any such casenon-exempt “prohibited transaction”, no event has occurred as defined in Section 4975 of the Code or condition is known Section 406 of ERISA, with respect to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Company Benefit Plan or any such trust.
(f) No Hanover Seller Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, could reasonably be expected to result in a material Liability to the Company Group or Buyer. No Company Benefit Plan or Seller Benefit Plan provides medical or other welfare benefits with respect to any current or former employees, independent contractors or directors of the Company Group beyond their period of service, other than coverage mandated by applicable Law at the sole expense of the participant. All contributions, premiums or other payments required to be made by any Company Group Member have at all times been timely made or properly accrued with respect to each Company Benefit Plan and Seller Benefit Plan. The Company Group has not incurred (whether or not assessed) any material Tax, penalty or other Liability that may be imposed under the Patient Protection and Affordable Care Act, including the Health Care and Education Reconciliation Act of 2010, as amended and including any guidance issued thereunder, including pursuant to Section 4980D or 4980H, 6721 or 6722 of the Code.
(d) With respect to each Company Benefit Plan or Seller Benefit Plan that is not a U.S. benefit plan (each, a “Foreign Benefit Plan”), (i) such Foreign Benefit Plan has been maintained, funded and administered in material compliance with applicable Laws and the requirements of such Foreign Benefit Plan’s governing documents and any applicable collective bargaining agreements, (ii) all contributions required to be made by any Company Group Member to such Foreign Benefit Plan have been timely paid or made in full or, to the extent not yet due, properly accrued as of the Balance Sheet Date in accordance with the terms of the Foreign Benefit Plan and all applicable Laws, (iii) such Foreign Benefit Plan has obtained from the Governmental Entity having jurisdiction with respect to such Foreign Benefit Plan any required determinations, if any, that such Foreign Benefit Plan is in compliance in all material respects with the applicable Laws and regulations of the relevant jurisdiction if such determinations are required in order to give effect to such Foreign Benefit Plan, (iv) there are no pending or, to the Knowledge of Seller, threatened investigations by any Governmental Entity, proceedings or claims (except for claims for benefits in the Ordinary Course) against such Foreign Benefit Plan, and (v) neither the execution and delivery of this Agreement, nor the consummation of the Transactions, either alone or in combination with another event (whether contingent or otherwise) will create or otherwise result in any liability with respect to Hanoversuch Foreign Benefit Plan. No Foreign Benefit Plan has any unfunded or underfunded liabilities not accurately accrued in accordance with GAAP or IFRS.
(e) Each Company Benefit Plan and Seller Benefit Plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A of the Code) complies and has at all times complied in form and operation with Section 409A of the Code. No Tax penalties or additional Taxes have been imposed or could be reasonably expected to be imposed on any current or former employee, officer, consultant, director or other service provider of the Company Group, and no acceleration of Taxes has occurred or could be reasonably expected to occur with respect to any such Person, in each case as a result of a failure to comply with Section 409A of the Code. No current or former employee, officer, consultant, director or other service provider of the Company Group is entitled to any gross-up, make-whole or similar payment in respect of any Taxes imposed by Section 409A or 4999 of the Code or otherwise.
(f) Except as set forth in Schedule 3.17(f), neither the execution and delivery of this Agreement nor the consummation of the Transactions will, either alone or in combination with another event, (i) entitle any current or former employee, independent contractor or director of the Company Group to any compensation, payment or benefit (including severance, change in control or transaction payments, or otherwise), except as required by applicable Law, (ii) accelerate the time of payment, vesting or funding of any compensation or benefits, or trigger or increase any compensation or benefits due to any current or former employee, independent contractor or director of the Company Group, (iii) limit the right to merge, amend or terminate any Company Benefit Plan, or (iv) result in any payment (whether in cash or property or the vesting of property) to any “disqualified individual” (within the meaning of Section 280G of the Code) that would, individually or in combination with any other such payment, constitute an “excess parachute payment” (within the meaning of Section 280G(b)(1) of the Code).
(g) Since January 1, 2020, none of the Company Group and its Affiliates have (i) reduced the compensation or benefits of any current or former employees, independent contractors or directors of the Company Group or otherwise reduced the working schedule of any current or former employees, independent contractors or directors of the Company Group, in each case for any reason relating to COVID-19, (ii) conducted any terminations, furloughs or other employee-related cost-cutting actions related to COVID-19, including but not limited to, reducing compensation, benefits or working schedules, or (iii) elected to defer any Taxes payable or delay any contributions to any Company Benefit Plan or Seller Benefit Plan pursuant to the CARES Act with respect to any current or former employees, independent contractors or directors of the Company Group.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Roper Technologies Inc)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option Parent shall provide (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurancecause to be provided) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral Agent (i) sponsoredpromptly and in any event within 5 Business Days after Borrower, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither HanoverParent, any of its Borrower’s Subsidiaries nor or any ERISA Affiliate thereof knows or has any commitment or formal planreason to know that, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under any Benefit Plan, any ERISA Event or “accumulated funding deficiency” (within the meaning of Section 401 of 412 or the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV IRC or Section 302 of ERISA ERISA) has occurred or that an application has been made to the Secretary of the Treasury for a waiver or modification of the minimum funding standard (including installment payments) or an extension of any amortization period under Section 412 of the Code that has not been satisfied in fullIRC, a statement of an Authorized Person setting forth the details of such occurrence and the action, if any, which Borrower, Parent or such Subsidiary or ERISA Affiliate proposes to take with respect thereto, (ii) no condition exists that would reasonably be expected to result promptly and in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) event within 5 Business Days after receipt thereof by Borrower, Parent, any of ERISA and (ii) none of Hanover, Borrower’s Subsidiaries or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, from the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filingsPBGC, copies of which each notice received by any of them of the PBGC’s intention to terminate any Benefit Plan or to have been furnished a trustee appointed to Xxxxxx administer any Benefit Plan, (iii) promptly and Spinco or will be promptly furnished in any event within 5 Business Days after the filing thereof with the Internal Revenue Service, copies of each Schedule B (Actuarial Information) to Xxxxxx and Spinco when madethe annual report (Form 5500 Series) with respect to each Benefit Plan, (iv) promptly and in any event within 5 Business Days after Borrower, Parent, any of the Hanover Benefit Plans before the IRS, the United States Department of Labor Borrower’s Subsidiaries or the PBGC any ERISA Affiliate knows or has reason to know that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” required installment within the meaning of Section 401(a) 412 of the Code IRC has received not been made when due with respect to a determination letter Benefit Plan, a statement of an Authorized Person describing the failure to make such installment and (vi) promptly and in any event within 5 Business Days after receipt thereof by Borrower, Parent, any of Borrower’s Subsidiaries or any ERISA Affiliate from a sponsor of a Multiemployer Plan or from the IRS stating that they and PBGC, a copy of each notice received by any such Person concerning the trusts maintained thereunder are exempt from taxation imposition of withdrawal liability under Section 401(a4202 of ERISA or indicating that a Multiemployer Plan may enter reorganization status under Section 4241 of ERISA. Parent shall timely make (or cause to be timely made) each required contribution (other than a de minimis contribution) with respect to each Benefit Plan (including each quarterly contribution required by Section 412 of the CodeIRC at the time specified in such section) and shall provide (or cause to be provided) to Agent promptly and in any event within 5 Business Days of each such contribution, respectively, proof that such contribution was made along with a statement from the Benefit Plan’s actuary indicating that such contribution constitutes full and each trust maintained under any Hanover timely payment of all required contributions then due with respect to such Benefit Plan intended to satisfy the requirements of Section 501(c)(9) and that there are no past-due contributions outstanding for any Benefit Plan. For purposes of the Code foregoing sentence only, a contribution that actually is made within 15 Business Days of when it actually was due shall be considered timely made if (i) the contribution is less than $1,000,000; (ii) the total outstanding past-due contributions with respect to all Benefit Plans (determined without regard to this sentence) do not exceed $1,000,000; and (iii) the PBGC has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or perfected a Lien with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement respect to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverBenefit Plan.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(a5.12(a) of the Hanover Company Disclosure Letter Schedule lists each material “"employee benefit plan” " (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) ), vacation, retention and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, and whether written or oral (i) oral, sponsored, maintained or contributed to or required to be contributed to by Hanover the Company or any of its Subsidiaries Subsidiaries, or to which Hanover the Company or any of its Subsidiaries is a party and (ii) in which for the benefit of any individual Person who is currently or currently, has been or, prior to the Effective Time, is expected to become an officer, director or employee of Hanover the Company or any of its Subsidiaries (a “Hanover "Company Employee”") is a participant (the “Hanover "Company 38 Benefit Plans”"). Neither Hanoverthe Company, any of its Subsidiaries nor any ERISA Affiliate thereof of any of them has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Company Benefit Plan that would affect any Hanover Employee except in the ordinary course of businessCompany Employee. Hanover The Company has heretofore delivered or made available to Xxxxxx Forest and Spinco true and complete copies of each Hanover Company Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual any reports or summaries required to be prepared or filed under ERISA or the Code for the most recent reporting period and the most recent determination letter received from the IRS (if any) with respect to each such plan intended to qualify under Section 401 401(a) of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any No liability under Title IV (including Sections 4069 and 4212(c) of ERISA) or Section 302 of ERISA has been incurred by the Company, any of its Subsidiaries or under Section 412 any ERISA Affiliate of the Code any of them that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected presents a material risk to result in Hanover the Company, any of its Subsidiaries or any ERISA Affiliate of any of them of incurring any such liability, other than liability for premiums due the PBGC (which premiums have been paid when due). No Company Benefit Plan is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code.
(ic) No Hanover Company Benefit Plan is a “"multiemployer pension plan,” " as defined in Section 3(37) of ERISA and (ii) none of Hanoverthe Company, any of its Subsidiaries or any ERISA Affiliate thereof of any of them has made or suffered a “"complete withdrawal” " or a “"partial withdrawal,” " as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result has not been satisfied in a material liability to Hanoverfull.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Each Company Benefit Plan has been operated and administered in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code ERISA and the laws of any applicable foreign jurisdictionCode. Except as would not result in a material liability to Hanover, all All contributions required to be made with respect to any Hanover Company Benefit Plan have been timely made. There are no pending or, to Hanover’s the Company's Knowledge, threatened claims by, on behalf of or against any of the Hanover Company Benefit Plans or any assets thereof, other than routine claims for benefits under such plansbenefit claim matters, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover material liability for the Company or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx Forest and Spinco or will be promptly furnished to Xxxxxx Forest and Spinco when made) with respect to any of the Hanover Company Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverPBGC.
(e) Each Hanover Company Benefit Plan intended to be “"qualified” " within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they is so qualified and the trusts maintained thereunder are exempt from taxation under Section 401(a501(a) of the Code, respectively, and each trust maintained under any Hanover Company Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any either such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Company Benefit Plan or any such trust.
(f) No Hanover Company Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of Company or any Company Subsidiary for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable law, (ii) death benefits under any "pension plan," or (iii) benefits the full cost of which is maintained outside borne by the jurisdiction of current or former employee (or his beneficiary). The Company has the United Statesright, and will have the right after the Effective Time to terminate any Company Benefit Plan or covers to amend any employee residing such Company Benefit Plan to reduce future benefits (including any Company Benefit Plan that provides post-retirement medical and life insurance benefits) without incurring or working outside the United Statesotherwise being responsible for any material liability with respect thereto.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, In connection with the consummation of the transactions contemplated by this Agreement shall not result by itself Agreement, no payment of money or with the passage of time in the payment or other property, acceleration of benefits or provision of other rights has been or will be made hereunder, under any amountagreement contemplated herein, the accrual or acceleration of under any benefit Company Benefit Plan or any increase Contract listed in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law Section 5.15 of the Company Disclosure Schedule that would, individually or in the aggregate, could reasonably be expected to result in a material liability be nondeductible under Section 280G of the Code, whether or not some other subsequent action or event would be required to Hanovercause such payment, acceleration or provision to be triggered.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(a) Holdco has Previously Disclosed or has previously filed as an exhibit to an SEC Document or made available to the Purchasers or its representative each of the Hanover Disclosure Letter lists each material “employee benefit following to which Holdco or any Holdco Subsidiary is a party or subject; any plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, contract or understanding providing for any bonus, incentivepension, option, deferred compensation, stock option (or other equity-based)retirement payment, profit sharing welfare, severance, change in control, welfare (including post-retirement medical and life insurance) and or fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust benefits or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS compensation with respect to any present or former officer, director, employee or consultant of Holdco or any Holdco Subsidiary (each, other than a Multiemployer Plan, a “Benefit Plan”), in each such plan intended to qualify under Section 401 case, requiring aggregate annual payments or contributions by Holdco and any Holdco Subsidiary in an aggregate amount in excess of $1,000,000 or which has aggregate unfunded liabilities in an amount in excess of $1,000,000 individually provided that the aggregate unfunded liabilities of the Code and Benefit Plans not Previously Disclosed or filed as an SEC Document do not exceed $3,000,000. Section 4.13 of the three most recent years (A) Holdco Disclosure Schedule sets forth a complete list of the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsBenefit Plans.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result have a Material Adverse Effect, (A) with respect to each Benefit Plan, Holdco and any Holdco Subsidiary have complied, and are now in compliance with ERISA, the Code and all Laws and regulations applicable to such Benefit Plans and each Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS to the effect that such Benefit Plan is so qualified and exempt from federal income taxes under Sections 401(a) and 501(a) of the Code, and such determination letter has not been revoked and nothing has occurred, whether by action or failure to act, that could reasonably be expected to cause the loss of such qualification; (B) each Benefit Plan has been administered in accordance with its terms including all requirements to make contributions; (C) there is not now, nor do any circumstances exist that are likely to give rise to any requirement for the posting of security with respect to a Benefit Plan or the imposition of any material liability or material lien on the assets of Holdco or any Holdco Subsidiary under ERISA or the Code in respect of any Benefit Plan, and no liability (other than for premiums to Hanover, (ithe Pension Benefit Guaranty Corporation) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section Sections 412 or 4971 of the Code that has not been satisfied or is reasonably expected to be incurred by Holdco or any Holdco Subsidiary; (D) there are no pending or, to Holdco’s knowledge, threatened claims (other than claims for benefits in fullthe ordinary course), lawsuits or arbitrations which have been asserted or instituted against the Benefit Plans or the assets of any of the trusts under any of the Benefit Plans; (E) to Holdco’s knowledge, there are no pending or threatened claims against any fiduciary of any of the Benefit Plans with respect to their duties to the Benefit Plans; (F) to Holdco’s knowledge, no set of circumstances exists which may reasonably give rise to a claim or lawsuit, against the Benefit Plans, any fiduciaries thereof with respect to their duties to the Benefit Plans or the assets of any of the trusts under any of the Benefit Plans; (G) Holdco and each Holdco Subsidiary has reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage, and (ii) there have been no condition exists that would communications to employees or former employees which could reasonably be expected interpreted to result in Hanover incurring promise or guarantee such employees or former employees any such liability.retiree health or life insurance or other retiree death benefits on a permanent basis, other than those retirement benefits provided for under Holdco and any Holdco Subsidiary’s collective bargaining agreement;
(ic) No Hanover Benefit Plan None of Holdco, or any Holdco Subsidiary or any other person or entity under common control with Holdco within the meaning of Section 414(b), (c), (m) or (o) of the Code participates in, or is a required to contribute to, any “multiemployer pension plan,” as defined in (within the meaning of Section 3(37) of ERISA and ERISA) (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to HanoverMultiemployer Plan”).
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each individual who performs services for Holdco or any Holdco Subsidiary (other than through a contract with an entity other than Holdco or any Holdco Subsidiary) and who is not treated as an employee of Holdco or any Holdco Subsidiary has been properly characterized as not being an employee for such purposes.
(e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (alone or in conjunction with any termination of employment or other event) will (A) result in a any material liability payment (including, without limitation, severance or “excess parachute payments” (within the meaning of Section 280G of the Code), or forgiveness of indebtedness) or other material obligation becoming due to Hanoverany current or former employee, each Hanover officer or director of Holdco or any Holdco Subsidiary under any Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable lawor otherwise, including(B) limit or restrict the right of Holdco or any Holdco Subsidiary to merge, but not limited toamend or terminate any of the Benefit Plans, ERISA, or (C) materially increase or accelerate or require the Code and the laws funding of any applicable foreign jurisdiction. benefits otherwise payable under any Benefit Plan.
(f) Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined couldnot, individually or in the aggregate, reasonably be expected to result in have a Material Adverse Effect on Hanover Effect, (A) no work stoppage involving Holdco or any of its Subsidiaries and no matter Holdco Subsidiary is pending or, to the knowledge of Holdco threatened; (other than routine qualification determination filingsB) neither Holdco nor any Holdco Subsidiary is involved in, copies or threatened with or affected by, any labor dispute, arbitration, lawsuit or administrative proceeding that could affect the business of which have been furnished to Xxxxxx Holdco or such Holdco Subsidiary; and Spinco or will be promptly furnished to Xxxxxx (C) employees of Holdco and Spinco when made) Holdco’s Subsidiaries are not represented by any labor union nor are any collective bargaining agreements otherwise in effect with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that wouldsuch employees.
(g) Except as would not, individually or in the aggregate, reasonably be expected to result in have a material liability Material Adverse Effect, with respect to Hanover.
each Foreign Plan, (ei) Each Hanover Benefit each Foreign Plan intended required to be “qualified” within the meaning of Section 401(aregistered has been registered and has been maintained in good standing with applicable regulatory authorities; and (ii) of the Code has received a determination letter from the IRS stating all Foreign Plans that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectivelyrequired to be funded are funded in accordance with applicable Laws, and each trust maintained under any Hanover Benefit Plan intended with respect to satisfy all other Foreign Plans, adequate reserves therefore have been established on the requirements accounting statements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan Holdco or any such trustHoldco Subsidiary.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 1 contract
Samples: Note Purchase Agreement (Moneygram International Inc)
Benefit Plans. (a) Section 5.13(a4.12(a) of the Hanover Spinco Disclosure Letter Schedule lists each material “"employee benefit plan” " (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) ), vacation, retention and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, and whether written or oral (i) oral, sponsored, maintained or contributed to or required to be contributed to by Hanover Forest (to the extent affecting Spinco or the Spinco Business), Spinco or any of their respective Subsidiaries, or to which Forest (to the extent affecting Spinco or the Spinco Business), Spinco or any of their respective Subsidiaries is a party, for the benefit of any Person who is currently, has been or, on or prior to the Effective Time, is expected to become an employee of Spinco or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover "Spinco Employee”") is a participant (the “Hanover "Spinco Benefit Plans”"). Neither HanoverExcept as provided in Section 2.9 or in the Employee Benefits Agreement, neither Spinco, any of its Subsidiaries nor any ERISA Affiliate thereof of any of them has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Spinco Benefit Plan that would affect any Hanover Employee except in the ordinary course of businessSpinco Employee. Hanover Spinco has heretofore delivered or made available to Xxxxxx and Spinco the Company true and complete copies of each Hanover Spinco Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual any reports or summaries required to be prepared or filed under ERISA or the Code for the most recent reporting period and the most recent determination letter received from the IRS (if any) with respect to each such plan intended to qualify under Section 401 401(a) of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any No liability under Title IV (including Sections 4069 and 4212(c) of ERISA) or Section 302 of ERISA has been incurred by Spinco, any of its Subsidiaries or under Section 412 any ERISA Affiliate of the Code any of them that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected presents a material risk to result in Hanover Spinco, any of its Subsidiaries or any ERISA Affiliate of any of them of incurring any such liability, other than liability for premiums due the PBGC (which premiums have been paid when due). Except for the plan established under the Forest Oil Corporation Pension Trust Agreement, no Spinco Benefit Plan is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code.
(ic) No Hanover Spinco Benefit Plan is a “"multiemployer pension plan,” " as defined in Section 3(37) of ERISA ERISA, and (ii) none of HanoverSpinco, any of its Subsidiaries or any ERISA Affiliate thereof of any of them has made or suffered a “"complete withdrawal” " or a “"partial withdrawal,” " as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result has not been satisfied in a material liability to Hanoverfull.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Each Spinco Benefit Plan has been operated and administered in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code including ERISA and the laws of any applicable foreign jurisdictionCode. Except as would not result in a material liability to Hanover, all All contributions required to be made with respect to any Hanover Spinco Benefit Plan have been timely made. There are no pending or, to Hanover’s Spinco's and Forest's Knowledge, threatened claims by, on behalf of or against any of the Hanover Spinco Benefit Plans or any assets thereof, other than routine claims for benefits under such plansbenefit claim matters, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover material liability for Spinco or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco the Company or will be promptly furnished to Xxxxxx and Spinco the Company when made) with respect to any of the Hanover Spinco Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverPBGC.
(e) Each Hanover Spinco Benefit Plan intended to be “"qualified” " within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they is so qualified and the trusts maintained thereunder are exempt from taxation under Section 401(a501(a) of the Code, respectively, and each trust maintained under any Hanover Spinco Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any either such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Spinco Benefit Plan or any such trust.
(f) No Hanover Except for a Spinco Benefit Plan that provides retiree medical benefits, no Spinco Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of Spinco or any Subsidiary of Spinco for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable law, (ii) death benefits under any "pension plan," or (iii) benefits the full cost of which is borne by the current or former employee (or his beneficiary). With respect to any Spinco Benefit Plan maintained outside at the jurisdiction of Effective Time, Spinco will have the United States, right at and after the Effective Time to terminate or covers terminate participation in such Spinco Benefit Plan or to amend such Spinco Benefit Plan to reduce future benefits without incurring or otherwise being responsible for any employee residing or working outside the United Statesmaterial liability with respect thereto.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, In connection with the consummation of the transactions contemplated by this Agreement shall not result by itself Agreement, no payment of money or with the passage of time in the payment or other property, acceleration of benefits or provision of other rights has been or will be made hereunder, under any amountagreement contemplated herein, the accrual or acceleration of under any benefit Spinco Benefit Plan or any increase Contract listed in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law Section 4.15 of the Spinco Disclosure Schedule that would, individually or in the aggregate, could reasonably be expected to result in a material liability be nondeductible under Section 280G of the Code, whether or not some other subsequent action or event would be required to Hanovercause such payment, acceleration or provision to be triggered.
Appears in 1 contract
Benefit Plans. (ai) Section 5.13(a) of the Hanover Disclosure Letter lists each material “All "employee benefit plan” plans" (as defined in Section 3(3) of ERISA), ) and all other material employee benefitcompensation, bonus, incentivepension, profit sharing, deferred compensation, stock option (or other equityownership, stock purchase, stock option, phantom stock, retirement, employment, change-based)in-control, welfare, collective bargaining, severance, change in controldisability, welfare (including post-retirement death benefit, hospitalization and medical and life insurance) and fringe benefit plans, programs and arrangementsagreements, whether arrangements or not subject to ERISA and, whether written or oral (i) sponsored, understandings that are maintained or contributed to (or required to be previously contributed to by Hanover to) for the benefit of any current or former employee, officer or director of JJFMSI or any of its Subsidiaries or and with respect to which Hanover JJFMSI or any of its Subsidiaries is a party and (ii) in which any individual who is currently would reasonably be expected to have direct or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (contingent liability are defined as the “Hanover "JJFMSI Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover ." JJFMSI has heretofore delivered or made available to Xxxxxx Prison Realty, CCA and Spinco PMSI true and complete copies of all JJFMSI Benefit Plans and, with respect to each Hanover JJFMSI Benefit Plan Plan, true and any amendments thereto (or complete copies of the following documents: the most recent actuarial report, if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, any; the most recent annual reports report, if any; any related trust agreement, annuity contract or summaries required to be prepared or filed under ERISA or other funding instrument, if any; the Code most recent determination letter, if any; and the most recent determination letter received from the IRS with respect to each such summary plan intended to qualify under description, if any.
(ii) Except as disclosed in Section 401 3.05(k) of the Code and the three most recent years JJFMSI Disclosure Schedule: (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 none of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover JJFMSI Benefit Plan Plans is a “"multiemployer pension plan,” as defined in " within the meaning of Section 3(37) of ERISA and or is otherwise subject to Title IV of ERISA; (iiB) none of Hanoverthe JJFMSI Benefit Plans promises or provides retiree medical or life insurance benefits to any person; (C) neither JJFMSI nor any of its Subsidiaries has any obligation to adopt or has taken any corporate action to adopt, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover new JJFMSI Benefit Plan or, except as required by law, to amend any existing JJFMSI Benefit Plan; (D) JJFMSI and its Subsidiaries are in compliance in all material respects with and each JJFMSI Benefit Plan is and has been operated and administered in all material respects in accordance compliance with its terms and the applicable law, including, but not limited to, provisions of ERISA, the Code and the laws of all other 57 62 applicable laws, rules and regulations except for any applicable foreign jurisdiction. Except failures to so administer any JJFMSI Benefit Plan as would not result in have a material liability to Hanover, all contributions required to be made with respect to any Hanover adverse effect on JJFMSI; (E) each JJFMSI Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter that is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” qualified within the meaning of Section 401(a) of the Code Code, to JJFMSI's knowledge, has received a determination letter from been determined by the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectivelyto be so qualified, and no circumstances exist that could reasonably be expected to result in the revocation of any such determination; (F) each trust maintained under any Hanover JJFMSI Benefit Plan intended to satisfy provide for the deferral of income, the reduction of salary or other compensation, or to afford other income tax benefits, complies with the requirements of the applicable provisions of the Code or other laws, rules and regulations required to provide such income tax benefits; (G) no prohibited transactions (as defined in Section 501(c)(9406 or 407 of ERISA or Section 4975 of the Code) have occurred for which a statutory exemption is not available with respect to any JJFMSI Benefit Plan, and which could give rise to liability on the part of JJFMSI, any of its Subsidiaries, any JJFMSI Benefit Plan, or any fiduciary, party in interest or disqualified person with respect thereto that would be material to JJFMSI or would be material to JJFMSI if it were its liability; (H) neither JJFMSI nor any entity required to be treated as a single employer with JJFMSI under Section 414 of the Code has satisfied such requirements andany unsatisfied liability under Title IV of ERISA that would have a material adverse effect on JJFMSI; (I) other than funding obligations and benefits claims payable in the ordinary course, in any such caseto JJFMSI's knowledge, no event has occurred and no circumstance exists with respect to any JJFMSI Benefit Plan that could give rise to any liability arising under the Code, ERISA or condition any other applicable law, or under any indemnity agreement to which JJFMSI or any of its Subsidiaries is known a party, excluding liability relating to exist benefit claims and funding obligations payable in the ordinary course, whether directly or by reason of its affiliation with any entity required to be treated as a single employer with JJFMSI under Section 414 of the Code; (J) as of the date hereof there are no pending or, to the knowledge of the executive officers of JJFMSI, threatened investigations, claims or lawsuits in respect of any JJFMSI Benefit Plan that would reasonably have a material adverse effect on JJFMSI; (K) other than continuation coverage required to be expected to adversely affect such tax-qualified status provided under Section 4980B of the Code or Part 6 of Title I of ERISA or otherwise as provided by state law, none of the JJFMSI Benefit Plans that are "welfare plans," within the meaning of Section 3(1) of ERISA, provides for any such Hanover benefits with respect to current or former employees for periods extending beyond their retirement or other termination of service; (L) no amount payable pursuant to a JJFMSI Benefit Plan or any such trust.
other plan, contract or arrangement of JJFMSI would be considered an "excess parachute payment" under Section 280G of the Code; and (fM) No Hanover no JJFMSI Benefit Plan is maintained outside exists that could result in the jurisdiction payment to any current or former employee, officer or director of the United States, JJFMSI any money or covers other property or accelerate or provide any employee residing other rights or working outside the United States.
(g) Except benefits as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation a result of the transactions contemplated by this Agreement shall not result by itself or with which would constitute an excess parachute payment within the passage meaning of time in Section 280G of the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverCode.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(aEach material Benefit Plan is listed in Item 4.13(a) of the Hanover Disclosure Letter lists Company Letter. With respect to each Benefit Plan, the Company has made available to Newco a true and correct copy of (i) each such Benefit Plan that has been reduced to writing and all amendments thereto (or written summaries if not otherwise reduced to writing); (ii) each trust, insurance or administrative agreement relating to each such Benefit Plan; (iii) the most recent summary plan description or other written explanation of each Benefit Plan provided to participants; (iv) the most recent annual report (Form 5500) filed with the IRS; and (v) the most recent determination letter, if any, issued by the IRS with respect to any Benefit Plan intended to be qualified under Section 401(a) of the Code. Except as required by law, neither the Company nor any of its Subsidiaries has adopted or amended in any material respect any Benefit Plan since December 31, 2005, other than the approval by the Company’s Board of Directors and stockholders of the 2006 Stock Incentive Plan.
(b) (i) Each Benefit Plan maintained by the Company or any of its Subsidiaries has been maintained in compliance with its terms and, both as to form and in operation, with the requirements of applicable law, in each case, in all material respects, and (ii) all employer or employee contributions, premiums and expenses to or in respect of each Benefit Plan have, in all material respects, been paid in full or, to the extent not yet due, have been adequately accrued on the applicable financial statements of the Company included in the Company SEC Documents in accordance with GAAP. There is no Person (other than the Company or any of its Subsidiaries) that together with the Company or any of its Subsidiaries would be treated as a single employer under Section 414 of the Code or Section 4001(b) of ERISA. Neither the Company nor any of its Subsidiaries has at any time during the six-year period preceding the date hereof maintained, contributed to or incurred any liability under any “employee benefit multiemployer plan” (as defined in Section 3(33(37) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available is subject to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in fullCode.
(c) As of the date of this Agreement there are no pending, and or, to the Knowledge of the Company, threatened, disputes, arbitrations, claims, suits or grievances involving a Benefit Plan (iiother than routine claims for benefits payable under any such Benefit Plan) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) have a Material Adverse Effect on the Company. No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanoveris, or any ERISA Affiliate thereof within the last three years has made been, the subject of a material examination or suffered audit by a “complete withdrawal” Governmental Entity or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result participant in a material liability to HanoverGovernmental Entity-sponsored voluntary compliance, amnesty or similar program.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover All Benefit Plan has been operated and administered in all respects in accordance with its Plans that are intended by their terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits qualified under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from have been determined by the IRS stating that they and to be so qualified, or a timely application for such determination is now pending and, the trusts maintained thereunder are exempt from taxation under Section 401(a) Company has no Knowledge of any reason why any such Benefit Plan is not so qualified in operation. Neither the Code, respectively, and each trust maintained Company nor any of its Subsidiaries has any material liability or obligation under any Hanover Benefit Plan intended welfare plan or agreement to satisfy the requirements provide benefits after termination of employment to any employee or dependent other than as required by Section 501(c)(9) 4980B of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan the terms of a separation or any such trustretention plan or agreement.
(fe) No Hanover Benefit Plan is maintained outside Neither the jurisdiction execution and delivery of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, by the Company nor the consummation of the transactions contemplated by this Agreement shall not result by itself hereby will or may (either alone or in connection with the passage occurrence of time any additional or subsequent events) result in the payment acceleration or acceleration creation of any amount, the accrual or acceleration rights of any benefit person to compensation or benefits under any increase Benefit Plan or other compensatory arrangement, loan forgiveness or result in any vested interest or entitlement an obligation to fund benefits with respect to any benefit Benefit Plan or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverother compensatory arrangement.
Appears in 1 contract
Samples: Merger Agreement (West Corp)
Benefit Plans. (a) Section 5.13(a5.12(a) of the Hanover Quaker State Disclosure Letter Schedule lists each material “"employee benefit plan” " (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, and whether written or oral (i) oral, sponsored, maintained or contributed to or required to be contributed to by Hanover Quaker State or any of its Subsidiaries or Subsidiaries, to which Hanover Quaker State or any of its Subsidiaries is a party and (ii) or in which any individual person who is currently or currently, has been or, prior to the Effective Time, is expected to become an officer, director or employee of Hanover Quaker State (a “Hanover "Quaker State Employee”") is a participant (the “Hanover "Quaker State Benefit Plans”"). Neither HanoverQuaker State, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Quaker State Benefit Plan that would affect any Hanover Employee except in the ordinary course of businessQuaker State Employee. Hanover Quaker State has heretofore delivered or made available to Xxxxxx Pennzoil and Spinco PPC true and complete copies of each Hanover Quaker State Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual any reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsCode.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any No liability under Title IV (including, without limitation, Sections 4069 and 4212(c) of ERISA) or Section 302 of ERISA has been incurred by Quaker State or under Section 412 of the Code any ERISA Affiliate thereof that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected presents a material risk to result in Hanover Quaker State, any of its Subsidiaries or any ERISA Affiliate thereof of incurring any such liability, other than liability for premiums due the PBGC (which premiums have been paid when due). Except as set forth on Section 5.12(b) of the Quaker State Disclosure Schedule, the present value of accrued benefits under each Quaker State Benefit Plan that is subject to Title IV of ERISA, determined based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such plan's actuary with respect to such plan, did not exceed, as of its latest valuation date, the then current value of the assets of such plan allocable to such accrued benefits.
(c) Except as set forth on Section 5.12(c) of the Quaker State Disclosure Schedule, (i) No Hanover no Quaker State Benefit Plan is a “"multiemployer pension plan,” , " as defined in Section 3(37) of ERISA and (ii) none of HanoverQuaker State, any of its Subsidiaries or any ERISA Affiliate thereof has made or suffered a “"complete withdrawal” " or a “"partial withdrawal,” " as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result has not been satisfied in a material liability to Hanoverfull.
(d) Except as would not, individually or set forth in Section 5.12(d) of the aggregate, reasonably be expected to result in a material liability to HanoverQuaker State Disclosure Schedule, each Hanover Quaker State Benefit Plan has been operated and administered in all material respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code ERISA and the laws of any applicable foreign jurisdictionCode. Except as would not result in a material liability to Hanover, all All contributions required to be made with respect to any Hanover Quaker State Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledgethe knowledge of Quaker State, threatened claims by, on behalf of or against any of the Hanover Quaker State Benefit Plans or any assets thereof, other than routine claims for benefits under such plansbenefit claim matters, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover material liability for Quaker State or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx the Pennzoil and Spinco PPC or will be promptly furnished to Xxxxxx the Pennzoil and Spinco PPC when made) with respect to any of the Hanover Quaker State Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverPBGC.
(e) Each Hanover Quaker State Benefit Plan intended to be “"qualified” " within the meaning of Section 401(a401 (a) of the Code has received a determination letter from the IRS stating that they is so qualified and the trusts maintained thereunder are exempt from taxation under Section 401(a501(a) of the Code, respectively, and each trust maintained under any Hanover Quaker State Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any either such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Quaker State Benefit Plan or any such trust.
(f) No Hanover Except as set forth in Section 5.12(f) of the Quaker State Disclosure Schedule, no Quaker State Benefit Plan provides medical, surgical, hospitalization, death or similar benefits (whether or not insured) for employees or former employees of Quaker State or any Quaker State Subsidiary for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable law, (ii) death benefits under any "pension plan," or (iii) benefits the full cost of which is maintained outside borne by the jurisdiction of current or former employee (or his beneficiary). Quaker State has the United Statesright, and will have the right after the Effective Time to terminate any Quaker State Plan or covers to amend any employee residing such Quaker State Plan to reduce future benefits, (including, without limitation, any Quaker State Plan that provides post-retirement medical and life insurance benefits) without incurring or working outside the United Statesotherwise being responsible for any material liability with respect thereto.
(g) Except as otherwise provided Quaker State's defined benefit pension plans listed in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation Section 5.12(g) of the transactions contemplated by this Agreement shall Quaker State Disclosure Schedule have been amended to eliminate any provisions that relate to a change in control of Quaker State. Quaker State's Rabbi Trust listed in Schedule 5.12(g) of the Quaker State Disclosure Schedule will require the provision of a letter of credit in connection with a change in control of Quaker State in an amount not result by itself or with to exceed the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoveramount set forth on Schedule 5.12(g).
Appears in 1 contract
Samples: Merger Agreement (Pennzoil Co /De/)
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredWith respect to each Benefit Plan with or for the benefit of any current or former employee, maintained officer or contributed to or required to be contributed to by Hanover director of IDEC or any of its Subsidiaries or ERISA Affiliates (the “IDEC Benefit Plans”), no event has occurred and there exists no condition or set of circumstances, which could reasonably be likely to have a Material Adverse Effect on IDEC under ERISA, the Code or any other Applicable Law.
(ii) Each IDEC Benefit Plan has been, in all material respects, administered and operated in accordance with its terms, with the applicable provisions of ERISA, the Code and other Applicable Law and the terms of all applicable collective bargaining agreements. Each IDEC Benefit Plan, including any material amendments thereto, that is capable of Approval has received such Approval (or there remains a period of time in which to obtain such Approval retroactive to the date of any material amendment that has not previously received such Approval) and no event has occurred which would be reasonably likely to result in the revocation of such Approval or the imposition of material sanctions by such authorities.
(iii) To the Knowledge of IDEC, no oral or written representation or commitment with respect to any material aspect of any IDEC Benefit Plan has been made to an employee or former employee of IDEC or any of its Subsidiaries by an authorized IDEC employee that is not materially in accordance with the written or otherwise preexisting terms and provisions of such IDEC Benefit Plans. To the Knowledge of IDEC, neither IDEC nor any of its Subsidiaries has entered into any agreement, arrangement or understanding, whether written or oral, with any trade union, works council or other employee representative body or any material number or category of its employees which would prevent, restrict or materially impede the implementation of any lay-off, redundancy, severance or similar program within its or their respective workforces (or any part of them).
(iv) There are no material unresolved claims or disputes under the terms of, or in connection with, any IDEC Benefit Plan (other than routine undisputed claims for benefits), and no action, legal or otherwise, has been commenced or threatened with respect to any material claim or otherwise in connection with an IDEC Benefit Plan.
(v) With respect to each Funded Retirement Plan of IDEC or its Subsidiaries, the aggregate value of the assets of such Funded Retirement Plan is equal to or greater than the aggregate value of its liabilities assessed on an ongoing and terminated basis and calculated in accordance with the actuarial methods and assumptions used in such valuation pursuant to such Funded Retirement Plan and Applicable Law and GAAP. None of IDEC or any ERISA Affiliate of IDEC has incurred any liability to a Funded Retirement Plan under Title IV of ERISA (other than for contributions not yet due) or to the Pension Benefit Guaranty Corporation (other than for payment of premiums not yet due) that, when aggregated with other such liabilities, would result in a material liability of IDEC and its Subsidiaries taken as a whole, which liability has not been fully paid.
(vi) At no time has IDEC or any ERISA Affiliate of IDEC participated in and/or been obligated to contribute to any Benefit Plan that is a “multiemployer plan” within the meaning of Section 3(37) of ERISA.
(vii) No IDEC Benefit Plan provides health benefits (whether or not insured), with respect to employees or former employees of IDEC or any Subsidiary of IDEC after retirement or other termination of service (other than coverage mandated by Applicable Law or benefits, the full cost of which is borne by the employee or former employee).
(viii) Neither the negotiation and execution of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or upon the occurrence of any additional or subsequent events) constitute an event under any IDEC Benefit Plan that will or may result in any payment (whether of severance pay or otherwise), acceleration of payment, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any employee or former employee of IDEC or any Subsidiary of IDEC. There is no contract, agreement, plan or arrangement with an employee or former employee of IDEC to which Hanover IDEC or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 as of the Code and the three most recent years (A) the Form 5500s and attached Schedulesdate of this Agreement, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would notthat, individually or in the aggregate, reasonably be expected to collectively and as a result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in fulltransaction contemplated hereby (whether alone or upon the occurrence of any additional or subsequent events) or otherwise, and (ii) no condition exists that would reasonably be expected likely to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, give rise to the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws payment of any applicable foreign jurisdiction. Except as amount that would not result in a material liability be deductible pursuant to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of Sections 280G or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a162(m) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 1 contract
Samples: Merger Agreement (Biogen Inc)
Benefit Plans. (a) Section 5.13(a3.10(a) of the Hanover Company Disclosure ------------- Letter lists contains a list of all Benefit Plans and employment, consulting, severance or termination agreements between the Company or any of its Subsidiaries and any Employee (a "Benefit Agreement"). Neither the Company nor ------------------ any of its Subsidiaries has adopted or amended in any material respect any Benefit Plan since the date of the most recent audited financial statements included in the Company SEC Reports filed prior to the date hereof.
(b) With respect to each material “employee benefit plan” (Benefit Plan and Benefit Agreement, the Company has made available to Parent true, complete and correct copies, where applicable and to the extent that they exist as defined in Section 3(3) of ERISA)the date of this Agreement, and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral of (i) sponsoredthe current plan document or agreement, maintained (ii) the two most recent annual reports on Form 5500 filed with the Internal Revenue Service, (iii) the two most recent actuarial reports, (iv) the most recent summary plan description, (v) the most recent determination letter issued by the Internal Revenue Service, and (vi) the two most recent audited financial reports concerning such Benefit Plans or contributed to or required to be contributed to by Hanover Agreements, and any trusts related thereto.
(c) None of the Company, any of its Subsidiaries, any officer of the Company or any of its Subsidiaries or any of the ERISA Benefit Plans or Benefit Agreements has on or before the date of this Agreement engaged in a "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to which Hanover any ERISA Benefit Plan or Benefit Agreement that could reasonably be expected to subject the Company, any of its Subsidiaries or any officer of the Company or any of its Subsidiaries to any tax on prohibited transactions imposed by Section 4975 of the Code or to any liability under ERISA. None of the Company, its Subsidiaries or any ERISA Affiliate has at any time during the five-year period preceding the date hereof contributed to any ERISA Benefit Plan that is a party "multiemployer plan" (as defined in Section 3(37) of ERISA) or maintained any ERISA Benefit Plan that is subject to Title IV of ERISA or Section 412 of the Code.
(d) As of the date of this Agreement there is no pending dispute, arbitration, claim, suit or grievance involving a Benefit Plan or Benefit Agreement (other than routine claims for benefits payable under any such Benefit Plan) that would have a Company Material Adverse Effect.
(e) Each Benefit Plan and (ii) in which any individual who is currently or Benefit Agreement has been an officerestablished and maintained in all material respects in accordance with its terms and in compliance with all applicable laws, director or employee statutes, orders, rules and regulations, including without limiting the foregoing, the timely filing of Hanover all required reports, documents and notices.
(a “Hanover Employee”f) is a participant (Neither the “Hanover Benefit Plans”). Neither HanoverCompany, any of its Subsidiaries nor any ERISA Affiliate thereof (i) maintains or contributes to any Benefit Plan which provides, or has any commitment or formal planliability to provide, whether legally binding or notlife insurance, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written planmedical, a description thereof), any related trust severance or other funding vehicleemployee welfare benefits to any Employee upon or after his retirement or termination of employment, the most recent annual reports or summaries except as may be required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under by Section 401 4980B of the Code and or Title I, subtitle B, part 6 of ERISA; or (ii) has ever represented, promised or contracted (whether in oral or written form) to any Employee (either individually or to Employees as a group) that such Employee(s) would be provided with life insurance, medical, severance or other employee welfare benefits upon or after their retirement or termination of employment, except to the three most recent years (A) extent required by Section 4980B of the Form 5500s and attached SchedulesCode or Title I, (subtitle B) audited financial statements and (C) actuarial valuation reports, part 6 of ERISA.
(bg) Except as would notThe execution of, individually and performance of the transactions contemplated in, this Agreement will not (either alone or in upon the aggregate, reasonably be expected to result in a material liability to Hanover, occurrence of any additional or subsequent events) (i) neither Hanover nor constitute an event under any of its ERISA Affiliates has incurred any liability under Title IV Benefit Plan, Benefit Agreement, trust or Section 302 of ERISA loan that will or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to may result in Hanover incurring any such liability.
payment (i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined whether of severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in Section 3(37) of ERISA and (ii) none of Hanover, benefits or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected obligation to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made fund benefits with respect to any Hanover Employee, or (ii) result in the triggering or imposition of any restrictions or limitations on the right of the Company or Parent to amend or terminate any Benefit Plan have been timely madeand Benefit Agreement. There are no pending or, No payment or benefit agreed to Hanover’s Knowledge, threatened claims by, on behalf of or against any of by the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover Company or any of its Subsidiaries and no matter is pending (other than routine qualification determination filingswhich will or may be made by the Company, copies any of which have been furnished to Xxxxxx and Spinco its Subsidiaries, Parent or will be promptly furnished to Xxxxxx and Spinco when made) any of their respective affiliates with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor Employee may or the PBGC that would, individually or in the aggregate, reasonably will be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” characterized as an "excess parachute payment," within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a280G(b)(1) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(fh) No Hanover Benefit Plan The Company and each of its Subsidiaries (i) has withheld all material amounts required by law or by agreement to be withheld from the wages, salaries and other payments to Employees; (ii) is maintained outside the jurisdiction not liable for any material arrears of wages or any Taxes or any penalty for failure to comply with any of the United States, or covers foregoing; and (iii) is not liable for any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the material payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit trust or payment by other fund or to any employeegovernmental or administrative authority, officer with respect to unemployment compensation benefits, social security or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverother benefits for Employees.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(aSchedule 4.19(a) lists all Benefit Plans. Neither Vendell nor any of the Hanover Disclosure Letter lists each material “employee benefit plan” Vendell Subsidiaries or any entity aggregated therewith under Code Section 414(b) or 414(c) has had an "obligation to contribute" (as defined in ERISA Section 3(34212) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option to a "multiemployer plan" (or other equity-based), severance, change as defined in control, welfare (including post-retirement medical and life insuranceERISA Sections 400 1(a)(3) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral 3(37)(A)) (i) sponsored, maintained or contributed to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”"Multiemployer Plan"). Neither HanoverVendell nor any of the Vendell Subsidiaries has incurred, nor is reasonably expected to incur prior to the Closing Date, any liability under Title I or Title IV of ERISA or under Code Section 412 other than routine funding obligations and routine claims for benefits. Except as set forth on Schedule 4.19(a), all Liabilities arising out of or related to Benefit Plans and ERISA Plans of Vendell and of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except Affiliates are reflected in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS Financial Statements in accordance with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsGAAP.
(b) Except True, correct and complete copies of all written Benefit Plans, as would notcurrently in effect (or as otherwise requested by CCS), individually listed on Schedule 4.19(a) and all trust agreements or in the aggregateother funding arrangements, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanoverincluding insurance contracts, all contributions required to be made amendments thereto and, where applicable, with respect to any Hanover Benefit Plan have been timely made. There are no pending orsuch plans or plan amendments, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification most recent determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before letters issued by the IRS, the United States Department of Labor annual reports or returns, audited or unaudited financial statements, actuarial valuations, and summary annual reports for the PBGC that wouldmost recent three plan years, individually the most recent summary plan descriptions and any material modifications thereto have been provided or in the aggregate, reasonably be expected made available to result in a material liability to HanoverCCS.
(ec) Each Hanover Except as listed on Schedule 4.19(c), all the Benefit Plan Plans and the related trusts subject to ERISA comply with and have been administered in material compliance with, the provisions of ERISA, all provisions of the Code relating to qualification and tax exemption under Code Section 401(a) and 501(a) or otherwise applicable to secure intended tax consequences, and all other applicable laws, rules and regulations and collective bargaining agreements. Except as listed on Schedule 4.19(c), all material governmental approvals for the Benefit Plans have been obtained, timely determination letters have been obtained or sought on a timely basis on the qualification of any ERISA Plans intended to be “qualified” within the meaning of qualify under Section 401(a) of the Code and on the tax exemption of related trusts, and no such governmental approvals have been revoked. Neither Seller nor, to Seller's knowledge, any administrator or fiduciary of any such Benefit Plan (or agent of any of the foregoing) has received engaged in any transaction or acted or failed to act in any manner which could subject any such entity to any material liability (by indemnity or otherwise) for a determination letter from breach of any fiduciary, co-fiduciary or other duty under ERISA. Except as set forth on Schedule 4.19(c), no oral or written representation or communication with respect to any material aspect of the IRS stating Benefit Plans has been made to employees of Seller or any of its predecessors prior to or on the Closing Date that they is not in accordance with the written terms and provisions of such Benefit Plans in effect immediately prior to the trusts maintained thereunder Closing Date. To Seller's knowledge, there are exempt from taxation no unresolved claims or disputes (other than routine claims for benefits) under the terms of, or in connection with, the Benefit Plans, and to Seller's knowledge, no action, legal or otherwise, has been commenced with respect to any claim.
(d) To Seller's knowledge, all annual reports or returns, audited or unaudited financial statements, actuarial valuations, summary annual reports and summary plan descriptions issued with respect to the Benefit Plans are correct and accurate in all material respects.
(e) To Seller's knowledge, since January 1, 1995, no "party in interest" (as defined in Section 401(a3(14) of ERISA) or "disqualified person" (as defined in Section 4975(e)(2) of the Code, respectively, and each trust maintained under ) of any Hanover Benefit ERISA Plan intended to satisfy has engaged in any "prohibited transaction" (within the requirements meaning of Section 501(c)(94975(c) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist Section 406 of ERISA) that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trustcould have a Material Adverse effect on Seller.
(f) No Hanover To Seller's knowledge, no Liability exists, and no event that could result in a Liability has occurred, with respect to any Benefit Plan is maintained outside that individually or in the jurisdiction aggregate could have a Material Adverse effect on Vendell or any of the United States, or covers any employee residing or working outside the United StatesVendell Subsidiaries.
(g) Except as otherwise provided set forth on Schedule 4.19(g), neither Vendell nor any of the Vendell Subsidiaries has maintained, or currently maintains, a Benefit Plan providing welfare benefits (as defined in ERISA Section 3(I)) to employees after retirement or contemplated by this Agreement or any Executed Transaction Agreementother separation of service except to the extent required under Part 6 of Title I of ERISA and Code Section 4980B(f).
(h) Except as set forth on Schedule 4.19(h), the consummation of the transactions contemplated by this Agreement shall will not result by itself entitle any current or former employee of either Vendell or any of the Vendell Subsidiaries to severance pay or any similar payment, and will not accelerate the time of payment or vesting, or increase the amount, of compensation due any such employee or former employee.
(i) To Seller's knowledge, all Benefit Plans subject to Section 4980B of the Code or Part 6 of Title I of ERISA, or both, have been maintained in material compliance with the passage requirements of time in the payment such laws and any regulations (proposed or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverotherwise) issued thereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Childrens Comprehensive Services Inc)
Benefit Plans. (a) Section 5.13(a5.17(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (as defined in Section 3(3) Benefit Plan. Seller has provided or made available to Purchaser a true and correct copy of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option each such Benefit Plan (or other equity-baseda summary of the material terms of each such Benefit Plan).
(b) Except where it would not be expected to result in any Liability to Purchaser or its Affiliates, severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsoredeach Benefit Plan is, and has been, established, maintained or contributed to or required to be contributed to by Hanover or any of and operated in material compliance with applicable Laws and with its Subsidiaries or to which Hanover or any of its Subsidiaries is a party terms, and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover no Action (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except other than claims for benefits in the ordinary course of business. Hanover has heretofore delivered or made available ) is pending or, to Xxxxxx and Spinco true and complete copies the Knowledge of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written planSeller, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made threatened with respect to any Hanover material Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverPlan.
(ec) Each Hanover Benefit Plan that is intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the IRS stating or is entitled rely on an opinion or advisory letter from the IRS, as to its qualification under the Code, and to the Knowledge of Seller, no event or omission has occurred that they and would cause any Benefit Plan to lose such qualification or require corrective action to the trusts maintained thereunder are exempt from taxation under IRS or Employee Plans Compliance Resolution System to maintain such qualification.
(d) Neither Seller nor any ERISA Affiliate has ever maintained, contributed to, or been required to contribute to (i) any employee benefit plan that is or was subject to Title IV of ERISA, Section 401(a) 412 of the Code, respectively, Section 302 of ERISA or (ii) a Multiemployer Plan and each trust maintained neither the Seller nor any ERISA Affiliate has ever incurred any liability under any Hanover Benefit Plan intended to satisfy the requirements Title IV of Section 501(c)(9ERISA that has not been paid in full.
(e) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that Except where it would reasonably not be expected to adversely affect such tax-qualified status for result in any such Hanover Benefit Plan Liability to Purchaser or its Affiliates, neither Seller nor any of its Affiliates provides or has any obligation to provide health or welfare benefits or any such trustother non-pension benefits to any Facility Employees after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of ERISA or similar state law).
(f) No Hanover Benefit Plan is maintained outside subject to the laws of any jurisdiction of the United States, or covers any employee residing or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall where it would not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in any Liability to Purchaser or its Affiliates, each Benefit Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material liability respects in operational and documentary compliance with Section 409A of the Code and applicable guidance thereunder. No payment to Hanoverbe made under any Benefit Plan is, or to the Knowledge of Seller, will be, subject to the penalties of Section 409A(a)(1) of the Code that would result in any Liability to Purchaser or its Affiliates.
(h) Neither the execution and delivery of this Agreement nor the consummation of the Transactions could (either alone or in conjunction with any other event) (i) result in, or cause the accelerated vesting payment, funding or delivery of, or increase the amount or value of, any payment or benefit to any Facility Employee or Facility Contractor; (ii) result in any “excess parachute payment” as defined in Section 280G of the Code; or (iii) result in a requirement to pay any tax “gross-up” or similar “make-whole” payments to any Facility Employee or Facility Contractor.
(i) None of the Benefit Plans, nor any Liability of any kind thereunder or with respect thereto, will be required by operation of Law or otherwise (except as expressly provided herein or in any of the Ancillary Agreements) to be transferred to Purchaser and/or its Affiliates as a result of the Transactions.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(a4.10(a) of the Hanover Star Disclosure Letter lists contains a true, complete and correct list of each material “employee benefit plan” (as defined in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) Benefit Plan sponsored, maintained or contributed to or required to be contributed to by Hanover Star or any of its Subsidiaries Subsidiaries, or to which Hanover Star or any of its Subsidiaries is obligated to sponsor, maintain or contribute to or under or with respect to which Star or any of its Subsidiaries has or could reasonably be expected to have any current or contingent liability or obligation, other than any plan or program maintained by a party and (ii) in Governmental Entity to which any individual who Star or its Subsidiaries is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant required to contribute to pursuant to applicable Law (the “Hanover Star Benefit Plans”). Neither HanoverNo Star Benefit Plan is established or maintained outside of the United States or for the benefit of current or former directors, officers, employees or other service providers of Star or any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 residing outside of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reportsUnited States.
(b) Star has made available to Safe prior to the date of this Agreement a true, correct and complete copy of each Star Benefit Plan currently in effect and, with respect thereto, if applicable, (i) all amendments, the current trust (or other funding vehicle) agreements, and the most recent summary plan descriptions, (ii) the most recent annual report (Form 5500 series including, where applicable, all schedules and actuarial and accountants’ reports) filed with the Department of Labor and the most recent actuarial report or other financial statement relating to such Star Benefit Plan, (iii) the most recent determination, opinion or advisory letter from the IRS (if applicable) for such Star Benefit Plan and (iv) any non-routine correspondence with a Governmental Entity regarding any Star Benefit Plan.
(c) Except as has not had and would notnot reasonably be expected to have, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverStar Material Adverse Effect, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Star Benefit Plan has been operated established, maintained, funded and administered in all respects in accordance with its terms and in compliance with applicable lawLaw, including, but not limited to, ERISA, ERISA and the Code and in each case the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanoverregulations thereunder, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when madeii) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover each Star Benefit Plan intended to be “qualified” within the meaning of qualified under Section 401(a) of the Code has received a favorable determination letter or may rely upon a favorable opinion or advisory letter from the IRS stating as to its qualification, and there are no existing circumstances or any events that they and have occurred that could reasonably be expected to adversely affect the trusts maintained thereunder are exempt from taxation under qualified status of any such plan, (iii) none of Star, any of its Subsidiaries or, to the knowledge of Star, any other Person has engaged in a transaction that has resulted in, or would reasonably be expected to result in, the assessment of a civil penalty upon Star or any of its Subsidiaries pursuant to Section 401(a409 or Section 502(i) of ERISA or a tax imposed pursuant to Section 4975 of the Code, respectively(iv) there does not now exist, and each trust maintained under nor, to the knowledge of Star, do any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to circumstances exist that would reasonably be expected to adversely affect such tax-qualified status for result in, any such Hanover Controlled Group Liability that would be a liability (contingent or otherwise) of Star, any of its Subsidiaries or any of their respective ERISA Affiliates, (v) all contributions or other payments required to be made by or with respect to each Star Benefit Plan (including all contributions, insurance premiums or intercompany charges) with respect to all prior periods have been timely made or paid by Star or its Subsidiaries in accordance with the provisions of each of the Star Benefit Plans and applicable Law or, to the extent not required to be made or paid on or before the date hereof, have been reflected on the books and records of Star in accordance with GAAP and (vi) there are no pending or, to the knowledge of Star, threatened Actions by or on behalf of any Star Benefit Plan, by any employee or beneficiary covered under any Star Benefit Plan or otherwise involving any Star Benefit Plan or any trusts related thereto (other than routine claims for benefits). Neither Star nor any of its Subsidiaries has incurred (whether or not assessed) any Tax or penalty under Section 4980B, 4980D, 4980H, 6721 or 6722 of the Code, and no circumstances exist or events have occurred that could reasonably be expected to result in the imposition of any such trustTaxes or penalties.
(d) None of Star, any of its Subsidiaries or any of their respective ERISA Affiliates, sponsors, maintains, contributes to, or participates in, or has any current or contingent obligation or liability in connection with: (i) a plan that is or was subject to Title IV or Section 302 of ERISA or Section 412 or Section 430 of the Code, (ii) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA), (iii) a “multiple employer plan” (as defined in Section 210 of ERISA or Section 413(c) of the Code), (iv) a “multiemployer plan” (as defined in Section 3(37) of ERISA), or (v) any plan, program or arrangement which provides for retiree, post-employment or post-retirement medical or welfare benefits for retired or former employees or beneficiaries or dependents thereof or any other Person, except pursuant to Section 4980B of the Code or other applicable Law for which the recipient pays the full cost.
(e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby (either alone or in conjunction with any other event) will (i) result in any payment (including severance, “excess parachute payment” (within the meaning of Section 280G of the Code), forgiveness of Indebtedness or otherwise) becoming due to any current or former director, employee or other service provider of Star or any of its Subsidiaries under any Star Benefit Plan, (ii) increase any benefits otherwise payable or trigger any other obligation under any Star Benefit Plan, or (iii) result in any acceleration of the time of payment, funding or vesting of any such benefits.
(f) No Hanover Star Benefit Plan is maintained outside provides for the jurisdiction gross-up or reimbursement of Taxes under Section 409A or Section 4999 of the United States, Code or covers any employee residing or working outside the United Statesotherwise.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 1 contract
Samples: Merger Agreement (Istar Inc.)
Benefit Plans. (ai) Section 5.13(a) of the Hanover Disclosure Letter lists With respect to each material “employee benefit plan (including, without limitation, any "employee benefit plan” (", as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), including, without limitation, multiemployer plans within the meaning of ERISA Section 3(37)) and all other material employee stock purchase, stock option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, stock option (or compensation and other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe employee benefit plans, programs and agreements, programs, policies or other arrangements, whether or not subject to ERISA andERISA, whether written formal or informal, oral or written, legally binding or not, under which any employee or former employee of Morgxx xx any of its Subsidiaries has any present or future right to benefits (i) sponsoredall the foregoing being herein called "Benefit Plans"), maintained or contributed to by Morgxx xx Morgxx Xxxk or required any of their Subsidiaries or under which Morgxx, Xxxxxx Xxxk or any of their Subsidiaries has any present or future liability (the "Morgxx Xxxefit Plans"), Morgxx xxx made available, or within 30 days after the execution hereof will make available, to be contributed Chase a true and correct copy of (A) the most recent annual report (Form 5500) filed with the IRS, (B) such Morgxx Xxxefit Plan, (C) each trust agreement relating to by Hanover such Morgxx Xxxefit Plan, (D) the most recent summary plan
(ii) With respect to the Morgxx Xxxefit Plans, individually and in the aggregate, no event has occurred and, to the knowledge of Morgxx, xxere exists no condition or set of circumstances, in connection with which Morgxx xx any of its Subsidiaries or could be subject to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies of each Hanover Benefit Plan and any amendments thereto (or if the plan is not a written plan, a description thereof), any related trust or other funding vehicle, the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code and the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in have a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, adverse effect on Morgxx xxxer ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover Benefit Plan have been timely made. There are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Hanover or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanoverapplicable law.
(eiii) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) True and complete copies of the Code has received a determination letter from Morgxx Xxxck Plans as in effect on the IRS stating that they and date hereof have been, or within 30 days after the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Codeexecution hereof will be, respectively, and each trust maintained under any Hanover Benefit Plan intended provided or made available to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trustChase.
(f) No Hanover Benefit Plan is maintained outside the jurisdiction of the United States, or covers any employee residing or working outside the United States.
(giv) Except as otherwise provided set forth in the Morgxx Xxxclosure Schedule, no Morgxx Xxxefit Plan or contemplated by this Agreement Morgxx Xxxck Plan exists that could result in the payment to any present or former employee of Morgxx xx any Executed Transaction Agreement, the consummation Subsidiary of Morgxx xx any money or other property or accelerate or provide any other rights or benefits to any present or former employee of Morgxx xx any Subsidiary of Morgxx xx a result of the transactions contemplated by this Agreement shall Agreement, whether or not result by itself or with such payment would constitute a parachute payment within the passage meaning of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.Code Section 280G.
Appears in 1 contract
Benefit Plans. (ai) Section 5.13(aSet forth on Schedule 5.2(s)(i) of the Hanover SmartFinancial Disclosure Letter lists each material Memorandum is a true, correct, and complete list of all pension, retirement, stock option, stock purchase, stock ownership, savings, stock appreciation right, profit sharing, deferred compensation, consulting, bonus, group insurance, severance, change of control, fringe benefit, incentive, cafeteria or Code Section 125, welfare, and other benefit plans, contracts, agreements, and arrangements, including without limitation “employee benefit planplans” (as defined in Section 3(3) of ERISA), incentive and welfare policies, contracts, plans, and arrangements, including split dollar life insurance arrangements, and all other material employee benefittrust agreements and funding arrangements related thereto, bonuswhich are or have been maintained by, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral (i) sponsored, maintained or contributed to (or required to be contributed to), or sponsored by SmartFinancial or SmartBank or an ERISA Affiliate with respect to by Hanover any present or former directors, officers, or employees of SmartFinancial or SmartBank or any of its their Subsidiaries or (herein referred to which Hanover or any of its Subsidiaries is a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (collectively as the “Hanover SmartFinancial Benefit Plans”). Neither Hanover, including any and all plans or policies offered to employees of SmartFinancial or SmartBank, or any of its Subsidiaries nor any their Subsidiaries, with respect to which SmartFinancial or SmartBank or an ERISA Affiliate thereof has claimed or is claiming the safe harbor for “voluntary plans” under ERISA for group and group-type insurance arrangements (“SmartFinancial Voluntary Plans”). The SmartFinancial Parties have previously delivered or made available to the Cornerstone Parties true, correct, and complete copies of all plans, contracts, agreements, arrangements, and other documents referenced in Schedule 5.2(s)(i) of the SmartFinancial Disclosure Memorandum, along with, where applicable, copies of the IRS Form 5500 for the most recently completed year. There has been no announcement or commitment by SmartFinancial or SmartBank, or any commitment or formal plan, whether legally binding or notof their Subsidiaries, to create any additional employee benefit plan SmartFinancial Benefit Plan, to amend any SmartFinancial Benefit Plan (except for amendments required by applicable Law which do not materially increase the cost of such SmartFinancial Benefit Plan), or modify or change to terminate any existing Hanover SmartFinancial Benefit Plan. Each SmartFinancial Benefit Plan that would affect provides for the payment of “deferred compensation,” including any Hanover Employee except employment agreement between SmartFinancial or SmartBank, or any of their Subsidiaries, and any employee, complies in all material respects with Section 409A of the ordinary course Code.
(ii) There is no pending, threatened, or suspected claim, litigation, action, administrative action, suit, audit, arbitration, mediation, or other proceeding relating to any SmartFinancial Benefit Plan. All of businessthe SmartFinancial Benefit Plans comply in all material respects with applicable requirements of ERISA and the Code and other applicable Laws (including without limitation the portability, privacy, and security provisions of the Health Insurance Portability and Accountability Act of 1996; the Patient Protection and Affordable Care Act of 2009; the coverage continuation requirements of Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985; the Family and Medical Leave Act; the Mental Health Parity Act of 1996; the Mental Health Parity and Addiction Equity Act of 2008; the Uniformed Services Employment and Reemployment Rights Act; the Newborns’ and Mothers’ Health Protection Act of 1996; the Women’s Health and Cancer Rights Act; and the Genetic Information Nondiscrimination Act of 2008), and have been established, maintained, and administered in compliance, in all material respects, with all applicable requirements of ERISA and the Code and other applicable Laws and the terms and provisions of all documents, contracts, or agreements establishing the SmartFinancial Benefit Plans or pursuant to which they are maintained or administered. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies No audit of each Hanover any SmartFinancial Benefit Plan and by the IRS or the United States Department of Labor is ongoing or threatened or was ongoing, threatened, or closed since June 30, 2011. There has occurred no “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any amendments thereto SmartFinancial Benefit Plan that is likely to result in, or has already resulted in, the imposition of any penalties or Taxes upon SmartFinancial or SmartBank, or any of their Subsidiaries, under Section 502(i) of ERISA or Section 4975 of the Code.
(iii) No liability to the Pension Benefit Guaranty Corporation has been, or if is expected by the plan SmartFinancial Parties or their Subsidiaries to be, incurred with respect to any SmartFinancial Benefit Plan that is not subject to Title IV of ERISA (a written plan, a description thereof“SmartFinancial Pension Plan”), or with respect to any related trust “single-employer plan” (as defined in Section 4001(a) of ERISA) currently or other formerly maintained by SmartFinancial or SmartBank or any ERISA Affiliate. No SmartFinancial Pension Plan had an “accumulated funding vehicledeficiency” (as defined in Section 302 of ERISA), whether or not waived, as of the last day of the end of the most recent annual reports or summaries plan year ending prior to the date hereof; the fair market value of the assets of each SmartFinancial Pension Plan exceeds the present value of the “benefit liabilities” (as defined in Section 4001(a)(16) of ERISA) under such SmartFinancial Pension Plan as of the end of the most recent plan year ending prior to the date hereof, calculated on the basis of the actuarial assumptions used in the most recent actuarial valuation for such SmartFinancial Pension Plan as of the date hereof; and no notice of a “reportable event” (as defined in Section 4043 of ERISA) for which the 30-day reporting requirement has not been waived has been required to be prepared or filed under ERISA or for any SmartFinancial Pension Plan within the Code and 12-month period ending on the most recent determination letter received from the IRS with respect to each such plan intended to qualify under Section 401 of the Code and the three most recent years (A) the Form 5500s and attached Schedulesdate hereof. Neither SmartFinancial nor SmartBank, (B) audited financial statements and (C) actuarial valuation reports.
(b) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its their Subsidiaries, has provided, or is required to provide, security to any SmartFinancial Pension Plan or to any single-employer plan of an ERISA Affiliates has incurred any liability under Title IV or Affiliate pursuant to Section 302 of ERISA or under Section 412 401(a)(29) of the Code that Code. Neither SmartFinancial nor SmartBank, nor any of their Subsidiaries or any ERISA Affiliate, has not contributed to or been satisfied in full, and (ii) no condition exists that would reasonably be expected obligated to result in Hanover incurring contribute to any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(div) Except Each SmartFinancial Benefit Plan that is an “employee pension benefit plan” (as would notdefined in Section 3(2) of ERISA) and which is intended to be qualified under Section 401(a) of the Code (a “SmartFinancial Qualified Plan”) has received a current favorable determination letter from the IRS (or, individually or in the aggregatecase of an IRS pre-approved plan, reasonably be expected the pre-approved plan has a current IRS opinion or advisory letter upon which the SmartFinancial Parties are entitled to rely under applicable IRS guidance), and to the Knowledge of the SmartFinancial Parties there are no facts or circumstances that could result in a material liability to Hanover, each Hanover Benefit the revocation of any such favorable determination letter. Each SmartFinancial Qualified Plan that is an “employee stock ownership plan” (as defined in Section 4975(e)(7) of the Code) has been operated satisfied all of the applicable requirements of Sections 409 and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, 4975(e)(7) of the Code and the laws regulations thereunder in all material respects, and any assets of any applicable foreign jurisdiction. Except such SmartFinancial Qualified Plan that, as would of the end of the most recent plan year, are not result in a material allocated to participants’ individual accounts are pledged as security for, and may be applied to satisfy, any securities acquisition indebtedness.
(v) Neither SmartFinancial nor SmartBank, nor any of their Subsidiaries, has any obligations for post-retirement or post-employment benefits under any SmartFinancial Benefit Plan that cannot be amended or terminated upon 60 days or less notice without incurring any liability to Hanoverthereunder, all except for coverage required by Part 6 of Title I of ERISA or Section 4980B of the Code or similar state Laws, the cost of which is borne by the insured individuals.
(vi) All contributions and payments (both employer and employee) required to be made with respect to any Hanover SmartFinancial Benefit Plan by applicable Law or by any plan document or other contractual undertaking, and all premiums due or payable (both employer and employee) with respect to insurance policies funding any SmartFinancial Benefit Plan, for any period through the date hereof have been timely made or paid in full by the applicable due date, with extensions, or to the extent not required to be made or paid on or before the date hereof, have been fully reflected or reserved against in the Interim SmartFinancial Financials to the extent required by GAAP or regulatory accounting requirements. Each SmartFinancial Benefit Plan that is an employee welfare benefit plan under Section 3(1) of ERISA either (A) is funded through an insurance company contract and is not a “welfare benefit fund” within the meaning of Section 419 of the Code or (B) is unfunded. Any unfunded SmartFinancial Benefit Plan pays benefits solely from the general assets of SmartFinancial or SmartBank, or their applicable Subsidiary, for which arrangement the establishment of a trust under ERISA is not required. All unfunded benefits for which claims have been filed under a SmartFinancial Benefit Plan have been or are being processed for payment or otherwise adjudicated in accordance with the terms of the applicable SmartFinancial Benefit Plan and paid (to the extent payment is due), or will be paid, within the customary, normal, and routine claims processing and payment time frames followed by the SmartFinancial Benefit Plan and as required by ERISA. No unfunded SmartFinancial Benefit Plan is delinquent in the payment of benefits, and neither SmartFinancial nor SmartBank, nor any of their Subsidiaries, is delinquent in making its required contributions to any such unfunded SmartFinancial Benefit Plan so that the SmartFinancial Benefit Plan can pay benefits on a timely basis.
(vii) All required reports, notice, disclosures, and descriptions (including without limitation Form 5500 annual reports and required attachments, Forms 1099-R, summary annual reports, Forms PBGC-1, and summary plan descriptions) have been filed or distributed in accordance with applicable Law with respect to each SmartFinancial Benefit Plan. All required Tax filings with respect to each SmartFinancial Benefit Plan have been made, and any Taxes due in connection with such filings have been paid. There Since June 30, 2011, neither SmartFinancial nor SmartBank, nor any of their Subsidiaries, has filed or been required to file with the IRS a Form 8928 in order to self-report any health plan violations which are subject to excise taxes under applicable provisions of the Code, and to the Knowledge of the SmartFinancial Parties there are no pending or, to Hanover’s Knowledge, threatened claims by, on behalf of facts or against any of the Hanover Benefit Plans or any assets thereof, other than routine claims for benefits under such plans, that, if adversely determined could, individually or in the aggregate, circumstances that could reasonably be expected to result in a Material Adverse Effect on Hanover SmartFinancial or SmartBank, or any of its Subsidiaries and no matter their Subsidiaries, being required by the Code to file any such Form 8928.
(viii) Except as set forth on Schedule 5.2(s)(viii) of the SmartFinancial Disclosure Memorandum, neither SmartFinancial nor SmartBank, nor any of their Subsidiaries, is pending a party to or bound by any Contract (including without limitation any severance, change of control, or employment agreement) that will, as a result or consequence of the execution or delivery of this Agreement, shareholder approval of this Agreement or the transactions contemplated hereby, or the consummation of the transactions, including the Merger, contemplated hereby, either alone or in connection with any other than routine qualification determination filingsevent, copies (A) entitle any current or former director, officer, employee, or independent contractor of which have been furnished SmartFinancial or SmartBank, or of any of their Subsidiaries, to Xxxxxx and Spinco severance pay or will be promptly furnished to Xxxxxx and Spinco when madechange of control or other benefits, or any increase in severance pay or other benefits, upon any termination of employment or of such Contract after the date hereof, (B) with respect to accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable under, or trigger any withdrawal liability under or any other material obligation pursuant to, any of the Hanover SmartFinancial Benefit Plans before Plans, (C) result in any breach or violation of, or a default under, any of the IRSSmartFinancial Benefit Plans, the United States Department of Labor or the PBGC that would, individually or (D) result in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be payment of any “qualifiedexcess parachute payments” within the meaning of Section 401(a280G of the Code.
(ix) Persons being provided coverage in or under each SmartFinancial Benefit Plan are described in such SmartFinancial Benefit Plan as being eligible for coverage under such SmartFinancial Benefit Plan, and neither SmartFinancial nor SmartBank, nor any of their Subsidiaries, has any liability for improperly including any Person as a participant in any SmartFinancial Benefit Plan in which such Person is or was not eligible for coverage.
(x) All of the SmartFinancial Benefit Plans are nondiscriminatory with respect to eligibility and benefits under applicable provisions of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(a) of the Code, respectively, and each trust maintained under any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9) of the Code has satisfied such requirements and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trustother Laws.
(fxi) No Hanover Benefit Plan is maintained outside All SmartFinancial Voluntary Plans satisfy the jurisdiction of the United Statesregulatory safe arbor requirements provided by ERISA in order for such SmartFinancial Voluntary Plans to be considered not to be or to have been established, sponsored, or covers any employee residing maintained by SmartFinancial or working outside the United States.
(g) Except as otherwise provided in or contemplated by this Agreement SmartBank or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall their Subsidiaries and not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any to constitute an “employee benefit or any increase in any vested interest or entitlement plan” subject to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to HanoverERISA.
Appears in 1 contract
Benefit Plans. (a) Section 5.13(a) of the Hanover Disclosure Letter lists each material “employee benefit plan” (Except as defined provided in Section 3(3) of ERISA), and all other material employee benefit, bonus, incentive, deferred compensation, stock option (or other equity-based), severance, change in control, welfare (including post-retirement medical and life insurance) and fringe benefit plans, programs and arrangements, whether or not subject to ERISA and, whether written or oral Exhibit 3.20:
(i) sponsored, maintained or contributed Seller has delivered to or required to be contributed to by Hanover or any of its Subsidiaries or to which Hanover or any of its Subsidiaries is Purchaser a party and (ii) in which any individual who is currently or has been an officer, director or employee of Hanover (a “Hanover Employee”) is a participant (the “Hanover Benefit Plans”). Neither Hanover, any of its Subsidiaries nor any ERISA Affiliate thereof has any commitment or formal plan, whether legally binding or not, to create any additional employee benefit plan or modify or change any existing Hanover Benefit Plan that would affect any Hanover Employee except in the ordinary course of business. Hanover has heretofore delivered or made available to Xxxxxx and Spinco true and complete copies copy of each Hanover Benefit Plan and any amendments related funding agreements, including all amendments, supplements, and modifications thereto (or if and Section 3.20 of the plan Schedule includes a description of any such item that is not a written plan, a description thereofin writing), any related trust or other funding vehicleall of which are legally valid and binding and in full force and effect, and there are no defaults thereunder, notwithstanding the termination of the Benefit Plans prior to the Closing Date;
(ii) Seller has delivered to Purchaser a true and complete copy of the most recent annual reports or summaries required to be prepared or filed under ERISA or the Code report and actuarial report for each Benefit Plan, and the most recent Internal Revenue Service determination letter received from the IRS with respect to letter, if any, for each such plan intended to qualify under Section 401 of the Code Benefit Plan and the three most recent years (A) the Form 5500s and attached Schedules, (B) audited financial statements and (C) actuarial valuation reports.each amendment thereto;
(biii) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, (i) neither Hanover nor any of its ERISA Affiliates has incurred any liability under Title IV or Section 302 of ERISA or under Section 412 of the Code that has not been satisfied in full, and (ii) no condition exists that would reasonably be expected to result in Hanover incurring any such liability.
(i) No Hanover Benefit Plan is a “multiemployer pension plan,” as defined in Section 3(37) of ERISA and (ii) none of Hanover, or any ERISA Affiliate thereof has made or suffered a “complete withdrawal” or a “partial withdrawal,” as such terms are respectively defined in Sections 4203 and 4205 of ERISA, the liability for which would reasonably be expected to result in a material liability to Hanover.
(d) Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover, each Hanover Benefit Plan has been operated and administered in all respects in accordance with its terms and applicable law, including, but not limited to, ERISA, the Code and the laws of any applicable foreign jurisdiction. Except as would not result in a material liability to Hanover, all contributions required to be made with respect to any Hanover each Benefit Plan under the terms of that Benefit Plan, ERISA, or other applicable law have been timely made. There are no pending orIn the case of each Benefit Plan that is subject to Title 1, to Hanover’s KnowledgeSubtitle B, threatened claims byPart 3 of ERISA, on behalf of or against any the net fair market value of the Hanover assets held to fund that Benefit Plans or any assets thereofPlan as of the Closing Date exceeds the actuarial present value of all accrued benefits, other than routine claims for benefits under such plansboth vested and non-vested (based upon projected earnings increases of five percent (5%) per annum, that, if adversely determined could, individually or in the aggregatecase of a final pay plan), reasonably be expected to result under that Benefit Plan as of the Closing Date;
(iv) each Benefit Plan complies currently, and has complied in a Material Adverse Effect on Hanover the past, in form and operation, with the applicable provisions of ERISA, the Code, and other applicable law (including foreign law);
(v) no excise tax is due or any of its Subsidiaries and no matter is pending (other than routine qualification determination filings, copies of which have been furnished to Xxxxxx and Spinco or will be promptly furnished to Xxxxxx and Spinco when made) owing from Seller with respect to any of the Hanover Benefit Plans before the IRS, the United States Department of Labor or the PBGC that would, individually or "prohibited transaction" (as defined in the aggregate, reasonably be expected to result in a material liability to Hanover.
(e) Each Hanover Benefit Plan intended to be “qualified” within the meaning of Section 401(a) of the Code has received a determination letter from the IRS stating that they and the trusts maintained thereunder are exempt from taxation under Section 401(asection 4975(c)(1) of the Code) relating to any Benefit Plan. No amount is due or owing from Seller to the Pension Benefit Guaranty Corporation under title IV of ERISA for any reason, respectively, and each trust maintained under or to any Hanover Benefit Plan intended to satisfy the requirements of Section 501(c)(9"multiemployer pension plan" (as defined in section 3(37) of the Code has satisfied such requirements ERISA) on account of any withdrawal therefrom; and, in any such case, no event has occurred or condition is known to exist that would reasonably be expected to adversely affect such tax-qualified status for any such Hanover Benefit Plan or any such trust.
(fvi) No Hanover Benefit Plan is maintained outside the jurisdiction of the United Statessince September 2, or covers 1974, Seller has not terminated any employee residing or working outside benefit plan subject to title IV of ERISA for which a Notice of Sufficiency has not been issued by the United StatesPension Benefit Guaranty Corporation.
(g) Except as otherwise provided in or contemplated by this Agreement or any Executed Transaction Agreement, the consummation of the transactions contemplated by this Agreement shall not result by itself or with the passage of time in the payment or acceleration of any amount, the accrual or acceleration of any benefit or any increase in any vested interest or entitlement to any benefit or payment by any employee, officer or director under domestic or foreign law that would, individually or in the aggregate, reasonably be expected to result in a material liability to Hanover.
Appears in 1 contract
Samples: Asset Purchase Agreement (Premier Alliance Group, Inc.)
